Sentenced to die for having seen a crime
August 4th, 2007
DR for death row. Two initials marked on Kenneth Foster's white
pants. Two indelible letters to underline, as if it were necessary,
that the countdown has started. Since May this young death row
prisoner, 30-year old, knows the Texas authorities have set his
execution date for August 30th, a Thursday, around 6pm. A date and a
time programmed 10 years ago, almost to the day, when he was
sentenced to death by a court in San Antonio not for having killed
someone but for not having ever, according to the jury, premeditated
or anticipated a crime and having ran away in a car with the
murderer. Kenneth Foster is here, he stands in one of the visiting
cages at the Polunsky Unit, home of Texas death row, made of steel
and concrete, lost somewhere on a country road in Livingston, a small
ordinary town north of Houston. The guard locks the door and
mechanically unlocks the cuffs behind his back.
He sits down. He sets his watch down in front of the safety glass
partition as to better control time, the forty-five minutes granted
for the interview. He smiles. "Hello" he says while picking up the
phone. "How are you?" Apparently calm, Kenneth Foster does not
demonstrate any signs of weakness, no attempt to dominate his fear.
Tall guy with immediate charm, he speaks well, aptly uses the flow of
words such as the rap musician he would have liked to become before
He keeps the hard times to himself, as to protect himself, within the
four walls of his tiny cell, of the fatal instant and from the
intrusion by the department of corrections, which take a prisoner to
his death in Huntsville, a near-by town where Texas executes its
death row prisoners by lethal injection. Yesterday it was Lonnie
Earl Johnson's turn, a companion, "a friend" whom he had known for
nine years. "Those moments are hard, they strike the spirit,
challenge the intellect and the emotions... One keeps looking at one's
He says he does not have any "hatred or anger, only rage but the
positive kind that feeds energy, the fuel". The system? "I know it is
unfair, I know the underlying dose of racism in the United States.
But it is up to us to be intelligent, at least as much as those who
lead us." Not once does he accuse those who sentenced him based on
the color of his skin. He will not mention the victim's father,
Michael Lahood, a white attorney in San Antonio. Kenneth Foster does
not raise the hopeless injustice of being born on the wrong side of
the social fence. He simply sticks to the facts, recalls that he
never killed anyone and that he was incapable of predicting that
Mauriceo Brown, one of the three men he went out with that night of
August 1996, was going to kill a certain Michael Lahood Jr.
On two occasions that night, he attempted to stop this night trip and
to leave the small group he hardly knew and that had just committed
two pathetic robberies, stealing $300 from passers-by picked at
random. When the shot was fired, he said he did not understand what
was going on, he saw nothing, only the pale and panting face of
Mauriceo Brown who had come out of the car a few seconds ago to
follow a girl in a private property. Kenneth Foster got scared. In
one move, he put his foot down on the throttle. He was 19 years old
and had just borrowed his grandfather's car, the only member of his
family who cared for him.
Then came the trial, those "neverending lines of errors", this first
court-appointed attorney "who was obviously a beginner", the
magistrate who refused to try him separately from the murderer, the
testimony of a confused Julius Steen, the third man who will change
his deposition on two occasions years later, to affirm that he had
not played any direct or indirect part in the death of young Lahood.
Kenneth Foster was tried under the law of parties, which allows the
sentencing of secondary participants to a crime. A law passed by half
a dozen states in the 70's, but that only Texas uses for capital
punishment. In total, experts estimate that this law has been a
determining factor in the execution of twenty death row prisoners.
The death row prisoner nods gently, takes a breath. Five times during
his appeals he asked to be re-tried, five times his request was
denied. Those years of procedure have only brought him technically
closer to death, one court order after another. "Once started, this
machinery is very hard to stop" he explains, almost in a professional
Also sentenced to death, Mauriceo Brown was executed on July 17th,
2006. Kenneth Foster says it hit him, but hardly makes a comment: "I
was never very close to him, not even here in prison."
Kenneth Foster still hopes the nine Judges of the CCA in Austin will
review his sentence in the next few days, or that the Board of
Pardons and Paroles and Governor Perry, who has never granted
clemency, will grant him a new trial. He says: "Yes Texas is the
state where the largest number of prisoners are executed in this
country, nineteen since the beginning of the year." And states: "I do
no want prayers or candles. I want people to fight and stand up for
me, to show these politicians that some people think differently."
Kenneth Foster looks at his watch and signals we have little time
left. "It's getting close" he whispers in the phone. On his fingers,
he counts the number of scheduled executions before his: four out of
the 390 death row prisoners confined within these walls. "I have to
be vigilant and precise with the numbers. Each decision by the
authorities is important for me."
He says he gets information from his attorneys, his loved ones who
visit him regularly, from the radio mostly the public channel NPR.
"Can you imagine, we don't even have a television..." An additional
punishment by the system, according to him, a daily sanction which
comes on top of the "privilege" to make one five-minute phone call
every ninety days. He adds, while picking up his watch: "Each death
sentence is a regression, a defeat for society. In any case it will
never be a solution no matter what the crime, as unforgivable as it
may be." He stands up. His 13-year old daughter is due to visit him
later this week. He puts the phone down and smiles one last time.