The following is a breakdown of the Law of Parties, showing the arbitrary nature in which it is being used, and how it was improperly applied against Kenneth Foster. It is being distributed as part of a press packet by the Save Kenneth Foster campaign.
LEGAL ANALYSIS OF THE LAW OF PARTIES
THE STATUATORY BASIS OF THE LAW OF PARTIES
Section 7.02 of the Texas Penal Code outlines the following:
Article 37.071(b)(2) of the Code of Criminal Procedures permits the infliction of the death penalty only if the jury believes beyond a reasonable doubt that the defendant “intended to kill the deceased or another or anticipated that a human life would be taken.”
PARTIES AND THE
The US Supreme Court held that 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. (Edmund v. Florida 458 US 782, 1982)
Five years after the Edmund decision the Supreme Court created an exception to this general rule for those guilty of a murder that occurs in the commission of a felony who do not kill or intend to kill, but who have major personal involvement in the felony and display a reckless indifference to human life. (Tison v. Arizona, 481 US 137, 1987)
THE STANDARD NECESSARY TO DEMONSTRATE RECKLESS INDIFFERENCE TO HUMAN LIFE
The Delaware Superior Court observed:
THE LAW OF PARTIES IN THE CASE OF KENNETH FOSTER, JR
The State of
A) It permits the imposition of the death penalty for a mental status no greater than negligence
B) The use of the substantive penal offense of conspiracy fails to meet the requirements of death eligibility under Edmund and Tison
C) It violates the Due Process Clause of the 14th Amendment by permitting one to be convicted under a conspiracy statute never alleged to have been proved.
A and B explained:
The court’s instructions employing Section 7.02 permits the jury to return a capital murder verdict of guilty if it merely believes that one acted only in furtherance of a non-capital offense, without any requirement that there be an intent to kill. This transforms felony murder to a capital offense, contrary to
While the State charges a person with capital murder the jury was instructed to convict if it believed that the defendant was guilty of the distinct but uncharged criminal offense of conspiracy. Permitting the state to charge one crime but instruct the jury on another violates the US Constitution in two important respects.
1) The substitution of a new offense at the jury instruction stage as a mechanism for conviction permits the state to prosecute a person without giving the accused fair notice of the nature and cause of the accusation against him.
2) It precludes the ability of the defendant to prepare to meet the State’s evidence.
Furthermore, mere status as a party is not by itself a crime, but status as a conspirator is prohibited as an offense under Section 15.02 of the Texas Penal Code. Thus, when the State accuses a person of an offense, then proves complicity as a party to that offense, no new offense has been introduced. However, when the state accuses a person of an offense, then proceeds on the theory that the accused is guilty of conspiracy, then the State is seeking conviction for the crime of conspiracy when it has wholly failed to allege that crime against the defendant. For these reasons, the judgment in this case is contrary to law clearly established by the US Supreme Court and the 6th Amendment, and involved an unreasonable application of such law to the facts of the case.
While conspiracy offends the 8th Amendment in the three ways pointed out in A, B, and C, two major violations exist:
1) There was no major requirement that the jury find that Kenneth Foster, Jr. was a major participant or displayed a disregard for human life so reckless that it can be equated with any intent to kill. On the contrary, the jury was specifically told that it could render one death-eligible even if it found that he had no such intent. By employing the conspiracy liability statute, the State is able to make a person 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. Negligence is the least culpable of mental state in criminal law. In fact, authorizing a jury to sentence to death a person found guilty of merely failing to anticipate his accomplice’s actions is not even a homicide under State law.
2) In a hypothetically worse care scenario the crime at issue in Foster’s case would be a conspirator’s failure to anticipate his confederate’s decision to kill the person they had planned to merely rob. Such a crime is punishable under the laws of
Even in such a hypothetical situation such a defendant is guilty of conspiracy under 15.02 of the Texas Penal Code, a non-capital crime. Notwithstanding State law, the failure to anticipate an accomplice’s decision to intentionally kill a person, even were it deemed a form of homicide, violates the 8th Amendment because the death penalty is disproportionate to such culpability.
The Texas death penalty is supposed to be reserved as a sanction for the most heinous murders. However,