Another stain on justice, Texas style

Thats title of a last minute editorial by the Austin American-Statesman calling on Governor. Perry and the Board of Pardons and Parole to "spare a life, uphold justice and bring a semblance of honor to Texas this week..."

Gov. Rick Perry can spare a life, uphold justice and bring a semblance of honor to Texas this week, if only he will seize the opportunity.

Perry has the power to stop the execution of death row inmate Kenneth Foster, scheduled to die Thursday for a crime everyone acknowledges that he did not commit. The state's Board of Pardons and Paroles also can halt the execution.

Foster, 30, is not the sweetheart anti-death penalty activists insist he is. He was a thug, armed robber and drug dealer in San Antonio. But he did not commit the murder that put him on death row.

Foster was driving the car with three criminal friends on a robbery spree the night Michael LaHood, 25, was shot and killed in 1996. One of Foster's passengers, Mauriceo Brown, shot LaHood in the face during an attempted robbery. Brown was executed for that crime last year.

Foster was convicted under Texas' Law of Parties statute that considers those who had a major role in a capital crime as guilty as the actual killer. Texas is the only state that applies the Law of Parties to capital crimes, and an estimated 80 death row inmates have been condemned to die under that statute.

Foster and the others in the car with him say Foster had no idea Brown would kill LaHood. But prosecutors and a jury said Foster should have known that Brown intended to shoot LaHood and should have prevented it.

The inescapable problem with the Law of Parties is that a jury has to go back in time and read the defendant's mind, guess at his intention. The sentence is based on what the jury believed Foster was thinking when the crime occurred. No one's life should hinge on guesswork by jurors.

A federal district judge overturned the death sentence in 2005 after determining that Foster didn't play a major role in the conspiracy to rob LaHood. But the 5th U.S. Circuit Court of Appeals reversed the district court and reinstated the death sentence in 2006. The U.S. Supreme Court refused to hear Foster's appeal.

So now it's up to Perry or the Board of Pardons and Paroles to do the right thing and spare Foster's life by granting him a reprieve. It's the only just thing to do. If the governor or parole board allows this execution, Texas will be further stained by injustice.

Since the death penalty was reinstated by the Supreme Court in 1976, Texas has executed 400 people, far more than any other state. That's more than a third of all the 1,100 executions in the United States in that same period.

Everyone can sympathize with LaHood's family and share their grief at their loss. But granting Foster a reprieve in no way endangers this state's embrace of the death penalty or threatens to turn a cold-blooded killer loose on the streets.

It only assures that one man is not put to death for a crime committed by someone else. It's simple justice.