Kennth Foster Innocent of Murder; Still Going to Be Executed

Kenneth Foster is innocent of murder. Even the State acknoledges this fact, but in three weeks Foster will be executed for the murder of Michael LaHood. Consider this another installment of “Our Stupid Judicial System

LaHood’s actual killer, Mauriceo Brown, was executed in 2006. Foster, who was in a car about 100 yards from the crime when it was committed, was convicted under the controversial Texas state “law of parties”, under which the distinction between principal actor and accomplice in a crime is abolished. The law can impose the death penalty on anybody involved in a crime where a murder occurred. In Foster’s case he was driving a car with three passengers, one of whom, Brown, left the car, got into an altercation and shot LaHood dead. Texas is the only state that applies this statute in capital cases, making it the only place in the United States where a person can be factually innocent of murder and still face the death penalty.

Via Radley Balko.

UPDATE (James Joyner): As I noted in a comment to Michael Demmons‘ post on this topic this morning, most states have what’s known as the “felony murder rule,” wherein an accomplice to a crime is responsible for any direct action resulting from that crime. The only real difference here is capital punishment. Probably hundreds of people are rotting in jail for murders they didn’t themselves commit but that happened in crimes to which they were accomplices.

Sean-Paul Kelley was a close friend of the victim and still thinks executing Foster senseless and barbaric; then again, that’s his view of capital punishment in general. He does think, however, that “Kenneth deserves and is receiving punishment for his role in the tragedy that occurred that night.”

UPDATE (James Joyner): In the comments below, Steve mentions Enmund v. Florida, a 1982 Supreme Court case based on a remarkably similar set of facts.

Held: The imposition of the death penalty upon petitioner is inconsistent with the Eighth and Fourteenth Amendments. Pp. 788-801.

(a) The current judgments of legislatures, juries, and prosecutors weigh heavily on the side of rejecting capital punishment for the crime at issue. Only a small minority of States — eight — allow the death penalty to be imposed solely because the defendant somehow participated in the robbery in the course of which a murder was committed, but did not take or attempt or intend to take life, or intend that lethal force be employed. And the evidence is overwhelming that American juries have repudiated imposition of the death penalty for crimes such as petitioner’s, the statistics demonstrating that juries — and perhaps prosecutors — consider death a disproportionate penalty for those who fall within petitioner’s category. Pp. 788-796.

(b) While robbery is a serious crime deserving serious punishment, it is not a crime “so grievous an affront to humanity that the only adequate response may be the penalty of death.” Gregg v. Georgia, 428 U.S. 153, 184. The death penalty, which is “unique in its severity and irrevocability,” id. at 187, is an excessive penalty for the robber, who, as such, does not take human life. Here, the focus must be on petitioner’s culpability, not on those who committed the robbery and killings. He did not kill or intend to kill, and thus his culpability is different from that of the robbers who killed, and it is impermissible for the State [p783] to treat them alike and attribute to petitioner the culpability of those who killed the victims. Pp. 797-798.

One would think this would continue to control, even though the current Court may be somewhat more sympathetic to Texas’ law.

Update: (Steve Verdon): Beldar digs into this case and provides some pretty good background as to why Foster may indeed be guilty of capital murder for Michael LaHood. In particular there is the testimony of Mary Pactrick,

On the evening of 14 August 1996, Foster and three others — Mauriceo Brown, DeWayne Dillard, and Julius Steen — embarked on armed robberies around San Antonio, Texas, beginning with Brown’s announcing he had a gun and asking whether the others wanted to rob people: “I have the strap, do you all want to jack?” During the guilt/innocence phase of Foster’s trial, Steen testified he rode in the front seat, looking for potential victims, while Foster drove. Steen and Brown testified to robbing two different groups at gunpoint that night; the four men divided the stolen property equally. The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by Mary Patrick.

Patrick testified: she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster’s vehicle turn around and stop in front of Michael LaHood’s house; Patrick approached Foster’s vehicle to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster’s vehicle and approach her and Michael LaHood; Michael LaHood told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael LaHood’s face, demanding his keys, money, and wallet; Michael LaHood responded that Patrick had the keys; and Patrick heard a loud bang.

Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the night’s earlier robbery victims.

