[Deathpenalty] death penalty news----TEXAS

[Rick Halperin]

August 31



TEXAS:

Perry commutes sentence of death row inmate----Sentence commuted to life
for driver in '96 murder


Gov. Rick Perry blocked the execution of death row inmate Kenneth Foster
and reduced his sentence to life in prison Thursday after weeks of
statewide protest and controversy over the law used to convict him.

The unusual intervention came just after the Texas Board of Pardons and
Paroles voted, 6-1, to recommend that the sentence be commuted, which is
also rare. It's the first time in nearly seven years in office that Mr.
Perry has stopped an execution, other than in response to Supreme Court
rulings that barred the execution of juveniles and the mentally retarded.

Mr. Foster, the getaway driver in a 1996 armed robbery spree that ended in
the murder of a 25-year-old San Antonio man, was scheduled to die Thursday
evening. He was not the trigger man in the killing and contends he didn't
know it was going to happen. But he was convicted, in the same courtroom
and at the same time as the shooter, under the state's "law of parties,"
which authorizes capital punishment for accomplices who either intended to
kill or "should have anticipated" a murder.

That law has drawn international protests, but Mr. Perry indicated he was
more concerned about the simultaneous trials.

"It is an issue I think the Legislature should examine," the governor said
in a written statement.

Mr. Foster, 30, will be eligible for parole in 30 years.

Mr. Foster's family and supporters, gathered in Huntsville for the
possible execution, were jubilant.

"We're all a little numb  it's almost disbelief," said Dana Cloud, a
spokeswoman for the Save Kenneth Foster campaign. "It is a historic
turning point for Kenneth. But it's also a historic turning point in
Texas, and indeed, with regard to death penalty in general."

But the news was heartbreaking to Nico LaHood, who found his older
brother, Michael LaHood, shot through the eye in their driveway on that
summer night in 1996.

"It's not justice," he said. "I don't think an independent jury's verdict
should be questioned."

Officials at the Bexar County district attorney's office, which prosecuted
the case against Mr. Foster, did not comment on the commutation. But in an
interview last week, First Assistant District Attorney Cliff Herberg said
Mr. Foster is as guilty as if he fired the gun himself.

The Foster decision was the governor's highest-profile death sentence
ruling since 2004, when he rejected a 5-1 recommendation of clemency for
Kelsey Patterson, an inmate with a long history of mental illness. Mr.
Perry has been a staunch advocate of Texas' death penalty, in the face of
international mockery and pressure to curb executions at the country's
busiest death row. Texas has executed more than 400 people since resuming
capital punishment in 1982.

Joint-trial issue

House Corrections Committee Chairman Jerry Madden said he expects "a lot
of hearings, a lot of information provided" for lawmakers on the
joint-trial issue when they next meet in 2009. But the law of parties, he
said, is probably here to stay.

"That's been in effect for a long time," said Mr. Madden, R-Richardson.

Sen. Rodney Ellis, a Houston Democrat who has actively pushed for death
penalty reform, said he may try to pass legislation on both issues.

"Someone facing the possibility of the death penalty at the very least
deserves their own fair and separate trial," Mr. Ellis said.

About 80 Texas death row inmates were convicted under the law of parties,
and about 20 of those have been put to death. Most states have such laws
for many types of crimes, but Texas is the only state to apply it broadly
to capital cases. While death penalty opponents decry its use, prosecutors
argue that all those responsible for heinous crimes must be held
accountable.

Given the amount of attention paid to the law of parties throughout Mr.
Foster's appeals, "it's hard to imagine this not sparking more
conversation," said Rob Owen, a law professor and co-director of the
Capital Punishment Clinic at the University of Texas. Mr. Owen said he
believes the problem is not with the law itself, but with how Texas
carries it over into sentencing.

Mr. Foster acknowledges he was up for getting high and robbing a few
people on that night 11 years ago. But he was in a car with two other men
nearly 90 feet away when one of his partners shot and killed Mr. LaHood in
what jurors determined was a botched robbery.

The men in the car, including Mr. Foster, have testified that they thought
they were finished robbing for the night and that there was no plan to
stick up  and certainly not to murder  Mr. LaHood. The shooter, Mauriceo
Brown, was executed last year.

Mr. Foster's attorney has said he believes his client's fate was sealed
during his joint trial with Mr. Brown, when one of his robbing partners
testified that "it was kind of ... understood what was probably fixing to
go down" when Mr. Brown got out of the car.

