Scheduled Execution: Kenneth Foster, Jr.

Since the time Judge Roy Bean, the Only Law West of the Pecos, gained the reputation as the hanging judge, Texas has led the world in capital punishment executions. Will Texans ever become civilized?

Texas has become the "capital" in "capital punishment," and it is time for us to put an end to the madness- so writes Star-Telegram columnist Bob Ray Sanders (“An appointment with death despite the evidence”, July 29, 2007). “Another trip to Death Row… Another man scheduled to die on the gurney in Texas' infamous killing chamber… Another human being who does not deserve this tragic fate… And another case that speaks to the absurdity of how capital punishment is applied in general throughout this country, but particularly in the Lone Star State.”

Texas has executed 398 people since capital punishment was reinstated in 1974.

The straw that broke Sander’s back? The case of Kenneth Foster, Jr., scheduled to die on August 30 month for a 1996 murder in San Antonio, “is further proof of how cruel, capricious, unjust and utterly insane our death penalty laws have become,” the columnist writes.

THE CASE
On Aug. 14, 1996, Foster -- who was 19 at the time -- was driving around with two guys he recently had met, Dewayne Dillard and Julius Steen. They were in a car that had been rented by Foster's grandfather, the man who basically had raised him since he was in the fourth grade because "my mother and father ran the streets," he said.

According to Steen's testimony, they were "just goofing off, more or less, and smoking some weed" when they decided to pick up a fourth person, Mauriceo Brown, who rode with them into the night.

Testimony showed that at some point, Brown announced that because they had a gun, they ought to "jack" someone.

With Foster as the driver, Steen and Brown first got out of the car and robbed a Hispanic woman at gunpoint and later robbed a man and two women in a parking lot.

On their way home, they came off the freeway and ended up in a residential neighborhood and saw, according to court documents, "a scantily-clad woman, Mary Patrick, who approached them and demanded to know why they were following her."

As it turned out, Patrick had been following her friend Michael LaHood to his home, and the car driven by Foster was right behind their two cars until they came to a dead end and turned around.

After seeing Patrick standing at the edge of the driveway, they assumed there was a party going on. They stopped and chatted with her for a few seconds, when she started cursing Steen and accusing the group of following her.

Foster put his foot on the gas and prepared to leave, he said, knowing he needed to get the car back to his grandfather. But Brown jumped out of the car, he said, went up the steep driveway and started talking to LaHood, who was more than 80 feet away from the car.

He said he heard a "pop," and when Brown got back to the car, "We're asking -- everybody's asking -- what went down? What happened?"
Brown had shot LaHood.

Shortly afterward, the four men would be arrested and later charged with capital murder.

Foster was convicted along with Brown under the Texas "law of parties," even though he never participated in, intended for or anticipated a murder.

"[Foster] was a victim of a statute that was never intended by its authors to be used this way," said Austin attorney Keith S. Hampton, who recently filed a second application for a writ of habeas corpus with the district court in San Antonio and an application for commutation of sentence with the Board of Pardons and Paroles.

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."

The 5th U.S. Circuit Court of Appeals overturned that decision. Last spring, the U.S. Supreme Court, which was considering three other Texas death penalty cases at the time, did not take Foster's appeal.

"I can't surrender my humanity," Foster said. "Yeah, I made a mistake; let me correct it. I shouldn't have to abandon my humanity, my dignity." (“I shouldn’t have to abandon my humanity, my dignity”, Star-Telegram, August 1, 2007)

Sanders has issued to call out to the world to put an end to the madness:

JOIN THE FIGHT
Contact the governor's office or the Texas Board of Pardons and Paroles to object to the execution of Kenneth Foster, Jr.

Gov. Rick Perry
Mail: State Capitol, P.O. Box 12428, Austin, TX 78711-2428
Telephone: 512-463-2000
Fax: 512-463-1849
E-mail: Use the form at www.governor.state.tx.us/contact
Texas Board of Pardons and Paroles
Mail: P.O. Box 13401, Capitol Station, Austin, TX 78711