Exiting a car with a scarf over one’s face and a gun is not what I’d normally think of bringing along to ask a woman for her phone number. This would indicate that the intent was to rob Patrick, and that LaHood got in the way. In the link Beldar provides the court concluded that driving from robbery to robbery constituted major participation and that using a gun demonstrated reckless disregard for human life.

Still, there is one thing about this case that bother me. Foster and Brown were not the only occupants in the car. Two other men, Dillard and Steen were also in the car and it was Dillard’s gun that Brown used to shoot LaHood. Why wasn’t Dillard or Steen also tried for capital murder of Michael LaHood? Seems to me that they were major participants in the robberies, and that they too used/supplied the gun hence displaying a reckless disregard for human life. Steen apparently had a plea agreement, but what about Dillard? Granted he is serving a life sentence for committing another capital murder with Steen, but why not go for the death penalty in this case as well?

FILED UNDER: Law and the Courts, , , , , , ,
Steve Verdon
About Steve Verdon
Steve has a B.A. in Economics from the University of California, Los Angeles and attended graduate school at The George Washington University, leaving school shortly before staring work on his dissertation when his first child was born. He works in the energy industry and prior to that worked at the Bureau of Labor Statistics in the Division of Price Index and Number Research. He joined the staff at OTB in November 2004.

Comments

  1. yetanotherjohn says:

    I think your headline is a bit misleading. The law in Texas may be controversial, but you show no indication it is somehow illegal or unconstitutional. Thus, if he was legally convicted, he is not innocent of murder, only innocent of murder as you would define murder (or even as the other 49 states would define murder).

    If you attempt to rob me, I pull a gun and shoot a bystander, you are the one the law will judge guilty of the murder, even though you didn’t pull the trigger. If you drive the get away vehicle and never stepped foot in the bank, you will still be charged with bank robbery. Sorry, but this may not be the norm (I can’t speak to that), but it is not so far outside of the norm as to be unconstitutional.

  2. Michael says:

    Charles Manson never actually killed anybody either. I see nothing wrong with the intent of this law.

  3. Steve Verdon says:

    Actually such laws were found to violate the 8th and 14th Amendment by the Supreme Court unless they fit in a narrow exception. In Edmund v. Florida the Supreme Court ruled that an accomplice cannot be charged with murder unless they actually did the killing, attempted to kill, or were in on the planning of the murder. And exception was made five years later when the “accomplice” had a major involvement in the the felony and displayed reckless indifference to human life.

  4. Steve Verdon says:

    Manson clearly was involved in the planning and implementation of the crime. As such you are not making a valid comparison, Michael.

  5. yetanotherjohn says:

    Steve,

    I’m not familiar enough with the case to know if this fits or doesn’t fit within the exception. But again, as the law is currently constituted, the conviction is legal, therefore he is not “innocent” of murder. If the supreme court steps in with a stay of execution, review it and say this is unconstitutional, I bet Texas doesn’t execute him. If they don’t then the supreme court is not agreeing with you that he is innocent (or more accurately that the punishment does not fit the crime).

    There are good arguments for and against capital punishment. But saying that a man is innocent because you don’t like the legally passed law he was convicted under is not a way to make those arguments. Your claim that this is an example of “stupid judicial system” is defining stupid as someone who doesn’t agree with you.

  6. Michael says:

    Steve,
    I’m not familiar with this case, and the linked article gave little in the way of details, but I would imagine that this person was charged and convicted with being involved in the planning and implementation of the crime. If not, then I agree that sentencing him to the death penalty is extreme.

  7. Anon says:

    Note that in this case it seems that there was no clear plan to commit another robbery. There had been robberies earlier, but Foster was not involved in those.

    The legal reasoning seems to be that Foster should have known that another robbery might take place, and therefore should never have gotten in that car to drive.

  8. madmatt says:

    Well then they should be locking up cab and bus drivers, bartenders, friends and family etc…almost all of whom play some small part in such acts on occassion.

  9. Steve Verdon says:

    Michael,

    I’m not familiar with this case, and the linked article gave little in the way of details, but I would imagine that this person was charged and convicted with being involved in the planning and implementation of the crime. If not, then I agree that sentencing him to the death penalty is extreme.

