[Deathpenalty] death penalty news------TEXAS

[Rick Halperin]

Aug. 13



TEXAS:

URGENT ACTION APPEAL

8 August 2007----UA 205/07 Death penalty / Legal concern

USA (Texas) ---- Kenneth Eugene Foster (m), black, aged 30


Kenneth Foster is scheduled to be executed in Texas on 30 August. He was
sentenced to death in 1997 for the murder of Michael LaHood, a white man,
in 1996. Mauriceo Brown, the person who shot LaHood, was executed in 2006.
Kenneth Foster, in a car some 30 metres from the crime when it was
committed, was convicted under the "law of parties", the 1974 Texas law
under which the distinction between principal actor and accomplice in a
crime is abolished and each may be held equally culpable. Kenneth Foster
maintains that he did not know that Brown would either rob or kill Michael
LaHood. There is evidence not heard at trial that the murder was an
unplanned act committed by Mauriceo Brown, as the latter himself claimed.

On the evening of 14 August 1996, Mauriceo Brown, DeWayne Dillard, Julius
Steen and Kenneth Foster drove around San Antonio in Foster's
grandfather's rental car, with Foster driving. They committed two armed
robberies, with Steen and Brown robbing at gunpoint first a woman and then
a man and two women. Then, in the early hours of 15 August, they stopped
outside the house of Michael LaHood to which LaHood and a female
companion, Mary Patrick, were returning. According to the trial evidence,
Mary Patrick approached Foster's car and asked who they were. When she
realized she did not know the occupants, she walked back towards Michael
LaHood. Mauriceo Brown got out of the car, approached LaHood, demanded his
wallet, and shot him. Not long afterwards, Kenneth Foster and his three
companions were stopped by police and arrested. Kenneth Foster, who was
aged 19 at the time, gave police a statement in which he said that,
"Mauriceo jumped out of the car - We had tried to get Mauriceo to get in
the car and leave... We just wanted to leave - I heard a gunshot - I did
not know, at the time, that Mauriceo had a gun. Mauriceo trotted back to
the car - He was gasping... I asked him, what happened, what had he done.
He didn't reply".

Mauriceo Brown and Kenneth Foster were tried jointly for capital murder.
Brown admitted being the gunman but denied intent to kill. At the trial
Brown testified that there had been no discussion of robbing LaHood before
he got out of the car. Foster pleaded not guilty. Both were sentenced to
death. Mauriceo Brown was executed on 19 July 2006. Neither Julius Steen
nor DeWayne Dillard was prosecuted for the LaHood murder.

To convict Kenneth Foster of capital murder under the law of parties, the
prosecution had to prove that there was a conspiracy between him and Brown
to rob LaHood, and that Foster should have anticipated that murder might
have occurred during the robbery. The prosecution's key witness was Julius
Steen. Although Steen testified that he had not been sure of Brown's
intent when he left the car and that there had been no discussion in the
car about committing a robbery, he said that "it was kind of like, I guess
understood what was probably fixing to go down." Asked by the prosecutor
if he had understood that when Brown got out of the car, there was going
to be a robbery, Steen testified that "I would say I kind of thought it".
He also said that he was not sure of Foster's understanding in this
regard. Affirming the death sentence in 1999, the Texas Court of Criminal
Appeals observed that the case against Foster "rested largely on Steen's
testimony as an accomplice". The prosecution had pointed to the two
earlier robberies committed at gunpoint as a reason Foster should have
anticipated that a murder could have occurred.

Neither Julius Steen nor DeWayne Dillard (who did not testify at the
trial) was interviewed by Kenneth Foster's trial lawyers. This was because
each was facing charges in other cases, and their own lawyers refused to
allow them to be interviewed while those cases were still pending. Since
the trial, both have given statements. Dillard testified at a state appeal
that before the shooting, Kenneth Foster had told him that he wanted Brown
and Steen to stop committing the robberies, and because Dillard had known
the two longer, asked him to persuade them to stop. Dillard testified that
he himself had believed there would be no more robberies because he had
taken his gun back after the two earlier crimes. He said that the four
were heading back to his home when they came to a dead end and, after
turning the car around, had stopped when they saw Mary Patrick apparently
flagging them down. Dillard testified that Brown had grabbed the gun but
that Foster was unlikely to have seen that; that there was no agreement or
plan to rob anyone; and that no one had encouraged Brown to do what he
did. He said that after the shot was heard, Foster had appeared surprised
and panicked and started to drive away, but Dillard had told him to stop
and wait for Brown.

