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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