    Of course, he was charged with these things, otherwise he wouldn’t have been convicted of them. The problem is that there seems to be quite a bit of reason to suspect that Foster did not,

    1. Kill LaHood, as Brown already was convicted for that and admitted to it.
    2. Foster did not attempt to kill LaHood as he was about 100 yards away inside a car, and nothing indicates that he had a gun or fired a gun.
    3. The killing appears to be completely unplanned by even Brown, hence claiming that Foster planned this is just ridiculous.

    As for the exceptions note that it is two parts. First that Foster would have to had major involvement in the murder, and that Foster was recklessly indifferent towards human life. The first seems doubtful, and the second as well if the murder is unplanned and Foster is 100 yards away in a car.

    YAJ,

    But again, as the law is currently constituted, the conviction is legal, therefore he is not “innocent” of murder.

    Circular reasoning, IMO. If an innocent man is convicted he is still innocent irrespective of the miscarriage of justice.

    There are good arguments for and against capital punishment. But saying that a man is innocent because you don’t like the legally passed law he was convicted under is not a way to make those arguments.

    I’m saying he is innocent because it looks very much like he is innocent of the crime he was convicted of. As Michael Demmon’s points out, if you picked up a hitchhiker and he killed somebody, jumped back in your car, and out of fear and stupidity you drove off, then you’d be guilty of murder too. Very similar to Foster’s situation, but I doublt you’d think of yourself as a murderer. If you want to say he is guilty of lesser crimes, fine, but murder? Seems like a stretch to me.

  10. yetanotherjohn says:

    Steve

    You need to distinguish between my definition of innocent as in did not do what was charged and your definition of innocent which is I don’t like the law he was found guilty of violating so you declare him innocent. You aren’t questioning the facts, you are questioning the law that the facts were applied to. Nothing circular on my reasoning. The law is valid until shown invalid. By your reasoning, all convicted people are innocent because the law might be seen invalid by someone.

    The law may be an ass, but it is the law.

  11. Anon says:

    It seems that I was wrong about Foster’s involvement in the earlier robberies. He was involved. So if during one of these robberies, someone had been killed, then the law of parties would have a somewhat firmer applicability, in my opinion.

    However, the actual incident during which the murder took place was related to the earlier robberies only tenuously, arguably. Thus, it is not clear that the law of parties should apply.

  12. Beldar says:

    Dr. Joyner: Thanks for the updates. The original post was badly misleading and dangerously uninformed.

  13. Michael says:

    if you picked up a hitchhiker and he killed somebody, jumped back in your car, and out of fear and stupidity you drove off, then you’d be guilty of murder too. Very similar to Foster’s situation,

    Uh, not quite like Foster’s situation. Foster was an accomplice in multiple robberies involving threatening somebody with a hand gun. In the last one, somebody was shot and killed. To me, and evidently to this particular jury as well, that makes Foster as guilty of murder as the one who pulled the trigger.

  14. Beldar says:

    The post from my blog that I’ve linked with a trackback above includes a detailed discussion of the facts, which bear very little resemblance to the way they’re depicted in the quote Mr. Verdon started this post with.

  15. Patterico says:

    Beldar 1, Verdon 0.

  16. Patterico says:

    “Beldar digs into this case . . .”

    You mean, he read it.

  17. Patterico says:

    Oh, and by the way?

    “As Michael Demmon’s points out, if you picked up a hitchhiker and he killed somebody, jumped back in your car, and out of fear and stupidity you drove off, then you’d be guilty of murder too.”

    No, you wouldn’t.

  18. just me says:

    Why wasn’t Dillard or Steen also tried for capital murder of Michael LaHood?

    I admit I hadn’t really been following this discussion until this morning.

    But there are a couple of reasons the other two guys may not have been charged with a capital crime.

    #1 They both may have opted to plead guilty for lesser sentences.

    #2 They also may have been offered plea deals that lowered their sentences, in exchange for testimony against the other two men.

    Also, it is possible the driver of the car, was offered a plea deal as well, but rejected it, however, if these guys were driving around for hours robbing people at gunpoint, that indicates a pretty active participation in the robberies, and I think does indicate at least some assumption of the risk that somebody was going to get killed and invoke a felony murder charge, if caught.