It was enough for jurors  and later, the appeals court  to support a
capital murder charge for Mr. Foster on the basis of conspiracy. They
believed Mr. Foster, as the getaway driver in 2 previous robberies, either
knew what was about to occur or should have anticipated it.

But Mr. Foster's attorney never got the chance to cross-examine the 2
other partners, who both received life sentences. One has since given a
sworn statement to Mr. Foster's attorney saying he didn't understand that
Mr. Brown's intent was to rob Mr. LaHood until Mr. Brown had already made
his way up the driveway. The other has testified that Mr. Foster asked the
men all night to quit and worried about returning the car to his
grandfather.

The Texas Court of Criminal Appeals, the state's highest criminal court,
upheld Mr. Foster's sentence for a final time this month. The governor, as
the last line of defense in Texas death row cases, has the authority to
reduce a death sentence to a life sentence with the written recommendation
of a majority of members of the Board of Pardons and Paroles. The
seven-member panel did not give a reason for its recommendation.

Resigned to his fate

In an interview on death row in Livingston last week, Mr. Foster appeared
calm and resigned to his fate  but vowed he wouldn't be an "active
participant" in his execution. He had stopped eating in protest, he said,
and was distracting himself with books, letters and silent prayers that
Mr. Perry would take his case seriously.

"I know a lot of eyes are on me right now," Mr. Foster said. "I just feel
like I'm in a plane, and the engines went out, and all I've got is a
parachute that won't open."

At a rally outside the Governor's Mansion on Thursday night, Keith
Hampton, Mr. Foster's attorney, said his client has a long road ahead of
him and that he's not confident he'll ever be paroled. But he said he
expects Mr. Foster to be moved to more comfortable confines promptly
perhaps somewhere he can earn a college degree.

"People should not underestimate the hardship of a life in prison," said
Mr. Hampton, who spent much of this week "a total basket case."

"He will find a way to contribute," he said, "to the prison world and the
free world."

(source: Dallas Morning News)

***********************

Perry right to grant rare death row reprieve


Kenneth Foster had about 7 hours to live when the first flicker of hope
appeared.

By a vote of 6 to 1, the Texas Board of Pardons and Paroles recommended
commuting his death sentence.

Time was dwindling, though, and the final decision rested with Gov. Rick
Perry, who has shown little inclination to spare condemned prisoners.

But yesterday, Mr. Perry moved quickly to do the right thing. About an
hour after the board issued its recommendation, he commuted Mr. Foster's
sentence to life.

The governor made a wise decision by issuing this rare reprieve.

Mr. Foster is a criminal  not a killer. He was sentenced to die for a
fatal shooting carried out by his buddy. He was the getaway driver one
night in 1996 when a robbery spree turned murderous. But Mr. Foster was
sitting nearly 90 feet away in the car when Mauriceo Brown pulled the
trigger.

Mr. Foster was tried alongside the shooter. And prosecutors argued that he
either intended to kill or should have anticipated a murder.

In commuting Mr. Foster's sentence, the governor raised important
questions about the process that permitted a capital murder accomplice to
be convicted in the same courtroom as the triggerman. "I am concerned
about Texas law that allows capital murder defendants to be tried
simultaneously, and it is an issue I think the Legislature should
examine," Mr. Perry said. We agree.

But lawmakers should go further. Texas is the only state that broadly
applies the "law of parties" to capital cases, allowing accomplices to be
executed for murders they did not commit.

Mr. Foster is one of about 80 death row inmates who have been convicted
under this law. And while his death sentence sparked outrage across the
country, other, similar cases deserve additional scrutiny as well.

Our discomfort with the lack of clarity in cases such as Mr. Foster's and
with the state's seemingly arbitrary application of the death penalty have
spurred this newspaper's opposition to capital punishment.

Mr. Foster will spend the rest of his life in a Texas prison. For that, he
can thank the governor.

But we should not rely on dramatic, 11th-hour reprieves from the
executioner's needle to ensure that justice is done.

(source: Editorial, Dallas Morning News)

***************

Board's ruling not seen as shift in favor of killers----Commutation is
only the fifth one recommended in more than 12 years


The Texas Board of Pardons and Paroles' role in saving a San Antonio
killer from execution Thursday may have delighted death penalty opponents,
but legal experts said the panel's recommendation of mercy does not
portend a policy of sympathy for capital killers.

