Photo: Matthew Owusu-Afriyie
ISO Demonstration for Kenneth Foster August 27
Last-Ditch Campaign to Save Death Row Inmate in Texas
by MARK GABRISH CONLAN
Copyright © 2007 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
Barring a last-ditch intervention by Texas governor Rick Perry — hand-picked successor to George W. Bush who, like his predecessor, has openly mocked previous death row convicts who appealed to him for clemency — Kenneth Foster will be put to death by lethal injection just after midnight on August 30, 2007. As part of an international campaign to forestall Foster’s execution, the San Diego chapter of the International Socialist Organization (ISO) is holding a demonstration Monday, August 27, 5 p.m. on Broadway outside Horton Plaza downtown to build public awareness on the case and put pressure on the governor to do the right thing.
Members of the ISO and others heard a presentation on the Foster case at the group’s regular meeting August 16 at the City Heights Recreation Center. The featured speaker, activist Matthew Owusu-Afriyie, explained that Foster had not been directly involved in anybody’s murder but had been convicted because of the so-called “Law of Parties” — because he had been driving himself and three other young African-American men around Houston on August 14, 1996, and one of the other men, Maurecio Brown, had shot and killed the victim in the case, Michael LaHood.
“On August 14, 1996, four people drove around and committed two armed robberies,” Owusu-Afriye explained. “In the early hours of August 15, they drove to LaHood’s home just as he and a female companion returned home.” According to Owusu-Afriye, Foster said that Brown had “jumped out of the car” and confronted LaHood and his girlfriend, Mary Patrick, ultimately shooting him.
“Foster will admit that he was not only in the wrong place at the wrong time, but he made a mistake in letting Brown get in his car in the first place,” Owusu-Afriye said. “These are crimes one can go to prison for, but Foster is facing execution for a crime” — murder -— “he didn’t commit. The courts are saying Foster is guilty because he didn’t anticipate that his friend had a gun and was going to commit murder. A man shouldn’t be sent to prison, much less murdered, for a crime he had no part of.”
Information on Foster’s Web site, http://www.freekenneth.com/, argues that Foster was convicted and sentenced to die for a variety of reasons: the prosecution’s insistence that he be given a joint trial with Brown, LaHood’s actual killer (who was also sentenced to death, and was executed on July 19, 2006); the inability of his defense team to interview key witnesses before trial — including the other two men in the car, Julius Steen and Dwayne Dillard — a strategic miscalculation on the part of his first attorney and, most important, a gross misinterpretation of the “Law of Parties” as it should apply to a capital case. “Mere status as a party is not a crime,” the site explains.
The United States Supreme Court has issued two somewhat contradictory rulings on the circumstances under which someone present at a murder but not directly involved in killing the person can be held liable and sentenced to death. In 1982, in Edmund v. Florida, the court “held that imposition of the death penalty on a person who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill or intend to kill violates the 8th and 14th Amendments of the U.S. Constitution.” Five years later, in Tison v. Arizona, the court made an exception and allowed the execution of people who weren’t directly involved in murder but “have major personal involvement in the felony and display a reckless indifference to human life.”
In order not only to convict Foster but make him eligible for a death sentence, Texas prosecutors had to convince the jury that all four men in Foster’s car that August night were engaged in a continuous conspiracy to commit robbery that started when Brown, Steen and Dillard got in Foster’s car and ended with the murder of LaHood. As Foster’s attorney, Keith S. Hampton, explained in his final habeas corpus petition for federal review, “Maurecio Brown murdered Michael LaHood during a robbery. Mr. Foster was not a party to Mr. Brown’s murder of Mr. LaHood, but was found to be a party to a robbery conspiracy, and pursuant to Section 7.02(b) of the Penal Code, liable for negligently failing to anticipate Brown’s crime. Without proof of a robbery conspiracy, Foster would not be liable for Brown’s murder of Mr. LaHood.”
According to Hampton, the crucial witness against Foster who provided that “proof” was Julius Steen, himself a member of the so-called “conspiracy.” Though Foster’s original attorneys were able to cross-examine Steen when he testified at Foster’s and Brown’s trial, they were not permitted to meet with him and interview him before the trial. “Counsel for Kenneth Foster had repeatedly sought to interview Steen concerning the murder of Michael LaHood before trial and after he filed his initial writ application,” Hampton explained. “Steen’s counsel at that time refused his request to speak with him while Foster’s state writ application was pending. … Steen has therefore been unavailable as a witness.”
Hampton cited a subsequent affidavit from Steen backing away from this interpretation of his trial testimony. “There was no agreement that I am aware of for Brown to commit a robbery at the LaHood residence,” Steen said in his affidavit, dated January 2, 2003. “I do not believe that Foster and Brown ever agreed to commit a robbery. In my opinion, I don’t think that Foster thought that Brown was going to commit a robbery.” In a footnote, Hampton stressed that Steen was not a so-called “recanting witness,” but that his affidavit merely “clarified his statements to confirm or dispel the inferences made from his testimony” — a distinction Hampton vainly hoped would allow him to get Steen’s “clarifying” affidavit admitted as evidence that Foster should be given a new trial.
