July 4
TEXAS: On Death Row: Texas' 'Law of Parties' The Texas "law of parties" is back in the death row spotlight, with the filing of a final appeal for condemned Texas inmate Kenneth Foster, scheduled for execution Aug. 30 for his role in the 1996 murder of Michael LaHood in San Antonio. Foster and 3 other men, Julius Steen, Dwayne Dillard, and Mauriceo Brown, were riding around San Antonio on Aug. 14, 1996, in a rental car Foster borrowed from his grandfather. Brown had a gun, and earlier that evening the 4 men participated in two random robberies stealing money and possessions from random people in parking lots but physically harming no one. After midnight, the four found themselves riding behind two cars in an unfamiliar part of town. Foster, then 19, followed the cars, which eventually stopped outside a large house at the top of a steep driveway. There were several cars there, and it looked like there might be a party. The 4 men stopped; a young woman approached and leaned into the car. She bickered about them following her car and then eyeballing her figure. The woman walked up the driveway, and Foster was about to drive away when Brown jumped out of the car and followed the woman and LaHood toward an entry gate outside the home. Moments later, the 3 in the car were startled by a gunshot; Brown jumped back in the car. He had shot and killed LaHood. Kenneth Foster did not kill LaHood; there was no doubt that Brown fired the fatal shot. Still, the Bexar Co. District Attorney's Office argued that Foster was criminally liable for the crime under state law because he "should have anticipated" Brown would kill LaHood. The DA's theory was that the four intended to rob LaHood and had entered into a conspiracy to do so. That they didn't intend for LaHood to die was not important because their behavior (in planning a robbery and in carrying out previous robberies) was so reckless that they easily could have anticipated the loss of life. Foster was convicted and sentenced to die for the killing. Unless the Texas Court of Criminal Appeals grants his final appeal, he will be executed next month. To attorney Keith Hampton, executing Foster would be a grave miscarriage of justice. He says the prosecution's entire case against Foster was built upon an ambiguous snippet of testimony offered by Julius Steen during Foster and Brown's 5-day joint trial back in April 1997. (Brown was executed for the murder last July.) Steen testified at trial that he "kind of thought" that Brown intended to rob LaHood when he jumped out of the car to follow the woman, Mary Patrick (LaHood's girlfriend). What Foster's trial attorneys didn't know, says Hampton, is that Steen didn't actually mean what prosecutors alleged he meant and what he did mean changes everything. Before Foster's trial, Steen copped a deal with prosecutors: In exchange for his testimony in the LaHood case and in another unrelated, federal capital murder case, he would receive a truncated sentence for robbery. Steen's attorney refused to let Foster's lawyers interview Steen before the 1996 trial, so they had no way to effectively cross-examine Steen's testimony. It wasn't until early 2003 that Hampton finally got a chance to interview Steen. Steen told him that he didn't think Brown intended to rob or to kill LaHood; he said there was no conspiracy among the four men and certainly none between Brown and Foster. Foster, he said, seemed to be in shock after hearing the gunshot, as did Brown. "When Brown got back in the car, we were all shocked," Steen wrote in an affidavit. "Even Brown looked shocked. I don't think that Brown knew why he shot the man and was surprised [himself] that he did." Steen told Hampton it wasn't until after Brown left the car and was up at the top of the LaHood driveway (nearly 90 feet away) that it crossed Steen's mind Brown might attempt to rob LaHood. It was a fairly stunning revelation that completely dismantles the prosecution's assertion that Foster was involved in a "conspiracy" to rob LaHood and, thus, under the law of parties, criminally liable for his murder. "Steen has now refuted the inferences that Foster was a party to Brown's murder of LaHood," Hampton wrote in Foster's final appeal, filed June 14. "The inferential theory of an understanding between Foster and Brown to rob LaHood crumbles with Steen's explanation about his ambiguous and heretofore unexplained" testimony. The Court of Criminal Appeals denied Foster's first appeal in 2002, before Hampton talked to Steen. So he argues that the court must revisit the case to