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?