Foster’s Web site and Hampton’s petition cite other grounds for challenging the Foster conviction and death sentence. “The prosecution successfully argued that because Foster was the getaway driver in previous robberies earlier in the evening, they must have been committing a robbery at the LaHood residence,” Hampton wrote. “This argument invited the jury to make the very rationale long condemned in criminal law, namely the propensity rationale wherein one is presumed to have committed a crime because he has committed other crimes in the past.”
Not only was Foster given a joint trial with LaHood’s actual killer, the jury in his case was never told by the judge that they could find him guilty of robbery but innocent of murder. What’s more, the prosecution successfully argued that Foster, an aspiring hip-hop performer who was 19 at the time of the incident, had shown a propensity for violent crime by writing and recording a gangsta-rap song. According to Foster’s Web site, he recorded the song but didn’t write it and therefore shouldn’t have been held responsible for its contents — even if it were just to convict somebody of a crime on the basis of his artistic description of similar criminal behavior, which it is not.
Finally, Foster’s Web site suggests that a bad choice of strategy on the part of his original attorney may have led to his death sentence. “Kenneth was raised on the streets in a world of drugs, prostitution and theft,” his Web site states. “His parents were both drug addicts. His mother eventually died of AIDS when he was aged seventeen. As a child he was neglected, passed from one drug-addicted parent to the other when the other one was in prison, used as a decoy in their crimes, and he ran around unclothed because his parents sold his clothes to buy drugs.”
Had Foster’s jury heard that, his advocates argue, they might have well taken pity on him and recommended a sentence of imprisonment instead of death. Instead, Foster’s attorney chose to focus on what happened to Foster after his mother’s death. “Since adolescence, Kenneth lived with his grandparents who helped him to graduate from high school,” the site explains. “Given Kenneth’s minimal involvement in the crime and his extraordinarily mercy-evoking childhood and upbringing, this mitigating evidence, if presented to the jury, would undoubtedly have persuaded them that a life sentence would have been much more appropriate. Instead, his jury learned only that he was brought up in the church by his grandparents, and they had the impression that he was actually a privileged child.”
According to Foster’s Web site, “his trial counsel thought a presentation of Foster as a nice kid who might go to college was the most reasonable strategy for avoiding a death sentence.” Instead, if anything it seemed to have encouraged the jury to regard Foster as a dastardly young man who had thrown away his advantages and committed a fearsome crime. “Foster’s trial lawyers never investigated his background enough to discover the truth of his world,” the site explains. “How lawyers can base a decision not to investigate the background of their client when the client’s life is at stake is a rationale not fathomed by Foster’s present counsel.”
During his 11 years on death row, Foster has continued the studies in sociology he had begun before his conviction, and also become an activist for the rights of prisoners. With four other Texas death row inmates, Reginald Blanton, Rob Will, Gabriel Gonzalez and Da’mon Simpson, he founded Death Row Inner-communalist Vanguard Engagement (D.R.I.V.E.), described in its flyer, visible at http://www.freekenneth.com/drive%20flyer.bmp, as “a consolidated group of strugglers standing up to the ‘Texas Killing Machine’ in a fervent non-violent but progressive action.” They’ve lobbied for improved conditions on the Texas death row and also called for an end to the death penalty itself.
“D.R.I.V.E. is not seeking a violent process (in action or response),” Foster’s Web site explains. “However, through experiences, the totalitarian system has sought to meet D.R.I.V.E.’s protests for Humanitarian change with violence: extensive use of force squads with gassings, and denials of meals, showers, clothing and grievances are among a long list of tactics used to divide and conquer them; a tactic that failed miserably to achieve its goals. Regardless of all this harsh oppression, the D.R.I.V.E. comrades never wavered as they truly believe in the need for the change. Truly believing in the Cause, they are willing to suffer for their beliefs and the greater good of all.
The site claims that since D.R.I.V.E.’s organizers were returned to the cells in the Polunsky Unit at Livingston, Texas in 2000, “the work program has been discontinued, the group recreations abolished, TVs, arts and crafts not allowed. The building itself is left to decay (e.g. unsanitary conditions, foundation cracking in the cells). These were meant to be temporary measures but they have lasted for six and a half years without a hint of an end in sight. Their environment has been designed to torture, provoke and degrade into a deplorable state (mentally, physically and spiritually). Therefore, D.R.I.V.E. step forward to say, ‘Enough!’”
“By a designed scheming effort, the United States and especially the State of Texas has mastered the art of murdering its citizens,” Foster himself says in a statement on his Web site. “The resource centers have been shut down, appeal processes shortened and access to courts have been severely curtailed. The judicial and political regimes have lost all semblance of justice and sound reasoning. An assembly line of death has been created in the cheering presence of the public. If at all possible, their goal is to murder each and every one of us! Some appear willing to lay down and be murdered without a fight. I hear many talk about their appeals and the ‘good error’ that is going to save them. Now if the government will allow an innocent man to be executed, what makes you think they will not kill a guilty person with a good error?”
Save Kenneth Foster: http://www.freekenneth.com
