UPDATED AGAIN August 13th:
On August 7, the Texas Court of Criminal Appeals 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.
More than 1400 people have already written just since August 8.
Original Post starts below.
Thanks to CEDP-Austin for distributing this information. They are leading a statewide effort on Kenneth Foster’s behalf to stop his execution later this summer. Great job CEDP!
Kenneth Foster, Jr. was sentenced to death in May 1997 for driving a car from which Mauriceo Brown got out and shot Michael LaHood, Jr. Kenneth’s case is currently at a critical juncture, as the state of Texas has recently given him an execution date of August 30, 2007. Kenneth could be killed because of the gross misuse of the Law of Parties – simply for being, as the Austin Chronicle has put it, in “the wrong place at the wrong time.”
- By the Law of Parties, Kenneth Foster is factually innocent, although it was used by the prosecution to convict the other two men who were in the car. However, the law specifically states that an agreement must have been made between the defendants prior to the act, and most importantly, proved to have been made in a court of law, but no one had discussed robbing Michael LaHood that night.
- Mauriceo Brown got out of the car, allegedly attempted to commit a robbery, though he claimed that no robbery was intended, and that he wanted to talk to a woman who was with Michael LaHood. Complications arose and Mauriceo Brown shot Michael LaHood while Kenneth Foster and two others stayed in the car nearly 80 feet away with the windows up and the radio on.
- Mauriceo Brown admitted to the shooting, claiming self defense, but said that no one had any prior knowledge of the crimes he was about to commit.
- One of the other passengers in the car, Julius Steen, turned state’s evidence on the other three, but in a letter to Kenneth Foster, admits that his lawyer pressured him to lie in court so he wouldn’t get the death penalty.
- Kenneth Foster didn’t know that Mauriceo Brown had left the car with a gun, and when he heard the shot, he started to drive away, but the fourth man in the car, Dewayne Dillard, told him to stop.
- Even with the misapplication of the Law of Parties by the prosecution, the death penalty for someone who was not present at the time of the murder, did not kill, and did not anticipate the killing violates the Eighth Amendment, as established by Enmund v. Florida.
- The three other people in the car Kenneth Foster was driving have all admitted that he is innocent and had no foreknowledge of the crimes.