The board's 6-1 recommendation that Kenneth Foster's death sentence be
commuted to life in prison was only the fifth time in more than a dozen
years that the board has acted in favor of a killer.

Thursday's action also marked the fourth time in that period in which a
governor accepted the board's recommendation of a life sentence.

Gov. Rick Perry made the move about seven hours before Foster's scheduled
execution and explained that his concern centered on the fact that Foster,
who drove the getaway car, and the gunman were tried together.

While Texas' position as the nation's busiest death penalty state remains
secure, Thursdays action may lead to greater discretion in the filing of
capital cases against those other than the actual killers.

"With the death penalty under tighter scrutiny if someone isn't the actual
shooter, it's going to be harder to get the death sentence," said Richard
Dieter, executive director of the non-partisan Death Penalty Information
Center.

Perry's commutation of Foster's death sentence "was very unexpected," said
Rob Owen, a clinical professor at the University of Texas School of Law.

"This decision by the governor today, which I applaud, can be justified in
that Mr. Foster did not anticipate that a killing would take place," Owen
said. "That will serve to distinguish this case from any other case."

But it would be "over interpreting the case" to conclude that the parole
board has become more receptive to killer's appeals, said David Dow, a
University of Houston law professor also with the Texas Innocence Network.

"I think Gov. Perry's statement illuminates the highly unusual nature of
the board's action in this case," Dow said, alluding to the governor's
expressed concern about the pair being tried together.

The lesson to be drawn from the board's action, Dow said, is that
appellate attorneys should submit clemency petitions to the pardons board
more often. He said they are not filed in 75 % of capital cases in Texas
because "attorneys don't get paid for doing it."

The law of parties

Foster would have been the third Texas prisoner executed in as many days
and the 24th this year. He was the getaway driver and not the shooter in
the killing of 25-year-old Michael LaHood Jr. in San Antonio 11 years ago.
He was convicted under a Texas statute known as the law of parties which
holds all participants in a crime equally culpable.

Some estimate that there are fewer than 100 inmates now serving on death
row who were convicted under the statute. In Harris County, the statute
was pursued at one point in a case which ultimately resulted in the
inmate's execution in March.

Joseph Nichols was executed for a 1980 convenience store robbery-murder
even though his accomplice, Willie Williams, had been convicted as the
triggerman.

After Williams was sentenced to death, Nichols was initially tried under
the law of parties. Jurors found Nichols guilty of capital murder, but
deadlocked over punishment, leading to a mistrial. Jurors later told
prosecutors they had difficulty sentencing Nichols to death when Williams
already had confessed to firing the fatal bullet.

In the 2nd trial, prosecutors accused Nichols of firing the fatal bullet.
The switch in tactics brought the one-time high school football star's
conviction and death sentence.

(source: Houston Chronicle)

******************

Press Release from Jack Lang concerning the comutation of sentence for
Kenneth Foster


I learned with happiness that the Governor of Texas comuted Kenneth
Foster's death sentence although he was innocent. With other activists, I
had made a committment to try to stop the irreversible and to oppose such
a barbaric act which would have stained America.

This exceptional decision by the Governor of Texas can let us hope that
even in this state, which beats all records in terms of executions, the
matter of capital punishment will be open for debate.

My thoughts go to Kenneth's family, particularly to his wife Tasha and his
grandfather. I hope that Kenneth will, one day, regain the freedom he
deserves.

(source: Office of Jack Lang (former Minister of Culture)- France)

****************

Council of Europe Secretary General Terry Davis welcomes the clemency
decision for Texas death row man


"I welcome the decision by the Texas Governor Rick Perry to commute the
death sentence for Kenneth Foster who was sentenced to die in spite of the
fact that he did not kill anyone. The Governor's decision has saved one
human life and prevented an obvious perversion of justice as well as a
colossal embarrassment for the State of Texas and the United States of
America as a whole. I am glad that the Governor has responded to the large
number of representations from people in the USA and abroad, including
myself as the Secretary General of the Council of Europe, who asked for a
stay of execution.

This is the latest in the series of developments which give some hope that
common sense, human decency and the respect for justice will eventually
prevail, and that the United States of America will follow the example of
Europe where we do not execute people because this inhuman and degrading
form of punishment is contrary to the European Convention on Human
Rights."

(source: Council of Europe Press Division)