  19. just me says:

    “As Michael Demmon’s points out, if you picked up a hitchhiker and he killed somebody, jumped back in your car, and out of fear and stupidity you drove off, then you’d be guilty of murder too.”

    No, you wouldn’t.

    Not guilty of murder, and likely to be the prosecutors star witness.

  20. yetanotherjohn says:

    So for you scoring at home, we have gone from “he is innocent because he was just in the car” to “why aren’t we going for the death penalty for the other two in the car since the first guy doesn’t appear so innocent”.

    When I first started reading this, I thought that the death penalty opposition had found their holy grail of a death penalty being executed against someone who was clearly and unambiguously innocent (and the convicted saying they are innocent doesn’t fall into that category). Instead it was “I don’t think the law used was right, so Steve Veredon overrules the court and declares him innocent”. And it ends up with “after getting a small taste of the testimony the court got, he was guilty, so why aren’t we stringing up more people”.

    MSM move over, here comes the blogs.

  21. Patterico says:

    yetanotherjohn,

    It seems inconsistent at first glance, until you look for the underlying theme: Prosecutors Were Wrong.

    That part is consistent.

  22. harkin says:

    If you read the record you find that Foster not only drove the car that night as they went from robbery to robbery, all with a gun being used, you also learn that Foster personally targeted Patrick’s car as the potential source of the next victim (which led to LaHood’s death). You also learn that Foster participated in robberies a few nights previous and he personally fired a weapon at a car which refused to yield.

    By relying The Nation, this site does a disservice to its readers. If you don’t have enough conviction in your beliefs to present both sides, you automatically invalidate them

  23. Michael says:

    While we’re on the subject: [link]

    Under the rules now being prepared, if a state requested it and (AG) Gonzales agreed, prosecutors could use “fast track” procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.

  24. Steve Verdon says:

    “Beldar digs into this case . . .”

    You mean, he read it.

    Yes, I did google around for it, but didn’t find much with terms like ‘Foster’, ‘Edmunds v. Florida’, and so forth, or I found so much that it was impossible to tell where the right information was. And note that Beldar actually hosts the decision on his own site. So the idea that it was easily accessible is sort of misleading.

    It seems inconsistent at first glance, until you look for the underlying theme: Prosecutors Were Wrong.

    Yes, there was that. I have to admit I’ve become rather disenchanted with prosecutors lately. I’ve been reading a disturbing number of instances where prosecutors not only were wrong, but simply make shit up or credulously going along with people who make shit up.

    By relying The Nation, this site does a disservice to its readers. If you don’t have enough conviction in your beliefs to present both sides, you automatically invalidate them

    Actually, once I read Beldar’s account and the documents he hosts on his site, I did post the other side. I’m still a little curious as to why the other Dillard seemed to avoid being charged with capital murder. I suppose pleading to a lesser charge is possible.

  25. DRJ says:

    Steve Verdon,

    Kudos to you for linking Beldar’s critique of your post and for reconsidering your position.

  26. Patterico says:

    “I’ve been reading a disturbing number of instances where prosecutors not only were wrong, but simply make shit up or credulously going along with people who make shit up.”

    I’ve been reading a disturbing number of instances where critics of prosecutors not only were wrong, but simply made shit up or credulously went along with people who made shit up. Including journalists and bloggers.

  27. Steve Verdon says:

    I’ve been reading a disturbing number of instances where critics of prosecutors not only were wrong, but simply made shit up or credulously went along with people who made shit up. Including journalists and bloggers.

    Yes, but I don’t have the power to lock people up or ruin lives. And oddly enough, many prosecutors are virtually immune from any sort of negative fall out for their mis-deeds. So, I just can’t muster any sympathy.

  28. Patterico says:

    Your mindset that says you have no sympathy when journalists and bloggers make shit up about people with the kind of power prosecutors have?

    That’s the kind of mindset that leads to inaccurate posts like the one you wrote.

    It’s the same kind of mindset that causes journalists and bloggers to feel justified in making shit up about the president — who, after all, has much greater powers than prosecutors have.

    Not a good mindset for a blogger, in my view.

    I have a different mindset: that nobody should be victimized by people who make shit up. Even if they hold powerful positions. Even if other people in the same profession have done bad things.