August 20, 2007

Helping kill or just the driver?

90 feet from murder in '96, Texas robber still fighting execution

By EMILY RAMSHAW, The Dallas Morning News

AUSTIN - Kenneth Foster's supporters say he was up for getting high and
robbing a few people on that San Antonio night in 1996 but never anticipated
the spree would lead to murder.

He was in a car nearly 90 feet away when one of his partners shot and killed
Michael LaHood in what jurors determined was a botched robbery. Barring a
last-minute commutation by the Texas Board of Pardons and Paroles and Gov.
Rick Perry, he'll be executed for the crime Aug. 30.

Mr. Foster is one of an estimated 80 Texas death row inmates convicted under
the state's "law of parties" - which authorizes capital punishment for
accomplices who either intended to kill or "should have anticipated" a
murder, regardless of whether they pulled the trigger.

Most states have such laws for many types of crimes, but Texas is the only
state to apply it broadly to capital cases. Death penalty opponents decry
its use, saying it broadens capital punishment far too much.

Prosecutors argue that all those responsible must be held accountable for
such heinous acts.

"But for Mr. Foster driving that car, but for his planning, his decision to
engage in this crime, Mr. LaHood would be alive," said Cliff Herberg, a
Bexar County first assistant district attorney whose office prosecuted the
case. Letting Mr. Foster off the hook "would be like saying the 9/11
hijackers on the plane weren't guilty of anything because they're not the
ones who flew it."

Opponents of the death penalty hope the Foster case brings a focus to the
issue. They're holding rallies, sending mass e-mails and operating blogs
aimed at tearing down the Texas law of parties.

Short of time

Keith Hampton, Mr. Foster's attorney, estimates that 20 death row inmates
convicted under the law of parties have been put to death in Texas in the
last two decades.

"As far as putting people on death row, there isn't anywhere in the country
that even approaches the reach of Texas' provision," Mr. Hampton said.

But it's also about trying to save his client, and he says he's running
short of time and legal options. The Texas Court of Criminal Appeals, the
state's highest criminal court, upheld Mr. Foster's sentence for a final
time this month.

Mr. Foster "is trying to stay focused," his lawyer said. "But he has pretty
bad days."

The summer night was trouble from the start: Mr. Foster, at the wheel of his
grandfather's rental car, cruised around town with three of his buddies,
swilling 40-ounce beers and smoking marijuana.

By midnight, they agreed to make some cash by holding a few people up.
Wearing bandannas and brandishing a .44-caliber pistol, they picked out
targets and committed two robberies, netting a couple hundred dollars.

Toward the end of their evening, the men ended up in a neighborhood they
didn't recognize, trailing a Mustang and a Toyota onto a dead end street.
When those cars pulled into a driveway, Mr. Foster started to pull away. But
he stopped when a woman got out of the Toyota and flagged them down,
demanding to know why they were following her.

The men in the car engaged the woman in a teasing, flirtatious conversation.
When she headed up the driveway, Mauriceo Brown, one of Mr. Foster's robbing
partners, hopped out of the car after her, running into her boyfriend, Mr.
LaHood, up by the carport. After a couple of minutes, Mr. Brown pulled out
his gun and fired one shot, killing Mr. LaHood.

According to the woman's trial testimony, Mr. Brown held them up, demanding
their keys and wallets. But the men in the car, including Mr. Foster, have
testified that they thought they were done robbing for the night and that
there was no plan to stick up - and certainly not to murder - Mr. LaHood.

Mr. Brown, who confessed to the murder after police stopped their car, later
testified he went up to the woman to try to get her phone number and fired
his pistol after he thought he heard Mr. LaHood **** a gun. (No weapon was
found on Mr. LaHood). Mr. Brown, who testified he never would've embarked on
a holdup by himself, was executed last summer for the murder. The two other
passengers in the car, who were tried separately, received life sentences.

Mr. Foster's attorney believes his client's fate was sealed during his joint
trial with Mr. Brown, when one of his robbing partners testified that "it
was kind of like, I guess, understood, what was probably fixing to go down"
when Mr. Brown got out of the car.

It was enough for jurors - and later, the appeals court - to support a
capital murder charge for Mr. Foster on the basis of conspiracy: They
believed Mr. Foster, as the getaway driver on two previous robberies, either
knew what was about to occur or should have anticipated it.

