NYT: Law of Parties Puts People to Death for What They “Might Have Been Thinking.”

The New York Times

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August 30, 2007

Date With the Executioner for Murder by Someone Else

HOUSTON, Aug. 29 — Kenneth Foster has a date on Thursday with the executioner’s needle. Not for killing anyone himself but for what he was doing — and may have been thinking — the night in 1996 when he was 19 and a sidekick pulled the trigger, killing a 25-year-old San Antonio law student.

Ensnared in a Texas law that makes accomplices subject to the death penalty, Mr. Foster, 30, is to become the third death row inmate this week, and the 403rd since capital punishment resumed in Texas in 1982, to give his life for a life taken.

But unlike most others condemned to death in this state, Mr. Foster, a onetime gang member, aspiring musician and prison poet from San Antonio, is not a murderer in the usual sense. He was convicted and sentenced to die for abetting a killing — 80 feet away — that he may, or may not, have had reason to anticipate.

The man who pulled the trigger is dead, executed last year. One accomplice is serving life in prison as a result of a plea bargain, and a second is serving life for a separate murder.

Now, failing a last-minute reprieve, Mr. Foster, the group’s driver in a robbery spree — who argues that he never was party to the murder — is facing lethal injection. His guilt, affirmed so far in every appeal, including five turned away by the United States Supreme Court, hinges in large part on difficult questions of awareness and intention.

Other states hold co-conspirators responsible for each other’s criminal acts in a so-called law of parties. But few of those have a death penalty. And no other state executes them on the scale of Texas.

With polls showing capital punishment still enjoying majority support in Texas and around the country, but by dwindling margins, the Foster case has spurred vigils and protests from abroad to the death house in Huntsville, as well as a backlash by victim’s rights advocates who still mourn the slain law student, Michael LaHood Jr.

It has also smudged concepts of guilt and innocence. If Mr. Foster is not legally guilty of murder, as his lawyer, Keith S. Hampton, and supporters contend, many find it hard to pronounce him blameless.

“I’d hate to use the word innocent,” said his father, Kenneth Foster Sr., a former heroin addict who told a church audience in Houston Saturday that he used to take his baby son with him on drug runs and petty crimes. He said his son “should be punished to some degree, but not put to death.”

At the heart of the case is Texas’s law of parties under which those conspiring to commit one felony such as a robbery can all be held responsible for an ensuing crime, like murder, if it “should have been anticipated.”

In 1982, in Edmund v. Florida, the United States Supreme Court found that the Constitution barred the death penalty for co-conspirators who do not themselves kill. But five years later in Tison v Arizona, the justices carved out an exception, ruling that the Eighth Amendment did not forbid execution of a defendant “whose participation in a felony that results in murder is major and whose mental state is one of reckless indifference.”

According to evidence in the case, on the afternoon of Aug. 14, 1996, Mr. Foster had borrowed his grandfather’s rented white Chevy Cavalier and was driving three companions — Julius Steen, Dewayne Dillard, and Mauriceo Brown — on a robbery spree through San Antonio. Mr. Steen and Mr. Brown, with Mr. Dillard’s gun, held up four people.

After midnight, they trailed two cars to a street where Mr. LaHood had just driven home, followed by a companion, Mary Patrick. She and Mr. Steen exchanged some remarks. Mr. Brown took the gun, chased Mr. LaHood and shot him dead. Ms. Patrick later characterized it as a robbery.

Mr. Foster and his companions fled but were soon stopped by the police. Mr. Foster denied participating in the earlier robberies or the shooting, claiming the group had been out looking for clients for his music business.

He was tried together with Mr. Brown, who was also convicted and was executed in July 2006. Mr. Steen and Mr. Dillard, facing charges in other cases, were not tried. But Mr. Steen testified he did not believe that Mr. Foster knew that Mr. LaHood would be robbed, although Mr. Steen said, “I would say I kind of thought it.”

Later Mr. Dillard testified in Mr. Foster’s appeals, claiming that before they reached the LaHood house, Mr. Foster sought to end the night’s spree so he could return the car to his grandfather. Therefore, Mr. Fuller’s lawyer, Mr. Hampton, argued, his client lacked the mindset to be legally culpable for the killing that followed.

Mr. Hampton also contended that Mr. Steen and Mr. Dillard were improperly withheld as crucial witnesses, and that mitigating testimony about Mr. Foster’s upbringing was not presented to the jury.

“I was in jail at the time he got arrested,” said Kenneth Foster Sr., saying that a strategy of portraying his son as churchgoing and well-raised had backfired.

“One of the jurors said he should have known better,” the elder Mr. Foster said. “They never called me. If the mitigating evidence had been put on, he never would be on death row.”

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