Declaration of Independence Day Edition
July 4, 2007

The Disturbing Case of Kenneth Foster

Texas Wants to Kill Another Man, the Law be Damned

By RON JACOBS

So, it's the week of the Fourth of July-the date the United States celebrates its struggle for independence from England and its throne. Scooter Libby, who was convicted (in the place of more serious crimes and perpetrators) of lying to Congress about matters of state has just had his 30 month sentence commuted.

The reason for the July 4th date is because it was the date in 1776 that the Declaration of Independence was signed. Of course, this independence was really only for the southern white male planters and their northern counterparts, but the seed it planted has inspired men and women around the world to make the words of that declaration's preamble universal. Yet, we are still quite far from that goal, even here in the United States. Indeed, especially here in the United States. Poverty prevents millions from achieving their right to "life, liberty and the pursuit of happiness." Hundreds of thousands of those denied these rights end up in prison not only lose the latter, but quite literally lose their liberty. Of those hundreds of thousands, hundreds have lost their lives because of the state's' insistence on their right to execute certain prisoners, most of them black and brown-skinned.

One of these men is Kenneth Foster, a young African-American resident of Texas who is facing execution at the end of August 2007. His case revolves around a very controversial law known as the "law of parties." In essence, this law imposes the death penalty on any body involved in a crime where a murder occurred, even if the accused was not involved in the murder or even aware that the killer intended to commit murder. If this law were applied to Scooter Libby's case, there's a good chance that Dick Cheney and Karl Rove would have also been convicted, even if they didn't know that Libby was going to lie to Congress.

Kenneth is also a founding member of the Death Row Inner-Communalist Vanguard Engagement, or DRIVE. Members of DRIVE have organized in the worst of circumstances to protest the awful living conditions on Texas' death row and against the death penalty in general. DRIVE is a first-of-its-kind social movement with a growing base of support in the U.S. and internationally. They have also created a politicized environment on death row in which condemned inmates are refusing to walk to their
executions, forcing guards to drag them instead. More information about DRIVE is available online at http://www.drivemovement.org

I ran into Marlene Martin of the Campaign to Abolish the Death Penalty in Chicago a couple of weeks ago and she told me about the case and gave me the name of Bryan McCann, who is an organizer of the campaign to prevent Foster's execution. Bryan has been a member of the Campaign to End the Death Penalty since 2005. His writing on the Texas death penalty has appeared in the Socialist Worker and New Abolitionist. He lives in Austin, Texas where he is a PhD student in Communication Studies. I contacted Bryan and we carried on the following exchange.

Hi, Bryan. I just finished reading the materials on Kenneth Foster's case sent to me by the Campaign to End the Death Penalty, along with some other news articles that I found on line. To help out the readers, can you answer a couple background questions. Who is Kenneth Foster? Can you summarize the state's case against Foster?

Kenneth Foster is a native of San Antonio, Texas. He has been on death row since 1997, sentenced to death for the 1996 murder of Michael LaHood, Jr. Kenneth did not shoot LaHood. This is not an innocence claim made solely by his supporters. The state of Texas will be the first to admit that Kenneth is factually innocent of murder. How is he still on death row? Texas's Law of Parties, the only legislation of its kind in a death penalty state, holds individuals criminally responsible for the offense of another if the prosecution can prove they actively promoted or assisted the commission of the offense or should have anticipated that it would have taken place.

On August 14, 1996, Kenneth Foster was driving a car carrying Mauriceo Brown, Dewayne Dillard, and Julius Steen. That night, Brown and Steen committed two armed robberies, at which point Kenneth asked Dillard to persuade them to stop. On the way home, Foster ended up behind a car carrying Michael LaHood, Jr. and his girlfriend, Mary Patrick. Concerned that Foster was deliberately following them, Patrick waved the car down in front of the LaHood residence. Brown exited the car, presumably to talk to Patrick and get her phone number. Dillard testified that no one anticipated violence, and that Brown took the gun without permission or knowledge of the other men. When Brown approached the woman, her boyfriend Michael LaHood appeared in the driveway. Brown and LaHood exchanged words, a shot was fired, and Michael LaHood lay dead. All of this transpired while the other three men remained in the car, 80 feet away from the scene of the crime, with the windows rolled up and radio turned on. After hearing the gunshots, Kenneth began to drive away, but Brown managed to get back in the car.