consider this new, and previously unavailable, evidence, which eliminates Foster as a conspirator in a robbery-murder plot. (Although the prosecution's "conspiracy" theory should implicate Steen and Dillard making both men eligible for the death penalty, as well prosecutors never pursued a similar case against either man. Steen cut a deal, and Dillard was never charged with any crime in connection with the murder.) Hampton notes that in denying Foster's first appeal, the court pointed to Steen's trial testimony as central to the case: The case against Foster, the court wrote, "rested largely on [Julius] Steen's testimony as an accomplice." Now, Hampton says, he finally has the evidence needed to prove that simply was not the case. "Because this newly-discovered evidence is the heart of Foster's culpability," Hampton wrote, "any doubt about the impact of Steen's testimony must be resolved in favor of Foster in order to avoid the miscarriage of justice which permitting his execution would create." At press time, Foster's appeal was still pending before the court. (source: Austin Chronicle) ******************* High Court Holds Up Panetti Execution Fredericksburg convicted killer Scott Panetti, 49, has received a reprieve from his 1995 death sentence after the U.S. Supreme Court on Thursday issued a ruling that at least temporarily blocks the execution of the death row inmate for the 1992 shooting deaths of his wife's parents. The 5-4 ruling sends the case back to Austin where U.S. District Judge Sam Sparks must determine if Panettis delusions make him mentally incompetent to be executed. Meanwhile, Panetti will remain on death row as the case progresses. In the court's majority opinion, Justice Anthony Kennedy wrote that it is not enough for inmates to understand that they are to be executed -- as has been the standard developed by the 5th U.S. Circuit Court of Appeals. Instead, Kennedy said that a U.S. Constitution restriction against cruel and unusual punishment -- established in a 1986 court holding -- demands that inmates also understand why they are to be executed. Panetti, who has been treated over the years for schizophrenia and paranoid delusions, claims satanic forces want him executed in order to silence him from preaching the Gospel rather than for the shooting deaths of Fredericksburg residents Joe and Amanda Alvarado on the morning of Sept. 8, 1992, while his estranged wife and toddler daughter watched. In its ruling, the court said that Panetti was improperly denied the chance to prove he is mentally unfit for execution. But, in ordering the district court to reassess Panetti's competence, the court declined to provide a precise standard for assessing his claims, leaving that job up to the lower courts. Ultimately, legal experts speculate that the high court will have to revisit the case in a future appeal. Meanwhile, Texas officials have predicted that Thursday's ruling will invite abuse from capital murderers and, as Texas Solicitor General Ted Cruz said, "subject the courts to numerous claims of incompetency and even further delay justice for the victims' families." Thursdays decision follows a lengthy appeals process that arrived before the high court in April. In a 1995 capital murder trial at Kerrville where he acted as his own attorney, Panetti dressed up in cowboy attire, claiming that he had other personalities and even subpoenaing the late President John F. Kennedy and God. However, the jury rejected his insanity defense and sentenced him to death. Panetti had been scheduled to die by lethal injection on Feb. 5, 2004, but a stay of execution was issued the day before by U.S. District Judge Sparks for the Western District of Texas, pending an examination to determine if he was competent to be executed. Subsequently, Judge Sparks ruled in October of 2004 in Austin that Panetti was sane enough to be executed but that he could not be put to death until the next tier of federal courts -- the 5th Circuit Court of Appeals -- addressed the former Fredericksburg resident's challenge. Subsequently, the 5th Circuit Court's 3-judge panel ruled in May of 2006 that Panetti was sane enough to receive the death sentence. In that ruling, the panel -- which interprets law for Texas, Louisiana and Mississippi -- said that mentally ill convicts can be executed as long as they have a basic understanding of their punishment. That decision maintained that Panetti did not need to believe he was being executed for the murders of his estranged wife's parents. Previously, state and federal appeals courts