EDITORIAL: Paper Says Texas Man Sentenced Under "Law of Parties" Should Not Be Executed

The Fort Worth Star-Telegram is urging the Texas Board of Pardons and Paroles and Texas Governor Rick Perry to spare the life of Kenneth Foster (pictured), whose execution is scheduled for August 30. Foster was sentenced to death under the Texas Law of Parties that permits a person involved in a crime to be held accountable for the actions committed by someone else. In this case, Texas maintains that Foster deserves the death penalty because he should have anticipated that a passenger in his vehicle, Mauriceo Brown, would exit the car with a weapon and fatally shoot Michael LaHood. The paper noted that Foster's case is a prime example for why Texas lawmakers need to revisit and revise the state's current Law of Parties, observing:


Kenneth Foster Jr. is no model citizen. But he doesn't deserve to die.

If the state's "law of parties" statute does not permit the Texas Board of Pardons and Paroles and Gov. Rick Perry to realize that, the law is subject to Charles Dickens' characterization in Oliver Twist:

"'If the law supposes that,' said Mr. Bumble, ... 'the law is a ass -- a idiot.'"


Foster certainly is not more guilty than Mauriceo Brown, who fatally shot Michael LaHood in the early hours of Aug. 15, 1996, in San Antonio. Nor is he more guilty than DeWayne Dillard and Julius Steen, who were in the car smoking marijuana with Brown while Foster drove.

Foster did not get out of the car when Steen and Brown robbed a Hispanic woman at gunpoint and later robbed a man and two women in a parking lot. And Foster did not leave the car when Brown jumped out and shot LaHood after a brief verbal exchange.

Brown was executed July 19, 2006. Neither Steen nor Dillard were prosecuted for this case, although both are serving long prison sentences. Foster's trial lawyers never even interviewed them. Both were facing charges in other capital cases, and their attorneys nixed making them available to Foster's defense team, according to Amnesty International.

Texas law states that "if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it." Defendants can be held responsible for "failing to anticipate" that the conspiracy -- in Foster's case, the robberies -- would lead to another felony.

The "law of parties" is clearly about conspiracy and organized crime. Foster's case shows little organization, much less a conspiracy.

Four states other than Texas have "law of parties" statutes. But Texas is the only state that applies it in capital cases, making it the only place in the country where people can face the death penalty even though they didn't actually kill the victim.

The long-term solution is for the Texas Legislature to revisit the state's "law of parties" statutes.

That doesn't help Foster, who is scheduled for execution by lethal injection Aug. 30.

5 out of seven members of the Board of Pardons and Paroles must recommend clemency before Perry will consider it. We urge them to make that recommendation to the governor.

Foster might deserve to spend the rest of his natural life sitting behind bars. But to do that, he has to be alive.

(Fort Worth Star-Telegram, August 19, 2007). See Editorials, Upcoming Executions, and Arbitrariness.

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Legal Experts Fear New Federal Regulations Could Result in More Arbitrariness and Wrongful Convictions

The Justice Department is finalizing regulations that could give Attorney General Alberto R. Gonzales (pictured) the ability to shorten the time that death row inmates have to appeal their case in federal court, a change that many critics believe will make capital punishment more unfair and inaccurate. Under the 2006 reauthorization of the Patriot Act, the Attorney General was given the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases, an authority that had been held by federal judges. If a state requests it and the Attorney General agrees, the new rules drafted by the Justice Department would allow prosecutors to "fast track" procedures that shorten the amount of time those on death row have to file a federal appeal after a conviction in a state court. The change would shorten the federal appeal window from one year to six months and would impose strict guidelines on federal judges for deciding such inmates' petitions. Elisabeth Semel, director of the Death Penalty Clinic at the UC Berkeley law school, said, "It is another means by which people are determined to shut the federal courts down to meaningful review of death penalty cases. The inevitable result of speeding them up is to miss profound legal errors that are made. Lawyers will not see them. Courts will not address them."

