Here is an example of a letter from a woman in Arlington Texas who is a supporter of the death penalty, but does not believe Kenneth Foster should be executed. She sent this email to every member of the Texas Legislature. You can also send an email. As of today at noon, 1,252 people have sent an email to each member of the Texas Legislature asking them to help persuade Governor Perry to stop the execution of Kenneth Foster, Jr.

I am extremely sorry for the suffering Michael LaHood’s family has been put through. The person responsible for his death, Mauriceo Brown has been put to death, which is appropriate. I am for the death penalty in some cases. Kenneth Foster did not pull the trigger, and he did not know that Brown was going to kill LaHood. He was just with the wrong people at the wrong time. Should there be consequences? YES!!! However, the death penalty is not an appropriate consequence for Foster’s crime of being with the wrong people. It is much too harsh for what he did, which was to wait in the car, not knowing what was going on. He is not responsible for Brown’s actions that caused LaHood’s murder. Please correct the wrong before it is too late. DO NOT KILL THIS INNOCENT PERSON!!!

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.

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.

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.