500 people have used the alert that we put up on Wednesday asking people to write the members of the Texas Legislature about the August 30th execution of Kenneth Foster. It is possible that even more people have written directly on their own, but we don’t have a count on them. The emails are all personally written by the person sending them. Many of them are very moving and show that the writer has a good understanding of the case.
Here is an example of one of the letters:
Esteemed Legislator:
As you may know, Kenneth Foster Jr. is slated to be executed on the thirtieth of this month. This is a miscarriage of justice, as this man is innocent of murder or conspiracy to murder. This is not to excuse his other crimes, for he should be found guilty of armed assault and theft due to the fact that he was with a group of young men when they robbed several individuals. But armed robbery is not murder and he should be punished according to the magnitude of his crime.
This email should also not be construed as trying to excuse the murder of Michael LaHood or cheapen the loss of the LaHood family. It is right and appropriate that the individual responsible for Michael’s death should be punished accordingly. In fact, he already has. Mauriceo Brown, the man who shot and killed Michael LaHood, was executed by the great state of Texas on July 19, 2006.
Now I realize that as a legislator you personally do not have the power to stop this execution, but I also realize that you are in a position to access the governor and effect his decision in this case. Furthermore, it has come to my attention that an act passed in 1995 forbids the Court of Criminal Appeals from considering new evidence in death penalty cases. To me, this seems like a perversion of the law, as the primary purpose of any appellate court is to consider new evidence that might effect the decision of guilt or innocence in any given case.
This is something that you can effect personally, and I urge you to work with your fellow legislators on repealing this act as soon as possible.
Please consider my concerns as you would the concerns of any other citizen.
It is not true that current Texas State Law forbids the Texas Court of Criminal Appeals from considering new evidence in death penalty cases. Whereas, the Texas Court of Criminal Appeals is usually most unfriendly towards the convicted in all criminal cases, there is no law that forbids that court from considering new evidence.
In 1995 the Texas State Legislature passed Texas Code of Criminal Procedure Article 11.071. This statute deals with Texas State Habeas appeals in death penalty cases. For any condemned inmate’s first appeal, any and all claims regarding new evidence may be filed and presented to the appellate court.
However, for any subsequent Texas State habeas appeal in a death penalty case, the condemned must first prove to the court that the legal basis or the factual basis for the subsequent appeal was not available when the first Texas State habeas appeal was filed.
This, the rules associated with subsequent Texas State Habeas appeals, must be from where the confusion is coming. The Texas Court of Criminal Appeals will consider new evidence in a subsequent appeal, but only after the condemned proves that this new evidence wasn’t available when the first Texas State habeas appeal was filed.
Here is the appeal submitted by Foster’s lawyer to the Court of Criminal Appeals. It sets out the reasons that Foster is innocent of capital murder. It also explains how the CCA should consider the new evidence. The CCA decided 5-3, based on the 1995 Act, that it was not obligated to consider the new evidence.