Fort Worth Star-Telegram: Foster case shows how capricious the death penalty is.

An appointment with death despite the evidence
By Bob Ray Sanders
Star-Telegram Staff Writer

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. 817-390-7775

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