Mr. Foster's jury "had to find that unanimously, beyond a reasonable doubt,"
said Shannon Edmonds, director of governmental affairs for the Texas
District and County Attorneys Association. "The fact that the defendant
claims the jury is wrong is not news."

But Mr. Foster's attorney never got the chance to cross-examine the two
partners who received life sentences. One has since given a sworn statement
to Mr. Hampton saying he didn't understand Mr. Brown's intent was to rob Mr.
LaHood until Mr. Brown had already made his way up the driveway. The other
has testified that Mr. Foster asked the men all night to quit and worried
about returning the car to his grandfather.

Mr. Foster's attorney and his friends and family have used this new
testimony to paper the courts with last-minute appeals. And they say they're
bombarding Mr. Perry's office with desperate pleas for a commutation for Mr.
Foster, who, from his cell in Livingston, has become an advocate for humane
treatment for death row inmates since he joined their ranks a decade ago.
This month, Texas is scheduled to execute its 400th death row inmate since
1985.

"It's a classic case of being in the wrong place at the wrong time," said
Bob Van Steenburg, of the Texas Coalition to Abolish the Death Penalty. "He
should absolutely not be executed."

Brother disagrees

But Nico LaHood, who raced out of the house that night 11 years ago to find
his older brother dead in the driveway, said these activists, "while
well-intentioned, are ill-informed."

"We support the laws of the state of Texas, we support the jury of 12, we
support their verdict, which was a just verdict," he said. Death penalty
opponents "are taking a stance on something they don't understand. Was your
son, was your brother, shot in the face in your driveway? I would venture to
say probably not."

In a last-ditch effort, Mr. Hampton is filing a shot-in-the-dark brief with
the U.S. Supreme Court, referring to the high court's 1982 ruling in Enmund
vs. Florida that forbade capital punishment for a getaway driver sitting in
the car during a botched robbery-turned-murder. The court decided the case
under the premise that the driver "did not kill or intend to kill, and thus
his culpability is different from that of the robbers who killed."

In a separate case five years later, the justices ruled the death penalty
can be imposed on an accomplice if he or she was a "major participant" in a
murder and acted with "reckless indifference" to human life.

"There are constitutional limitations on what you can do to somebody who
isn't the triggerman," said Steven Shatz, director of the University of San
Francisco's Keta Taylor Colby Death Penalty Project. "Merely participating
in a robbery is not sufficient, is not in itself a reckless disregard."

Mr. Shatz said there are hardly any people on California's death row who
aren't actual killers.

The Texas Board of Pardons and Paroles generally doesn't make a
recommendation to the governor's office until a few days before the
execution. And Mr. Perry, who isn't known for showing leniency toward death
row inmates, won't take a position until after the board rules, spokesman
Robert Black said.

Mr. Hampton's not holding out much hope.

"The track record in Texas is extremely, extremely bad," he said.

---

Source : Dallas Morning News

http://www.wfaa.com/sharedcontent/dw...ies/DN-deathpe
nalty_20tex.ART.State.Edition2.421d389.html

Hi Lulu,

Thank you for highlighting this case.

I have read everything the Foster site says and of course what the LaHood family have said. And I just can't help thinking that this is an injustice for Kenneth. It doesn't make sense in the light of all the arguments about what and who the DP is intended for. I don't remember the bible saying 2 eyes for an eye! Sorry that's flippant but I'm sure people will see my point.

Kenneth was wrong to rob and participate in the other crimes that evening but HE did not kill anyone.

I really hope this has a happy ending for him, I don't know him personally but I really care what happens to him.

Rachel

its a good thing that you care for people that are lock up. I have been doing this for many years, and a fair warning, do not allow no one tell u any different, meaning that you are a special person for caring.

Thank you.

My partner is supportive but does not feel quite as I do about it. I think that for the most part they deserve a second chance and the compassion that costs so little to give.

I have to admit I love receiving their replies almost as much as they enjoy receiving mine. I don't know why writing inmates appealed to me, but I will never allow anyone to change my mind that they are human too and need the love and respect of others despite their crime.

After all is or should anyone be defined by one mistake? I would hate to be judged as only worth my worst ever mistake.

Its ok. My hubby didn't at first, he didn't mind me falling my heart and what i believed in, but after awhile he seen the injustice that takes place.