The Texas Court of Criminal Appeals has denied the appeal of Kenneth Foster Jr, even though three of its members say he may be innocent (every judge on the CCA is a Republican).

The decision to stop the execution of Foster, who everyone agrees did not kill anyone, now lies in the hands of Governor Perry and the Texas Board of Pardons and Paroles. But the members of the Texas Legislature also have a responsibility to speak out, because it is an Act that they passed that the Court of Criminal Appeals majority relied on to brush off Foster’s claim of innocence. It is time for the Texas Legislature to tell Gov Perry to stop this execution.

Foster was just the driver of a car out of which another occupant (Mauriceo Brown) got out and killed someone 80 feet away from the car. New evidence supports Foster’s defense that he did not know that Brown intended to kill someone. But the majority of the CCA does not think it should take into account this new evidence.

According to an email from Foster’s lawyer, the reason the CCA majority thinks they can ignore this new evidence is because of a law passed by the Texas Legislature in 1995, which forbids “the judges of the Court of Criminal Appeals from considering new evidence in death penalty cases, even if the judges unanimously believed the new evidence would spare a life. This Act, passed in 1995, prevents judges from giving relief to people who they believe are not to be subjected to death.”

Here is the dissenting opinion in the Kenneth Foster, Jr case, written by Judge Tom Price of the Texas Court of Criminal Appeals and joined by two other judges, Judge Charles Holcomb and Judge Cheryl Johnson. These three judges agree that “the applicant has identified new facts that might support a bare claim of actual innocence, under Ex parte Elizondo, (3) and would therefore allow the applicant to proceed on his fourth claim for relief”. They would have granted him a stay of execution “to allow him to pursue this claim through the ordinary course of habeas corpus proceedings.”

They further write that “Applicant now alleges that, since his direct appeal and even since he filed his initial application for writ of habeas corpus, he has had an opportunity to interview both Steen and the other surviving co-conspirator, Dillard. Both have given affidavits in which they assert, in essence, that by the time Brown got out of the car to rob LaHood, the conspiracy had run its course, at least as far as the other three were concerned, and Brown was acting out of an independent impulse. If these assertions are true, it appears evident that the applicant could not be guilty of capital murder under either of the theories of the law of parties that were submitted to the jury. (italics added for emphasis by TMN).

Unfortunately, the five judges writing in the majority, including Judge Sharon Keller, did not agree with the three dissenting judges and voted to execute Foster.

Judge Barbara Parker Hervey did not participate in either the majority or the dissenting opinion.

The final vote then was 5-3-1 in favor of execution.

Write members of the Texas Legislature urging them to help persuade Governor Perry to stop the execution of Kenneth Foster, Jr.

More than 300 people have already written just since yesterday.

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