A San Antonio jury sentenced Kenneth Foster Jr. to death in 1997 for driving his friends from the scene of a deadly shooting after what prosecutors said was a botched robbery.
The 20-year-old was convicted under the conspiracy provision of Texas' "law of parties," a legal premise that alleged that Foster was just as responsible for Michael LaHood's death as the man who shot him.
Under the controversial law, Foster was accused of being a co-conspirator in a robbery plot that he should have known was likely to result in LaHood's death.
Bexar County prosecutors claimed that LaHood was the final target in a string of armed robberies that Foster and his three cohorts set out to commit the evening of Aug. 14, 1996. LaHood's girlfriend, Mary Patrick, testified that the foursome followed them in their car to LaHood's home and engaged her in a brief conversation before Foster's co-defendant, Mauriceo Brown, ambushed LaHood in his driveway.
Patrick testified that Brown shot LaHood, the son of a prominent San Antonio attorney, in the head from less than six inches away when he refused to give up his wallet. During the brief altercation, Foster kept the car in gear, a fact that prosecutors said underscored their belief that Foster knew a robbery was in progress.
During the penalty phase, jurors found that two aggravating factors applied to Foster: that he should have been able to anticipate LaHood's death, and that he was a future danger to society. They also found that none of the evidence presented by his lawyers in the penalty phase mitigated his culpability, rendering him eligible for the death penalty.
After the penalty phase, one of the 12 panelists remarked in the press that Foster, a churchgoing college student who was working toward a degree in sociology, had "all the chances in the world" to steer clear of the violent path he went down the night of Aug. 14, 1996.
But Foster, now 30, claims the jury was never shown that he was unable to anticipate that his co-defendant, Mauriceo Brown, was going to kill LaHood, because the two had never agreed to rob him.
Also, post-conviction attorneys trying to win Foster's freedom from a death sentence claim the jury might have voted differently had they heard about his troubled upbringing at the hands of two drug addicts who spent most of their son's childhood in custody.
The Texas Court of Criminal Appeals has refused to grant Foster a hearing to consider the merit of his claims, leaving clemency from Gov. Rick Perry his only chance for a reprieve before his Aug. 30 execution date.
Growing up in a drug house
Foster was born Oct. 22, 1976, to a couple who had met one year before at a drug treatment center in Austin, Texas.
Drug abuse remained a focal point of the Fosters' daily existence after their son's birth, according to relatives who spoke to Foster's lawyers for their application to commute his sentence.
Foster's mother, Patsy Pullin, routinely committed theft, burglary and prostitution to maintain her habit. His father, Kenneth Foster Sr., also resorted to crime to support his addiction, using his infant son's baby carriage to conceal stolen goods.
The Fosters' exploits landed them in and out of jail throughout their son's childhood. In between their jail stints, the young Foster frequently saw his parents using heroin, cocaine and crack. On at least one occasion, he watched his mother performing a sexual act on a man for money.
During this time, Kenneth's older half-brother, Chris Pullin, became his caregiver and also turned to theft to support the family. As the boys grew older, Pullin told Foster's lawyers, his mother came to expect the boys to pickpocket and steal "whatever cost the highest" — from briskets and hams to cartons of cigarettes. Pullin said his mother often sold their clothing for drug money, and the boys once sold their dog to help their mother when she was sick.
When his parents were not around, Foster and his brother witnessed violence and drug use in their home from a revolving cast of family friends and relatives, including a male prostitute uncle who sold drugs from the home.
Through his older brother and his friends, the young Foster was introduced to alcohol when he was 6. By the time he was 8, he was smoking marijuana. By age 11, he had been sexually abused by three older female cousins, according to relatives.
Kenneth Foster spent his summers visiting his father's relatives in San Antonio. His grandfather remembered that he would use this time to "retrain" his rambunctious grandson to behave in a "socially appropriate" manner, only to have to go through the same process the next visit.
When he was 8 years old, Foster permanently moved in with his grandparents. After a period of adjustment, his grandfather, Lawrence Foster, said his grandson grew into a cheerful, energetic child who excelled in school and got along well with others.
"He was a leader as a boy. Everyone tended to be in his arena," Lawrence Foster told CourtTVnews.com.
By his sophomore year of high school, however, Foster admits he became a follower in an effort to "be cool." His grades slipped, he dropped out of school sports and spent more time drinking and doing drugs.
Throughout his teen years, his mother's drug use continued up until her death from AIDS when Foster was 17. He continued to use drugs, which led to the start of his brushes with the law.
As a juvenile, Foster was placed on deferred adjudication twice, once in 1994 for drug possession and again in 1995 for selling a police officer a quarter pound of marijuana for $225.
With the birth of his daughter Dec. 31, 1995, Foster says he made an effort to turn his life around. After graduating from high school, he entered St. Philip's College in San Antonio to pursue studies in social work. There, he met two of the three men in the car with him the night LaHood was killed.
An altercation in a driveway
Outside of school, he and some friends started to build a recording label. On the afternoon of Aug. 14, 1996, Foster set out in a car his grandfather had rented for him so he could interview potential talent for his label.
Late in the afternoon, he picked up school friends Mauriceo Brown, Julius Steen and Dwayne Dillard, and the foursome cruised the streets of San Antonio, drinking and getting high.