All of the above is well-corroborated by all four of the men on that evening. Brown admitted to shooting LaHood but insisted it was in self defense. However, the state tried Kenneth and Mauriceo together for capital murder, basing Kenneth's charges on the Law of Parties. They claimed that because two robberies had already taken place that night, he should have anticipated that Brown might have tried to rob LaHood and Patrick. Because he should have anticipated a robbery could have taken place, he also should have known a murder could possibly take place. This shaky logic, along with testimony from Steen (who later retracted part of his testimony), was enough to sentence both Brown (who was executed in 2006) and Kenneth to death.
What kind of legal representation did he have at trial?

Like the vast majority of death row inmates, Kenneth had a court-appointed attorney. This is largely due to the fact that the victim, Michael LaHood, Jr.'s father was a prominent San Antonio lawyer. This fact made it difficult for Kenneth's family to find an attorney willing to take the case. Kenneth's lawyers failed him on many counts, not least of all failing to interview Julius Steen during the original trial. In the sentencing phase, they failed to mention that both Kenneth's parents were drug addicts and his mother died of AIDS. This gave the jury little basis for sympathy. Also, Brown's attorney referred to his client as an "animal" and a "thug." Because the two men were tried together, this likely prejudiced Kenneth in the eyes of the jury.

Has the case been appealed? What were the results and reasons given?

With the exception of his subsequent writ of habeas corpus, Kenneth's appeals have been exhausted. In 2005, federal District Judge Royal Furgeson overturned Kenneth's death sentence on the grounds that it violated his Eighth Amendment rights. Furgeson ruled that the jury in the original trial was not asked to determine if Kenneth harbored any intent to kill Michael LaHood. As a result, Kenneth's case constituted a misapplication of the Law of Parties. However, Texas appealed the decision to the Fifth Circuit Court of Appeals and won. Since then, Kenneth has categorically lost all of his appeals

What is the "law of parties?" Has it ever been on the books in other states? I noted in the summary on the law that the Supreme Court that the " imposition of the death penalty on a person who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend to kill violates the 8th and 14th Amendments of the US Constitution." Can you provide the readers with a comprehensive history of this law and its interpretation in the courts?

The Law of Parties was adopted in 1974. It states that a person is equally responsible for the criminal conduct of another if "acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids or attempts to aid the other persons to commit the offense" or "If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy." The U.S. Supreme Court has indeed ruled on laws of this nature, drawing the conclusion that you cite above in the 1982 Enmund v. Florida decision. However the court has not heard any cases from Texas related to this issue. The only other case related to policies such as the Law of Parties is the 1987 Tison v. Arizona decision in which the Justices upheld the death sentences of two brothers who aided their father in a deadly prison escape. The decision stated that ""knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state." They added that "We will not attempt to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty. ... Rather, we simply hold that major participation in the felony ... combined with reckless indifference to human life is sufficient to satisfy the Enmund culpability requirement." Thus, the legal precedent on policies like the Law of Parties remains highly ambiguous.

Obviously, you feel that this law has been wrongly applied to Kenneth Foster. How and why?

There is very little basis for believing that Kenneth had any malicious intent toward Michael LaHood, Jr. Yes, he was driving the car that night and robberies took place. However, there is every reason to believe that Kenneth had no idea LaHood's life was in danger. There was also no conspiracy to rob him. He did not even know the gun had left the car. His jury, moreover, was only instructed to determine if he was associated with Brown and should have anticipated his actions. As Judge Furgeson pointed out in 2005, these instructions are not consistent with the intent of the Law of Parties. Kenneth is effectively facing an execution date for a failure of hindsight. As Kenneth's criminal lawyer, Keith Hampton, wrote in his federal appeal, "By employing the conspiracy liability statute, the state is able to make persons death-eligible on nothing greater than a negligence standard ­ that the defendant 'should have anticipated' that his conspirator would, in the course of any planned felony, intentionally kill another person." He added, "negligence is the least culpable mental state known to criminal law."

What about the justness of the law itself?

The Law of Parties is a pretty transparent attempt to optimize convictions. By placing such a low threshold of proof, under which someone can be sent to death for failing to anticipate the actions of another, prosecutors have a multitude of strategies they can enlist to negotiate plea bargains and send multiple people to prison or the death chamber. Sentences ultimately boil down to who chooses to cooperate with the state, rather than who actually committed the crime. For example, Irineo Montoya was executed in 1997 for restraining a man while Juan Fernando Villavicencio stabbed him. Villavicencio, on the other hand, was acquitted of the murder after key witnesses in both trials (relatives of Villavicencio) changed their testimonies. The Law of Parties shows the lie to the notion of the death penalty as something reserved for the "worst of the worst." Instead, it shows what a cynical political strategy the sanction actually is. Also, by asking jurors to determine if a defendant should have anticipated that a crime was going to take place, when that very jury obviously already knows that it has, the prosecution is asking individuals to make life and death decisions based on what seems logical in retrospect. It is a law that is ripe for abuse.