Semel's concerns have been echoed by others who fear the regulation change is out of sync with growing national concerns about the death penalty, including ongoing problems with inadequate representation, wrongful convictions, and arbitrariness. For example, the proposed rules require that states establish a "mechanism" for supplying defense attorneys to those on death row in order to qualify for the expedited procedures, but the rules do not provide oversight to ensure that the appointed lawyers are competent or adequately funded. "If you are going to impose the kind of incredibly stringent deadlines that this statute imposes . . . you need to ensure people get adequate representation throughout the state process. This is the opportunity that the Department of Justice has missed," said Robert Litt, a former Justice Department official representing the American Bar Assn. in the rule-making dispute. He added, "Without a set of standards to guide the attorney general, there is a tremendous potential for arbitrariness here, and to put a thumb on the scales on the side of the states." Lawrence Fox, a Philadelphia lawyer who teaches legal ethics at the University of Pennsylvania Law School, added, "It is almost a cruel joke for Congress to have said, 'What we would like to do is improve the way states handle these' . . . and then put it in the hands of, all people, the attorney general. It really is quite extraordinary. He is the chief prosecutor of the United States. He couldn't possibly be unbiased." The Judicial Conference of the U.S., the policy-making arm of the federal courts, also sees problems with the proposed changes. In a letter to the Justice Department, the group noted that states could qualify for "fast track" procedures even if they do not provide lawyer services "sufficient to enable federal court litigation to proceed fairly within the expedited time period."

Justice Department officials are seeking comment on the rules until September 23, after which they will be finalized "as quickly as circumstances allow," according to spokesman Erik Ablin. About 3,350 people are on death row in the U.S. It is unclear how many of these cases would be affected by the proposed rule change because each state would have to apply to participate in the program.

(Los Angeles Times, August 14, 2007). See Arbitrariness, Innocence, and Representation.

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Upcoming Execution Raises Questions of Whether Texas' Law Goes Too Far

On August 30, Texas has scheduled the execution of Kenneth Foster Jr. (pictured), despite the fact that all parties agree that Foster did not personally kill anyone. Foster was sentenced to death under the Texas Law of Parties that permits a person involved in a crime to be held accountable for the actions committed by someone else. In this case, Texas maintains that Foster deserves the death penalty because he "should have anticipated" that a passenger in his vehicle would exit the car with a weapon and kill someone. "[Foster] was a victim of a statute that was never intended by its authors to be used this way," said Foster's defense attorney, Keith Hampton. "I talked to the authors, and they intended [the statute] to be used in conspiracy cases."

Foster was just 19-years-old when Mauriceo Brown, a passenger in the car Foster was driving, shot Michael LaHood in San Antonio more than a decade ago. New testimony shows that Foster did not play a major role in the crime. Though Foster, Brown, Julius Steen, and Dewayne Dillard, were all traveling together that night and had committed two armed robberies prior to LaHood's murder, Steen and Dillard have stated that Foster could not have anticipated the crime. Brown, who was executed for the murder in 2006, also said that Foster did not know he was planning to kill LaHood. The men all maintain that Foster, who had borrowed the car from his grandfather, repeatedly pleaded with the group to go home before they encountered LaHood. He also tried to drive away when he heard the gunshots, but Steen and Dillard made him stop and wait for Brown. Steen received a 35-year-to-life sentence for the crime, and Dillard was given a life sentence.

During Foster's trial, his court-appointed defense attorney failed to bring up key points that might have vindicated his client and failed to pursue important testimony in the case. The same attorney also filed a 20-page appellate brief on behalf of Foster, which is unusually short in length for a death penalty case. According to court documents, at least one of the jurors from Foster's original trial has said in an affidavit that he would have given a different verdict if he had known of Foster's lack of foreknowledge of the shooting.

Federal District Judge Royal Furgeson of San Antonio overturned Foster's death sentence in 2005, saying, "There was no evidence before Foster's sentencing jury which would have supported a finding that Foster either actually killed LaHood or that Foster intended to kill LaHood or another person. Therein lays the fundamental constitutional defect in Foster's sentence . . . . Therefore, Foster's death sentence is not supported by the necessary factual finding mandated [by the U.S. Supreme Court] and, for that reason, cannot withstand Eighth Amendment scrutiny." However, the U.S. Court of Appeals for the 5th Circuit overturned that decision.
(Austin American-Statesman, July 28, 2007, and Fort Worth Star-Telegram, July 29, 2007). See Arbitrariness and Upcoming Executions.

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NEW VOICES: Former Alabama Prosecutor Questions Value of Capital Punishment

Billy Hill spent seven years as a district attorney in Shelby, Coosa, and Clay counties in Alabama, and has reconsidered his stance on capital punishment.  Mr. Hill says that he would welcome a moratorium on executions in Alabama while a study commission examines the state's death penalty to evaluate whether it is "a wise and humane use of our resources." Wrongful convictions, the arbitrary nature of capital punishment, poor representation, and the long-term suffering of victims' family members are among Hill's main concerns about current death penalty laws. He believes that life without parole is a better alternative for violent offenders.  Hill now works as a Shelby County public defender.