Julius Steen signed an affidavit in 2003 clarifying his trial testimony,
clarification that had not been elicited by the defense because their
cross-examination was inevitably weak due to their lack of pre-trial
contact with this witness. Steen recalled that it was only when he had
seen Mauriceo Brown standing opposite Michael LaHood that he understood
"what might be going down. At that point, and not before, I thought that
Brown might be robbing the man". He stated that "There was no agreement
that I am aware of for Brown to commit a robbery at the LaHood residence.
I do not believe that Foster and Brown ever agreed to commit a robbery. In
my opinion, I don't think that Foster thought that Brown was going to
commit a robbery. When Brown got back in the car, we were all shocked.
Even Brown looked shocked. I don't think that Brown knew why he shot the
man and was surprised that he did". In a recent appeal, Foster's lawyer
has argued: "Foster clearly did not anticipate what Brown himself did not
foresee. Brown clearly acted on his own independent impulse, and not
pursuant to the imaginary robbery conspiracy that has trapped Kenneth
Foster on death row".

In 2005, a federal district judge found a "fundamental constitutional
defect in Foster's sentence". In 1982, the US Supreme Court had ruled in
Enmund v. Florida - in the case of a man who had been in a parked car
while his accomplices committed robbery and murder in a house nearby -
that the death penalty is disproportionate if it is imposed on a defendant
who did not himself kill, attempt to kill, or intend to kill the victim.
The Court modified this rule five years later in Tison v. Arizona when it
held that a defendant who participates in a crime that leads to murder and
whose "mental state is one of reckless indifference to the value of human
life" may be sentenced to death. The federal judge ruled that Foster's
jury had not been asked to determine if he had any intent to kill LaHood,
and that this failure represented a misapplication of the law. However,
Texas appealed to the Fifth Circuit Court of Appeals, which overturned the
decision.

Since the USA resumed executions in 1977, 1,089 prisoners have been put to
death; 398 of them in Texas. There have been 32 executions in the USA in
2007, 19 of them in Texas. The UN Safeguards Guaranteeing Protection of
the Rights of those facing the Death Penalty state that "capital
punishment may be imposed only when the guilt of the person charged is
based upon clear and convincing evidence leaving no room for an
alternative explanation of the facts". The fact is that Kenneth Foster did
not kill Michael LaHood, and there is compelling evidence that he did not
plan, intend or anticipate that he would be robbed or killed either.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible
(please include Kenneth Foster's inmate number, #999232):

- expressing sympathy for the family of Michael LaHood, and explaining
that you are not seeking to excuse the manner of his death or to downplay
the suffering it will have caused;

- noting that the person who actually shot Michael LaHood, Mauriceo Brown,
was executed last year;

- expressing concern at the use of the law of parties in this case, noting
evidence that the shooting was the spontaneous act of Mauriceo Brown, and
that all those involved in the crime have said that there was no
conspiracy to rob Michael LaHood, which would make Kenneth Foster innocent
of capital murder;

- noting that the two other accomplices in the car were never prosecuted
in this crime, and yet as the evidence stands today their and Foster's
culpability in it would appear to be similar or the same;

- calling for Kenneth Foster to be granted clemency.

APPEALS TO:

Rissie Owens, Presiding Officer
Board of Pardons and Paroles
Executive Clemency Section
8610 Shoal Creek Boulevard
Austin, TX 78757
Fax: 1 512 463 8120
Salutation: Dear Ms Owens


Governor Rick Perry
Office of the Governor
P.O. Box 12428
Austin, Texas 78711-2428
Fax: 1 512 463 1849
Salutation: Dear Governor

PLEASE SEND APPEALS IMMEDIATELY.

Amnesty International is a worldwide grassroots movement that promotes and
defends human rights.

This Urgent Action may be reposted if kept intact, including contact
information and stop action date (if applicable). Thank you for your help
with this appeal.

Urgent Action Network
Amnesty International USA
600 Pennsylvania Ave SE 5th fl
Washington DC 20003
Email: uan at aiusa.org
http://www.amnestyusa.org/urgent/
Phone: 202.544.0200
Fax: 202.675.8566

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END OF URGENT ACTION APPEAL

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