I noticed when reading the materials accompanying the case that Foster attempted to drive away after LaHood was shot. What does this mean to the case and how important is it to proving Foster's intent (or lack of intent)?

This important piece of information never came out at the original trial. Unfortunately, it is very difficult to have new evidence stand during appeals, as the defense must be able to demonstrate that something prevented them from acquiring the evidence in the first place. One of the jurors in Kenneth's original trial said that if he had known Kenneth tried to drive away, he would have voted for a different verdict.

When the trial judge told the jury that they could "find the defendant Kenneth Foster guilty of the offense of capital murder, though he may have had no intent to commit the offense," was the judge correct?

According to the Law of Parties, a defendant is responsible for another person's felony if it is committed in furtherance of a crime they were both responsible for. However, the jury should have been asked to determine if Kenneth was an active agent in a criminal conspiracy that he either knew would result in LaHood's death or should have anticipated would have ended in murder. Under the judge's instructions, the prosecution did not even have to meet this low threshold of proof.

Most everyone knows that Texas leads the United States in executions. Given Texas' reputation, how does the defense hope to prevent Kenneth's execution?

Texas will perform its 400th execution since 1982 in 2007. It is obviously a state out of control in its use of the death penalty. Because of this, there are many reasons to believe that Kenneth's odds are rather low. Furthermore, conventional wisdom dictates that little hope is left when an execution date is set. However, the death penalty is on the defensive in the United States in a way it has not been for years. Beginning with the 2003 death row commutations in Illinois, the nation as a whole has begun asking hard questions about capital punishment, especially regarding innocence and lethal injection. While Texas still manages to be the exception to the rule in its flagrant use of capital punishment, there are signs that the tide is turning here, as well. Recently, the Supreme Court decided against the Texas Court of Criminal Appeals in three death penalty cases. Also, the CCA has been deciding in favor of death row defendants at an unusual rate. Over the past several years, the cases of Ruben Cantu, Carlos DeLuna, and Cameron Todd Willingham have emerged as instances in which innocent men were almost certainly put to death in Texas. The statewide anti-death penalty movement continues to grow in size and confidence. While it is hard to make definitive predictions about what will or will not happen on August 30 (Kenneth's scheduled execution date), I believe we have plenty of reasons to be hopeful. Texas is beginning to feel pressure where its use of the death penalty is concerned, and a case such as Kenneth's is certainly one that can fan the flames of public discontent and create enough political pressure to halt his execution.

You are a member of the Campaign to End the Death Penalty. Can you tell us about their work?

Formed in 1998, the Campaign to End the Death Penalty is a national grassroots anti-death penalty organization based in Chicago. We oppose the death penalty for five reasons: it is racist, it targets the poor, it condemns the innocent to die, it does not prevent crime, and it constitutes cruel and unusual punishment. We organized in order to call attention to the broad systemic implications of the death penalty, insisting that it is inseparable from the unjust society in which it operates. Committed to putting those who experience the death penalty first-hand on the frontlines of this battle, we work closely with current and exonerated death row inmates, as well as their families. The Campaign was active in the movement that persuaded former Illinois Governor George Ryan to clear the state's death row in 2003. Our chapters have also played leading roles in the movements to save Gary Graham, Stan "Tookie" Williams, Vernon Evans, and Kevin Cooper. The Austin chapter is also working to win a new trial for Rodney Reed, an innocent man on who has been on Texas's death row since 1998. Our national website is http://www.nodeathpenalty.org.

What can people do to help prevent this execution?

Our experience teaches us that we cannot halt executions by appealing to the better intentions of men like Texas Governor Rick Perry. Rather, those who wield the power to execute individuals respond to political pressure. That is why we must build a vibrant and visible movement around the Kenneth Foster case. Those living in Texas should join the Save Kenneth Foster Campaign and help us as we plan a July 21 press conference, rally, and benefit concert in Austin. Those who are out of state can visit the Save Kenneth Foster Campaign blog at http://savekenneth.blogspot.com/ and download petitions, clemency letters, and case fact sheets. People can also learn more about Kenneth and his case at http://www.freekenneth.com. Fortunately, a number of activists form across the country are beginning to take notice of Kenneth's case. What we need is a broad base of awareness and action to put the spotlight squarely on Texas, a state that for too long has continued to execute individuals with impunity.