In his criticisms of Alabama's death penalty, Hill notes that two innocent men have already been freed from the state's death row and that many others continue to await their execution without the benefit of "top-flight representation." With regard to the arbitrary nature of the states' capital punishment statute, Hill observes, "Do you realize that if two people are arguing on a street corner and one of them pulls a gun and kills the other one, that is simple murder? But, take the same scenario and put one of them in a car, and it becomes a capital case. . . . [I]n 30 years of observing violent offenders, I find 3 factors present in almost all of them: some kind of childhood abuse, either physical or sexual; some type of chemical dependence, either alcohol or drugs; and neurological damage." Hill also believes that the death penalty fails to serve the needs of victims' family members because execution dates are often set and then canceled several times during repeated appeals. "It just never goes away for the victim's family," said Hill.

Noting that the U.S. is one of the few industrialized nation in the world to use the death penalty, Hill said that he believes that life without parole is the more appropriate sentence for violent offenders. "A lot of people do not realize that in Alabama life without parole means you are not leaving prison except with your toes turned up," he said. If the state insists on keeping capital punishment, Hill observes that lawmakers should be prepared to pay to high costs associated with creating a system that is more fair and accurate.

(The Birmingham News, July 30, 2007). See New Voices, Innocence, Victims, Costs, and Life Without Parole.

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NEW VOICES: Federal Judge Calls the Death Penalty Arbitrary, Biased and Fundamentally Flawed

Judge Boyce F. Martin, Jr. (pictured) of the U.S. Court of Appeals for the 6th Circuit called the death penalty "arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair." Judge Martin dissented in the case of Getsy v. Mitchell and said it made no sense that Jason Getsy received a death sentence for his role in a murder-for-hire conspiracy, while the other two triggermen and the mastermind of the crime, all escaped a death sentence. He wrote:

In Jason Getsy’s case, sadly, we need not consider hypotheticals, such as the better-paid
lawyer who would likely have done a better job, or the brutal murder which, for whatever reasons, could not be coupled with any of a state’s statutory aggravating circumstances. For in Getsy’s case the hypothetical is made real. The nineteen-year-old Getsy was sentenced to death for being one of the trigger men in a murder-for-hire conspiracy. His two compatriots, Richard McNulty and Ben Hudach, did not receive the death penalty because both were offered and accepted plea bargains. Thus there is some logic, perhaps, to why McNulty and Hudach received lesser sentences. But there is no logic to why John Santine, the mastermind of the conspiracy, who paid Getsy, McNulty, and Hudach to do his dirty work, and who took great steps to make sure they completed the job, also did not receive a death sentence.
. . .
Jason Getsy and John Santine are not hypothetical players in a criminal law final exam.
They are real people who committed real crimes, indeed, the same crimes. That Getsy will be put to death while Santine will be spared, and that the law (at least according to the majority) actually sanctions this result, makes it virtually impossible for me to answer in the affirmative what Justice Blackmun viewed as the fundamental question in Callins v. Collins— namely, does our system of capital punishment "accurately and consistently determine" which defendants "deserve" to die and which do not?
(Getsy v. Mitchell, No. 03-3200, U.S. Court of Appeals for the 6th Cir. (July 25, 2007) (Martin, J., dissenting)). See New Voices and Arbitrariness.

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Government Ordered to Pay Former Death Row Inmate and Others $102 Million

A federal judge ordered the U.S. government to pay a record $102 million for the Federal Bureau of Investigation's role in the wrongful murder convictions of four men in 1968, including one man who was sentenced to death. U.S. District Judge Nancy Gertner said the FBI's conduct was "shocking" and characterized the government's explanation for the events leading to the wrongful convictions of Louis Greco, Henry Tameleo, Peter Limone and Joseph Salvati as "absurd." She wrote, "Now is the time to say and say without equivocation: this 'cost' -- to the liberty of four men, to our system of justice -- is not remotely acceptable. This case is about intentional misconduct, subornation of perjury, conspiracy, the framing of innocent men. . . . The FBI's conduct was intentional, it was outrageous, it caused plaintiffs immeasurable and unbearable pain and the FBI must be held accountable."

