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Kenneth E. FOSTER Jr.






Classification: Murderer
Characteristics: Robbery - Convicted under a law of parties, not for physically committing the crime
Number of victims: 1
Date of murder: August 15, 1996
Date of birth: October 22, 1976
Victim profile: Michael T. LaHood, Jr., 25
Method of murder: Shooting
Location: Bexar County, Texas, USA
Status: Sentenced to death on July 1, 1997. Commuted to life in prison on August 30, 2007

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Kenneth Foster, Jr. (born October 22, 1976) is a prisoner formerly on death row in Texas, convicted under the law of parties. He was convicted of murdering Michael LaHood in August 1996. His conviction and execution were contested because he was convicted under a law of parties, not for physically committing the crime.

Texas Governor Rick Perry commuted the death sentence to life imprisonment only three hours before the execution was scheduled to take place on August 30, 2007. Kenneth Foster, Jr. will be eligible for parole in 2037. He is currently located at the Byrd Unit of the Texas Department of Criminal Justice to be reprocessed as a general population prisoner.


Kenneth Foster

On the evening of 14 August 1996, Kenneth Foster, Mauriceo Brown, DeWayne Dillard, and Julius Steen embarked on a series of armed robberies around San Antonio, Texas, beginning with Brown’s announcing he had a gun and asking whether the others wanted to rob people: “I have the strap, do you all want to jack?”

During the guilt/innocence phase of Foster’s trial, Steen testified that he rode in the front seat, looking for potential victims, while Foster drove. Steen and Brown both testified to robbing two different groups at gunpoint; the four men divided the stolen property equally.

The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by a young woman named Mary.

At trial, Mary testified that she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster’s vehicle turn around at the end of the street and stop in front of Michael LaHood’s house; Mary approached Foster’s car to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster’s vehicle and approach her and Michael; Michael told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael’s face, demanding his keys, money, and wallet; Michael responded that Mary had the keys; and Mary heard a loud bang.

Michael LaHood died from a gunshot wound to the face. The barrel of the gun was no more than six inches from Michael’s head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the nights’ earlier robbery victims.

Later that day, all four men were arrested; each gave a written statement to police identifying Brown as the shooter. In admitting being the shooter, Brown denied intent to kill. At trial, he testified that he approached Michael LaHood to obtain Mary’s telephone number and only drew his weapon when he saw what appeared to be a gun on Michael LaHood and heard what sounded to him like the click of an automatic weapon.

In May 1997, Foster and Brown were tried jointly for capital murder committed in the course of a robbery and they both were sentenced to death.


With two brothers of his victim watching nearby through a window, Mauriceo Brown was executed in July of 2006. Brown spoke to the victim witnesses and told them he was "sorry you lost a brother, a loved one and friend." Brown looked toward another window where his mother and two siblings were among the witnesses. He told them he loved them. "Keep your heads up and know that I will be in a better place," he said. He then looked again toward his victim's relatives and friends and apologized a second time that you "lost a loved one this way. God bless you all."

Jack McGinnis, one of the prosecutors in the cases against Brown and Foster, said, "They were out pretty much on a rampage, stoned to the bone, victimizing people." "It is painful for us," said Norma LaHood, Michael's mother. "Our wounds will never heal. You don't heal from the loss of a child."


Perry commutes Texas death row inmate Foster's sentence

Sentence commuted to life for driver in '96 murder

By Emily Ramshaw / The Dallas Morning News

Friday, August 31, 2007

AUSTIN – Gov. Rick Perry blocked the execution of death row inmate Kenneth Foster and reduced his sentence to life in prison Thursday after weeks of statewide protest and controversy over the law used to convict him.

The unusual intervention came just after the Texas Board of Pardons and Paroles voted, 6-1, to recommend that the sentence be commuted, which is also rare. It's the first time in nearly seven years in office that Mr. Perry has stopped an execution, other than in response to Supreme Court rulings that barred the execution of juveniles and the mentally retarded.

Mr. Foster, the getaway driver in a 1996 armed robbery spree that ended in the murder of a 25-year-old San Antonio man, was scheduled to die Thursday evening. He was not the trigger man in the killing and contends he didn't know it was going to happen. But he was convicted, in the same courtroom and at the same time as the shooter, under the state's "law of parties," which authorizes capital punishment for accomplices who either intended to kill or "should have anticipated" a murder.

