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The Disturbing Case of Kenneth Foster
Kenneth Foster is a native of San Antonio, Texas. He has been on death row since 1997, sentenced to death for the 1996 murder of Michael LaHood, Jr. Kenneth did not shoot LaHood. This is not an innocence claim made solely by his supporters. The state of Texas will be the first to admit that Kenneth is factually innocent of murder. How is he still on death row? Texas's Law of Parties, the only legislation of its kind in a death penalty state, holds individuals criminally responsible for the offense of another if the prosecution can prove they actively promoted or assisted the commission of the offense or should have anticipated that it would have taken place.
On August 14, 1996, Kenneth Foster was driving a car carrying Mauriceo Brown, Dewayne Dillard, and Julius Steen. That night, Brown and Steen committed two armed robberies, at which point Kenneth asked Dillard to persuade them to stop. On the way home, Foster ended up behind a car carrying Michael LaHood, Jr. and his girlfriend, Mary Patrick. Concerned that Foster was deliberately following them, Patrick waved the car down in front of the LaHood residence. Brown exited the car, presumably to talk to Patrick and get her phone number. Dillard testified that no one anticipated violence, and that Brown took the gun without permission or knowledge of the other men. When Brown approached the woman, her boyfriend Michael LaHood appeared in the driveway. Brown and LaHood exchanged words, a shot was fired, and Michael LaHood lay dead. All of this transpired while the other three men remained in the car, 80 feet away from the scene of the crime, with the windows rolled up and radio turned on. After hearing the gunshots, Kenneth began to drive away, but Brown managed to get back in the car.
All of the above is well-corroborated by all four of the men on that evening. Brown admitted to shooting LaHood but insisted it was in self defense. However, the state tried Kenneth and Mauriceo together for capital murder, basing Kenneth's charges on the Law of Parties. They claimed that because two robberies had already taken place that night, he should have anticipated that Brown might have tried to rob LaHood and Patrick. Because he should have anticipated a robbery could have taken place, he also should have known a murder could possibly take place. This shaky logic, along with testimony from Steen (who later retracted part of his testimony), was enough to sentence both Brown (who was executed in 2006) and Kenneth to death.
The Law of Parties was adopted in 1974. It states that a person is equally responsible for the criminal conduct of another if "acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids or attempts to aid the other persons to commit the offense" or "If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy." The U.S. Supreme Court has indeed ruled on laws of this nature, drawing the conclusion that you cite above in the 1982 Enmund v. Florida decision. However the court has not heard any cases from Texas related to this issue. The only other case related to policies such as the Law of Parties is the 1987 Tison v. Arizona decision in which the Justices upheld the death sentences of two brothers who aided their father in a deadly prison escape. The decision stated that ""knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state." They added that "We will not attempt to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty. ... Rather, we simply hold that major participation in the felony ... combined with reckless indifference to human life is sufficient to satisfy the Enmund culpability requirement." Thus, the legal precedent on policies like the Law of Parties remains highly ambiguous.
There is very little basis for believing that Kenneth had any malicious intent toward Michael LaHood, Jr. Yes, he was driving the car that night and robberies took place. However, there is every reason to believe that Kenneth had no idea LaHood's life was in danger. There was also no conspiracy to rob him. He did not even know the gun had left the car. His jury, moreover, was only instructed to determine if he was associated with Brown and should have anticipated his actions. As Judge Furgeson pointed out in 2005, these instructions are not consistent with the intent of the Law of Parties. Kenneth is effectively facing an execution date for a failure of hindsight. As Kenneth's criminal lawyer, Keith Hampton, wrote in his federal appeal, "By employing the conspiracy liability statute, the state is able to make persons death-eligible on nothing greater than a negligence standard that the defendant 'should have anticipated' that his conspirator would, in the course of any planned felony, intentionally kill another person." He added, "negligence is the least culpable mental state known to criminal law."