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News Series Highlights Problem of Lost and Destroyed Evidence, Wrongful Convictions

In continuing a series that DPIC had highlighted earlier, the Denver Post has featured more than a dozen news articles and a series of online videos, providing an in-depth look at the handling of crucial biological evidence gathered during criminal investigations. "Trashing the Truth: The Hidden Story of Lost Evidence" examined the nationwide problems with evidence storage, the destruction of evidence, and the relationship between missing evidence and wrongful convictions. It also addressed how this issue impacts victims and victims' family members who are waiting for answers in unsolved crimes.

In one article, the Post told the story of Floyd Brown, who has been in a North Carolina mental institution for 14 years without a trial. Brown, who is mentally retarded, is accused of murdering 80-year-old Katherine Lynch, but he maintains that he did not commit the crime and did not give the confession prosecutors have pointed to as evidence of his guilt. In the years since Brown was institutionalized, the wooden stick sheriff's deputies say was used to kill Lynch has been lost or destroyed. Earlier tests on the weapon concluded that they did not match Brown, and his defense attorneys say that more sophisticated DNA testing of the stick could have proven their client's innocence and possibly revealed the identity of the actual assailant.

In another article, the paper details the exoneration of Johnny Briscoe, who served 24 years in prison for rape. For nearly a deacde, defense attorneys and others hoping to prove Briscoe's innocence tried to locate three cigarette butts collected from the crime scene that were frozen in a St. Louis County Crime Lab freezer for the purpose of future DNA testing. During that time, the district attorney and lab technicians either refused to look for the evidence or said they could not find it after a search of the facility. The three cigarette butts were located only after a power failure shut down the lab and staff were forced to conduct an inventory of all of the evidence in the freezer. New DNA analysis of the evidence revealed that Briscoe was innocent and that another man had committed the crime. That man, Larry Smith, had been serving time in the same prison as Briscoe for the rape of a woman in the same apartment complex as the victim assaulted in Briscoe's case.

The series noted:
The Denver Post has found 141 prisoners nationwide who profess their innocence but in whose cases physical evidence has been lost, mishandled or destroyed.
. . .
Their cases raise questions about a justice system that fails to regulate DNA evidence and leaves to the whims of clerks and law-enforcement officials the fates of inmates trying to prove their innocence. Their stories also call into question whether the U.S. criminal justice system has strayed from one of its basic principles: that it's far worse to convict an innocent person that to let a guilty person go free.

It's one thing to be wrongly convicted and doing another man's time. But it's quite another to have your freedom hinge on tiny traces from a stranger's body, only to learn those samples have been lost or destroyed.

(Denver Post, July 22-25, 2007). View the "Trashing the Truth" Videos Online. See Studies and Innocence.


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NEW RESOURCES: Destroyed DNA Evidence Blocks Possible Exonerations

A recent four-part series in the Denver Post about evidence in criminal cases detailed how police departments across the U.S. store and dispose of crucial biological evidence. The Post examined 10 states in which authorities destroyed biological evidence in nearly 6,000 rape and murder cases during the past decade. The investigation also revealed that over the past 30 years, destruction of DNA evidence in 28 states has undermined efforts by at least 141 prisoners to prove their innocence.

Of the 30 police departments nationwide surveyed by the paper, 70% said that they faced "highly critical" evidence storage problems. Even so, the Post discovered that few jurisdictions have prioritized the creation of adequate systems to track and store evidence in criminal cases. The problem has led to great frustrations among attorneys and clerks who are charged with protecting evidence. In North Carolina, Superior Court clerk Al Jean Bogle was shocked to discover that biological evidence that could have led to the exoneration of inmate Willie Grimes had been destroyed in an effort to make room for more evidence. Grimes, a 60-year-old man who is recovering from cancer, was convicted nearly two decades ago based on expert hair analysis testimony that has now been debunked by many as junk science.  Though new DNA technology could confirm or refute the expert's conclusions, the hairs, the victim's underwear, and a rape evidence kit from the case were all destroyed in 1990 by Bogle's predecessor. "I've been clerk for almost eight years. We've got four truck tires in the evidence room. We've got bales of marijuana that have been in there since I became clerk. And Mr. Grimes' evidence, evidence in a life case, is gone. I hate it," Bogle said. In Florida, similar storage space shortages have led Union County officials to pile evidence in bathrooms that are still in use. In New Orleans, defense attorney Ava de Montagne was forced to get a court order to search the city courthouse's attic storage unit for rape kits she hoped would exonerate some of her clients. After de Montagne finally located the kits and placed them in the courthouse's basement vault for safe keeping, Hurricane Katrina flooded the city and destroyed the crucial DNA evidence.