That law has drawn international protests, but Mr. Perry indicated he was more concerned about the simultaneous trials.

"It is an issue I think the Legislature should examine," the governor said in a written statement.

Mr. Foster, 30, will be eligible for parole in 30 years.

Mr. Foster's family and supporters, gathered in Huntsville for the possible execution, were jubilant.

"We're all a little numb – it's almost disbelief," said Dana Cloud, a spokeswoman for the Save Kenneth Foster campaign. "It is a historic turning point for Kenneth. But it's also a historic turning point in Texas, and indeed, with regard to death penalty in general."

But the news was heartbreaking to Nico LaHood, who found his older brother, Michael LaHood, shot through the eye in their driveway on that summer night in 1996.

"It's not justice," he said. "I don't think an independent jury's verdict should be questioned."

Officials at the Bexar County district attorney's office, which prosecuted the case against Mr. Foster, did not comment on the commutation. But in an interview last week, First Assistant District Attorney Cliff Herberg said Mr. Foster is as guilty as if he fired the gun himself.

The Foster decision was the governor's highest-profile death sentence ruling since 2004, when he rejected a 5-1 recommendation of clemency for Kelsey Patterson, an inmate with a long history of mental illness. Mr. Perry has been a staunch advocate of Texas' death penalty, in the face of international mockery and pressure to curb executions at the country's busiest death row. Texas has executed more than 400 people since resuming capital punishment in 1982.

Joint-trial issue

House Corrections Committee Chairman Jerry Madden said he expects "a lot of hearings, a lot of information provided" for lawmakers on the joint-trial issue when they next meet in 2009. But the law of parties, he said, is probably here to stay.

"That's been in effect for a long time," said Mr. Madden, R-Richardson.

Sen. Rodney Ellis, a Houston Democrat who has actively pushed for death penalty reform, said he may try to pass legislation on both issues.

"Someone facing the possibility of the death penalty at the very least deserves their own fair and separate trial," Mr. Ellis said.

About 80 Texas death row inmates were convicted under the law of parties, and about 20 of those have been put to death. Most states have such laws for many types of crimes, but Texas is the only state to apply it broadly to capital cases. While death penalty opponents decry its use, prosecutors argue that all those responsible for heinous crimes must be held accountable.

Given the amount of attention paid to the law of parties throughout Mr. Foster's appeals, "it's hard to imagine this not sparking more conversation," said Rob Owen, a law professor and co-director of the Capital Punishment Clinic at the University of Texas. Mr. Owen said he believes the problem is not with the law itself, but with how Texas carries it over into sentencing.

Mr. Foster acknowledges he was up for getting high and robbing a few people on that night 11 years ago. But he was in a car with two other men nearly 90 feet away when one of his partners shot and killed Mr. LaHood in what jurors determined was a botched robbery.

The men in the car, including Mr. Foster, have testified that they thought they were finished robbing for the night and that there was no plan to stick up – and certainly not to murder – Mr. LaHood. The shooter, Mauriceo Brown, was executed last year.

Mr. Foster's attorney has said he believes his client's fate was sealed during his joint trial with Mr. Brown, when one of his robbing partners testified that "it was kind of ... understood what was probably fixing to go down" when Mr. Brown got out of the car.

It was enough for jurors – and later, the appeals court – to support a capital murder charge for Mr. Foster on the basis of conspiracy. They believed Mr. Foster, as the getaway driver in two previous robberies, either knew what was about to occur or should have anticipated it.

But Mr. Foster's attorney never got the chance to cross-examine the two other partners, who both received life sentences. One has since given a sworn statement to Mr. Foster's attorney saying he didn't understand that Mr. Brown's intent was to rob Mr. LaHood until Mr. Brown had already made his way up the driveway. The other has testified that Mr. Foster asked the men all night to quit and worried about returning the car to his grandfather.

The Texas Court of Criminal Appeals, the state's highest criminal court, upheld Mr. Foster's sentence for a final time this month. The governor, as the last line of defense in Texas death row cases, has the authority to reduce a death sentence to a life sentence with the written recommendation of a majority of members of the Board of Pardons and Paroles. The seven-member panel did not give a reason for its recommendation.