When they became bored, Brown pointed out that he had a gun and suggested they search for victims to rob. From two robberies, during which Foster remained the driver, the group netted about $300.
Bexar County prosecutors alleged that the group had chosen Mary Patrick and Michael LaHood as their third robbery targets, but Foster claims the group encountered them purely by chance.
According to Foster, at about 2:30 a.m., they were driving home through a residential area of San Antonio when they passed Mary Patrick on the sidewalk outside of Michael LaHood's home. As Foster tells it, Patrick flagged down his car and demanded to know why they were following her.
In police statements by all four men after their arrest, they described a brief discussion with Patrick that ended with someone commenting about her appearance and her telling them to "take a picture, it would last longer."
As Patrick walked away from the car and up the driveway to where LaHood was standing, Brown left the car.
Foster says he was under the impression that Brown went after Patrick to flirt with her and was unaware that Brown had taken the gun with him.
Brown also testified at his and Foster's joint trial that his intention was to talk to Patrick, but that the confrontation escalated into gunfire after LaHood pulled a gun on him.
Brown and Foster were tried together, despite efforts from defense lawyers to sever the trials.
Steen, who was sitting in the front seat, testified during their trial that he began to doze off, but Foster woke him and urged him to look out for police.
By this time, Steen testified, they were following Patrick's car, for what he understood to be their final "jack" of the night.
Steen testified that, unlike with the night's previous incidents, there was no discussion of whether a robbery was actually going to occur. But, he said, "it was kind of like, I guess, understood what was probably fixing to go down."
The testimony turned out to be a crucial pillar in the prosecution's contention that the three men in the car knew a robbery was likely to occur.
Prosecutors also emphasized Foster's involvement in the robberies earlier in the evening and invited the jury to infer that the encounter in LaHood's driveway was an extension of the initial crime spree.
"The jury could reasonably believe that Brown and Foster planned this 'jack' while Steen slept," the three-judge panel from the Court of Criminal Appeals wrote in their decision upholding the death sentence. "Although there was conflicting testimony as to Brown's intent at the LaHood home, the jury was free to believe Steen, who said he 'had a pretty good idea' what was going to happen when Brown got out of the car."
Since then, Steen has come forward to clarify his trial testimony. In an affidavit provided to Foster's lawyers, Steen said it was only after Brown left the car and began talking to LaHood that he thought a robbery was likely.
"There was no agreement that I am aware of for Brown to commit a robbery at the LaHood residence. I do not believe that Foster and Brown ever agreed to commit a robbery," Steen wrote in his affidavit. "When Brown got back in the car, we were all shocked. Even Brown looked shocked. I don't think that Brown knew why he shot the man and was surprised that he did."
Dillard, who was not called as a witness in Foster and Brown's trial, eventually provided corroborating statements. Dillard also testified that earlier in the evening, before the group came upon Patrick's car, Foster had urged the group to stop committing the robberies.
Steen received a life sentence in exchange for his testimony and a guilty plea to aggravated robbery. Dillard is also serving a life sentence for murder in an unrelated case.
Brown was executed last July.
In applications to the district and federal courts, Foster's post-conviction attorney, Keith Hampton, argued that the newly discovered evidence from Steen and Dillard proved that Foster never agreed to rob LaHood and, therefore, could not have foreseen the tragic consequences of Brown's actions.
"He did not kill, intend to kill, contemplate or possess a state of mind that can be equated with the intent to kill, and if you don't have any those things, you're not supposed to be on death row," Hampton told CourtTVnews.com.
"The death penalty is supposed to be reserved for the worst of the worst, and in this case, we've got a guy who didn't kill anybody," said Hampton, who was part of the legal team who won a reversal for another Texas death row inmate, Scott Panetti, this year, who claimed he suffered from mental retardation.
Foster says he has attempted to turn his incarceration into a positive experience by taking on the role of reformer and activist.
He works with several anti-death-penalty groups to raise awareness about capital punishment legislation, in particular, the law of parties. He also founded an inmate group named DRIVE, or Death Row Inner-communalist Vanguard Engagement, an internal lobby for improvements on Texas' death row.
In June, his girlfriend married him by proxy in a ceremony that was performed in a radio station. As Foster listened to the radio, a family friend stood in for him at the station and read his vows to his wife, Tasha Narez-Foster, a Dutch rapper whose stage name is Jav'lin.
Narez-Foster says she was drawn to her groom-to-be after reading his story online. From there, she says, the relationship grew out of their shared passion for music and poetry and similar life experiences with rape and drug abuse.
"I've learned you don't choose who you fall in love with, and never in my wildest dreams did I imagine this would be my path," Narez-Foster told CourtTVnews.com. "I found home in his story, in his soul and in his heart, and I think that's what matters most."
As Foster sits on death row, he says he accepts responsibility for his part in LaHood's death, but doesn't think he deserves execution.
"I'm not saying that I'm not responsible for any wrongdoing there may have been. I have no problem accepting responsibility or punishment for something I did do. But I don't feel like I need to be punished for something that I did not do," Foster said in an interview from Texas' death row in Livingston a week before his scheduled execution.
"If I get to that gurney, they're going to be killing somebody that did not kill anybody," Foster said, "and I think that that's something that people really need to wake up to and see."