Though the paper chronicled a number of similar stories detailing the mismanagement of biological evidence, the Post also offered praise for departments who are working to appropriately handle the evidence crisis. It noted that the Dallas Police Department has been preserving DNA evidence specimens since the 1970s, and the practice has led the department to achieve success in tracking down culprits in decades-old crimes. The paper also noted that the Charlotte-Mecklenburg Police Department in North Carolina has greatly improved its evidence storage practices after a string of wrongful conviction cases in the state. The department now freezes biological specimens such as clothing cuttings and rape kits, and it takes the initiative to notify prisoners when it finds DNA evidence for possible appeals.

Former FBI Director William Sessions noted the importance of properly storing and tracking biological evidence, stating, "The point is that DNA needs to be saved. Justice rides on it."

(Denver Post, July 23, 2007). See InnocenceRead the article. Read the series.

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ARBITRARINESS: Woman Faces Federal Death Sentence While Triggerman Receives 17 Years

Donna Moonda (pictured) is facing the federal death penalty in Ohio for hiring a man to kill her husband.  The person who actually shot and killed the victim, Damian Bradford, received a sentence of only 17.5 years in exchange for his testimony against Moonda.  Moonda and Bradford were convicted in separate trials of orchestrating and carrying out the plot to kill Dr. Gulam Moonda in an alledged effort to share his estate. The two defendants met in a drug rehabilitation center. Donna Moonda is now in the sentencing phase of her capital trial, and could receive either the death penalty or life in prison without parole.  Moonda's defense attorneys maintain that Bradford is a thug, womanizer, and a drug dealer, and the state acknowledges that he was the person who killed Dr. Moonda. During the sentencing phase of Moonda's trial, jurors are expected to hear from prison experts who will describe the harsh conditions endured by those serving life in prison without parole.
(Tribune-Chronicle, July 16, 2007).  Update: Ms. Mooda received a life sentence from the jury on July 18, 2007.  See Women, Federal Death Penalty, and Arbitrariness.


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Report Fails to Erase Doubt that Texas Executed an Innocent Man

Bexar County District Attorney Susan Reed recently issued a report finding that Ruben Cantu (pictured) was guilty of the crime for which Texas executed him in 1993.  However, critics have noted that Reed was formerly a judge who handled Cantu's appeal and set his execution date, raising a conflict of interest in conducing an investigation of his guilt.  Moreover, many who are familiar with the case doubt Reed's conclusions and say the report's findings do not add up. Critics of Reed's report say it overstates evidence of Cantu's guilt and glosses over troubling aspects of the case.

One claim that has raised doubts about the report's accuracy is a finding that one of Cantu's defense attorneys solicited and obtained a plea offer from prosecutors, but that the presiding judge in the case rejected the agreement. That judge, Roy Barrera, Jr., has maintained that he has no memory of the plea deal, adding, "I don't think Ruben ever considered a plea." Andrew Carruthers, Cantu's lead defense attorney during his trial, said that Cantu refused to plead guilty. He noted that if Barrera had rejected a plea deal, the defense would have ensured it appeared somewhere in the record, which it did not.

The report's description of Cantu's jailhouse confession to another inmate has also raised questions. The report claims that while he was awaiting his murder trial, Cantu confessed to fellow inmate Tom L. Cooresmans, who had at least eight prior felony convictions and was potentially facing a mandatory minimum jail term of 25 years in prison. The report states that the snitch was not offered anything for his testimony against Cantu and that he passed a lie detector test about his story. The report does not mention Cooresmans' "habitual offender" status or the fact that prosecutors lowered his bond and helped him to get out of jail after he told his story about Cantu's alledged confession. According to Barry Scheck, co-founder of the New-York based Innocence Project, Cooresmans' motive to lie "is just so obvious."

Though he praised Reed's review of the case, Sam Millsap - the former district attorney whose office prosecuted Cantu and secured his death sentence - said he remains unconvinced of Cantu's guilt. "I don't think we'll ever know. After reading the report, I'm even more firm in my belief that the death penalty should be abolished," Millsap said. Millsap was not consulted by Reed in her investigation of Cantu's guilt.

(San Antonio Express-News, July 8, 2007). Read D.A. Susan Reed's Report.  See Innocence and Executed Despite Doubts About Guilt.

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