Resigned to his fate

In an interview on death row in Livingston last week, Mr. Foster appeared calm and resigned to his fate – but vowed he wouldn't be an "active participant" in his execution. He had stopped eating in protest, he said, and was distracting himself with books, letters and silent prayers that Mr. Perry would take his case seriously.

"I know a lot of eyes are on me right now," Mr. Foster said. "I just feel like I'm in a plane, and the engines went out, and all I've got is a parachute that won't open."

At a rally outside the Governor's Mansion on Thursday night, Keith Hampton, Mr. Foster's attorney, said his client has a long road ahead of him and that he's not confident he'll ever be paroled. But he said he expects Mr. Foster to be moved to more comfortable confines promptly – perhaps somewhere he can earn a college degree.

"People should not underestimate the hardship of a life in prison," said Mr. Hampton, who spent much of this week "a total basket case."

"He will find a way to contribute," he said, "to the prison world and the free world."


Don't execute Kenneth E. Foster!

To:  Rick Perry, Governor of Texas; the Texas Board of Pardons and Paroles

We are turning to you because we are deeply concerned about Mr. Kenneth E. Foster, a death row inmate at Polunsky Unit in Livingston, who has an execution date on August 30, 2007.

We feel deep sympathy for the family of victim Michael LaHood. Their loss is tremendous. However we do not believe that taking the life of Kenneth Foster will ease the LaHood family’s pain and suffering. Mauriceo Brown, the man who shot Michael LaHood, is dead already. He was executed for this crime last year. The execution of Kenneth Foster - who was convicted after the law of parties - would be an unnecessary act of violence that does not serve justice but only vengeance.

Kenneth Foster grew up in poverty, both his parents were drug addicts and often in jail. When later living with his grand-parents the harm the horrible family background caused on him was irreversible. He went to high school and graduated in 1995, but at the same time surrounded himself with the wrong crowd.

On the night of August 14th, 1996 Kenneth Foster was together with three other young men: Mauriceo Brown, Julius Steen, and Dwayne Dillard. He was driving a car rented by his grandfather. During the night they committed two robberies. According to Dillard, the role of 19-years old Kenneth Foster was “just to drive”. Dillard also testified that Foster had told him that he wanted to stop committing the robberies: “He told me that he wanted to stop and he felt like if he told me that I would tell them and that they would listen to me.”

Foster was driving through a residential area; they stopped as a woman was waving her arms in the air as if to flag them down for assistance. As Foster began to pull away, Brown got out of the car and grabbed the gun. Dillard testified that Foster could not have seen Brown taking gun because it was dark and Brown and Dillard were in the back seat. Foster, Dillard, and Steen remained in the car. When Brown walked toward the woman, her boyfriend, Michael LaHood, approached from the driveway. Brown inexplicably shot and killed LaHood.

All four men gave the same account regarding Kenneth Foster’s alleged liability for Brown’s murder of LaHood: Brown acted on his own independent impulse, no robbery was contemplated by Foster, and Foster did not anticipate and could not have anticipated Brown’s action.

Not participating in the first robberies, not agreeing to rob Michael LaHood, not knowing why Brown left the car, and not knowing that Brown had the gun, Kenneth Foster can’t be guilty of capital murder after the law of parties. The US Supreme Court ruled in Enmund vs. Florida that it violates the constitution to sentence someone to death who did not himself kill, attempt to kill, or intend to kill. The only exception to this rule is - Tison vs. Arizona - if someone has a major personal involvement in the crime and displays a reckless indifference to human life.

Kenneth Foster took nobody’s life, did not intent to kill nor had a major personal involvement in the murder of Michael LaHood. His wrongdoing confines to driving Brown, Steen and Dillard around while they committed criminal acts. One can reproach Foster with allowing them to use his car and him as a driver, one can reproach him with not stopping the two robberies of that night. However no-one can reproach him for not preventing the murder of Michael LaHood, because he had no idea that Brown planned another robbery, let alone a murder.

If considering the events of this night as a whole and the role Kenneth Foster played within these events, you will come to the conclusion that his execution would be completely disproportionate to his guilt. What we ask you for is to take a deep look into the case of Kenneth Foster and especially in the testimonies of Julius Steen and Dwayne Dillard. We are asking you to grant Mr. Foster a stay of execution and give him a chance for a punishment measured by his liability.




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