had found nothing wrong with Panettis trial, and the U.S. Supreme Court had declined to hear his appeal. In addition, the Texas Attorney General's Office had determined that Panetti was competent enough to be executed, and the Texas Board of Pardons and Paroles also voted, 15-1, against a reprieve. Numerous appeals to have Panetti\'s death sentence commuted to life imprisonment have also failed. (source: Fredericksburg Standard) ************* High court upholds death sentence ---- Execution date on hold while state considers writ The Court of Criminal Appeals affirmed the capital murder conviction of Beunka Adams June 27. An Anderson County jury sentenced Mr. Adams to death Aug. 30, 2004, for the capital murder of Kenneth Vandever, 37, of Rusk. The case had been transferred from Cherokee County to Anderson County on a change of venue granted by District Judge Bascom Bentley III. Mr. Adams was 19 at the time of the murder. Also, convicted for the murder and sentenced to death was Richard Cobb. Mr. Cobb's conviction on a direct appeal was affirmed Jan. 31. The two men are charged with taking Mr. Vandever and 2 females to a pea field near Alto. The women were shot and wounded and Mr. Vandever shot and killed. Evidence presented in the court hearings revealed that on the night of the murder the men entered BDJs convenience store wearing masks and demanding money. One of them was armed with a shotgun. After taking the money from the cash register they demanded the keys to a Cadillac parked outside. The 2 women were employees of the store. Mr. Adams and Mr. Cobb forced the 3 into the car. After arriving at the secluded field, 1 female and Mr. Vandever were told to get into the trunk of the car. The other female was taken away and sexually assaulted. Both women were wounded. Still pending in Mr. Adams' case is a ruling on the finding of fact and conclusions of law in the state's writ of habeas corpus. If the court denies this relief, then the trial court will set an executive date. At that point, Mr. Adams can file for a federal writ of habeas corpus. A writ of habeas corpus is a challenge to the legality of the sentence in the case. Don Killingsworth and Sten Langsjoen represented Mr. Adams at the trial. Stephen Evans represented him on direct appeal. Jeff Haas is representing him in his state writ of habeas corpus appeal. District Attorney Elmer C. Beckworth Jr. said last week that at the time of the murder, Mr. Adams had a prior juvenile robbery conviction. Mr. Cobb had a previous juvenile burglary conviction and a juvenile assault conviction. He was on adult probation for unauthorized use of a motor vehicle charges. Execution date for both men is expected to be within 3 to 5 years, Mr. Beckworth said. The state was represented by Mr. Beckworth and then Assistant District Attorney David R. Sorrell. On direct appeal and on the writ of habeas corpus the state was represented by D.A. Beckworth. The decision on the direct appeal by 9 members of the Court of Appeals was unanimous. (source: The Cherokeean Herald) ******************** The Quality of Bush's Mercy When George W. Bush was governor of Texas, he presided over more than 150 executions. In more than 1/3 of the cases "57 in all " lawyers representing condemned inmates asked then-Governor Bush for a commutation of sentence, so that the inmates would serve life in prison rather than face execution. Some of these inmates had been represented by lawyers who slept during trials. Some were mentally retarded. Some were juveniles at the time they committed the crime for which they were sentenced to death. In all these cases, Governor Bush refused to commute their sentences, saying that the inmates had had full access to the judicial system. I. Lewis Libby Jr. had the best lawyers money can buy. His crime cannot be attributed to youth or retardation. He has expressed no remorse whatsoever for lying to a grand jury or participating in the administration,s effort to mislead the American people about the war in Iraq. President Bush's commutation of Mr. Libby's sentence is certainly legal, but it just as surely offends the fundamental constitutional value of equality. Because President Bush signed a commutation, a rich and powerful man will spend not a day in prison, while 57 poor and poorly connected human beings died because Governor Bush refused to lift a pen for them. (source: CounterPunch ---- David R. Dow is a professor at the University of Houston Law Center who represents death row inmates, including several who sought commutation from then-Governor Bush)
