An appointment with death despite the evidence

Thats the title of an opinion piece by the Fort Worth Star-Telegram writer, Bob Ray Sanders against the execution of Kenneth Foster.

Another trip to Death Row.

Another man scheduled to die on the gurney in Texas' infamous killing chamber.

Another human being who does not deserve this tragic fate.

And another case that speaks to the absurdity of how capital punishment is applied in general throughout this country, but particularly in the Lone Star State.

The case of Kenneth Foster Jr., scheduled to die next month for a 1996 murder in San Antonio, is further proof of how cruel, capricious, unjust and utterly insane our death penalty laws have become.

Because of this tainted system, whether you believe in capital punishment or not, a man who did not plan or commit a murder will die Aug. 30 unless somebody -- a judge, the Board of Pardons and Paroles and/or the governor -- has the heart and the guts to stop it.

On Aug. 14, 1996, Foster -- who was 19 at the time -- was driving around with two guys he recently had met, Dewayne Dillard and Julius Steen. They were in a car that had been rented by Foster's grandfather, the man who basically had raised him since he was in the fourth grade because "my mother and father ran the streets," he said.

According to Steen's testimony, they were "just goofing off, more or less, and smoking some weed" when they decided to pick up a fourth person, Mauriceo Brown, who rode with them into the night.

Testimony showed that at some point, Brown announced that because they had a gun, they ought to "jack" someone.

With Foster as the driver, Steen and Brown first got out of the car and robbed a Hispanic woman at gunpoint and later robbed a man and two women in a parking lot.

On their way home, they came off the freeway and ended up in a residential neighborhood and saw, according to court documents, "a scantily-clad woman, Mary Patrick, who approached them and demanded to know why they were following her."

As it turned out, Patrick had been following her friend Michael LaHood to his home, and the car driven by Foster was right behind their two cars until they came to a dead end and turned around.

After seeing Patrick standing at the edge of the driveway, they assumed there was a party going on. They stopped and chatted with her for a few seconds, when she started cursing Steen and accusing the group of following her.

Foster put his foot on the gas and prepared to leave, he said, knowing he needed to get the car back to his grandfather. But Brown jumped out of the car, he said, went up the steep driveway and started talking to LaHood, who was more than 80 feet away from the car.

He said he heard a "pop," and when Brown got back to the car, "We're asking -- everybody's asking -- what went down? What happened?"

Brown had shot LaHood.

Shortly afterward, the four men would be arrested and later charged with capital murder.

Dillard and Steen were never made available to Foster's attorney while the district attorney held other cases over them. The district attorney chose to try Foster and Brown together, and the judge refused to sever the cases.

Foster was convicted along with Brown under the Texas "law of parties," even though he never participated in, intended for or anticipated a murder.

Prosecutors, with the help of testimony from Steen, made jurors believe that Foster had conspired in the killing and should have anticipated it.

"[Foster] was a victim of a statute that was never intended by its authors to be used this way," said Austin attorney Keith S. Hampton, who recently filed a second application for a writ of habeas corpus with the district court in San Antonio and an application for commutation of sentence with the Board of Pardons and Paroles.

"I talked to the authors, and they intended [the statute] to be used in conspiracy cases," Hampton said.

Steen has since said that he was pressured by the prosecutors to give the trial testimony and has signed an affidavit clarifying that he did not intend to imply that Foster was aware of what Brown was about to do. Brown himself testified that neither Foster nor the others had planned a robbery or a shooting of LaHood, nor did they know what he was doing.

At least one of the jurors has said in an affidavit "that he would have given a different verdict if he had known that Kenneth Foster did not anticipate that Brown would take the gun when he got out of the car, did not anticipate Brown would shoot LaHood, or that he tried to drive away when he heard the shot," according to court documents.

Federal District Judge Royal Furgeson of San Antonio overturned Foster's death sentence in 2005, saying:

"There was no evidence before Foster's sentencing jury which would have supported a finding that Foster either actually killed LaHood or that Foster intended to kill LaHood or another person. Therein lays the fundamental constitutional defect in Foster's sentence .... Therefore, Foster's death sentence is not supported by the necessary factual finding mandated [by the U.S. Supreme Court] and, for that reason, cannot withstand Eighth Amendment scrutiny."

The 5th U.S. Circuit Court of Appeals overturned that decision. Last spring, the U.S. Supreme Court, which was considering three other Texas death penalty cases at the time, did not take Foster's appeal.

Thus, the subsequent writ application and request for commutation have been filed in an effort to save Foster's life. His supporters also have been writing to the governor and the pardons and paroles board.

"I've never tried to portray myself as an angel," Foster told me on a recent visit to Death Row. "I take responsibility. I was a follower. I was a fool for being there."

He added: "We're not saying I never did anything wrong; for this case, I did nothing wrong. I didn't conspire, I didn't participate, and I didn't plan."

Mauriceo Brown was executed for this crime on July 19, 2006. Foster's execution is set for Aug. 30.

Steen pleaded guilty to two capital murder cases and received a sentence of 35 years to life, and Dillard was given a life sentence.

Does Foster deserve a more severe sentence than Steen and Dillard?

No.

Texas has become the "capital" in "capital punishment," and it is time for us to put an end to the madness.

We can start by making sure this one innocent man's life is spared.

NOTE: In Wednesday's column, I'll tell you more about my conversation with Foster -- his views on dying, Death Row and his feelings for the victim and his family.

bobray@star-telegram.com
Bob Ray Sanders' column appears Sundays and Wednesdays. 817-390-777