Kenneth Foster Jr. is scheduled to be executed in Texas later this month for the 1997 murder of Michael LaHood, though everybody — even prosecutors — concede that Foster was at the scene of the crime, but did not pull the trigger.
Mauriceo Brown, who admitted to fatally shooting LaHood, was executed last year, but barring an unlikely 11th-hour commutation from Gov. Rick Perry and the Texas Board of Pardons and Parole, Foster will meet the same fate Aug. 30.
On the night of Aug. 14, 1997, Foster, Brown, DeWayne Dillard and Julius Steen were drinking and smoking marijuana. That night, they used Dillard's gun to commit two armed robberies, with Foster serving as driver, and ended up behind a car carrying LaHood and his girlfriend, Mary Patrick, according to testimony in the case.
According to Patrick, the men then began to tail her car so she got out of the car and approached the vehicle to see who they were. The men in the car denied that they had been following her and said that she had flagged down their car. Foster, still behind the wheel, then pulled over beside Patrick.
The men conversed with Patrick, and then Brown got out of the car carrying the gun. Dillard and Steen both testified that there was no discussion that he would rob or kill LaHood and that Brown was acting independently.
Brown and LaHood got into an altercation and Brown shot and killed him. Foster, 19 at the time, became very anxious and started to drive away from the scene, but Dillard and Steen made him wait for Brown to get back in the car. They drove off, but were arrested shortly after, Foster's attorney, Keith Hampton, told ABC News.
Rather than being given a separate trial, Foster was tried alongside Brown. Foster was charged under the Texas "law of parties" statute that eliminates the distinction between the perpetrator of a crime and an accomplice, allowing Foster to be put to death, even though he did not pull the trigger.
Texas is the only state in the country where a person may be executed if a murder he or she did not anticipate or plan occurs during the course of another crime they committed, Foster's lawyer said.
Dillard and Steen both cooperated with the government and were given plea deals, Hampton said. Brown had testified that he acted in self-defense, but the jury didn't buy agree. Both he and Foster were found guilty of murder in the course of a robbery and they were given the death penalty.
Susan Reed, the district attorney of Bexar County, which prosecuted the case, dismissed the possibility that Foster did not know Brown was going to attempt to rob and possibly shoot LaHood. She said Foster was an accomplice in the case, and even though he did not actually pull the trigger is considered guilty of murder under Texas law.
"He was guilty. He was driving that car, he helped set that up, he was reaping the rewards. It was all of them working together on it," Reed said.
Giving Foster the death penalty is technically legally sound, but nonetheless represents a very strict reading of the law, several law professors said. They said the death penalty for Foster represents "extraordinarily severe punitive consequences," with legal precedent normally dictating more lenient consequences.
"These are extraordinarily severe consequences about what was at best, a guess about what was in [Foster's] mind when these things happened," Robert C. Owen, a law professor at the University of Texas-Austin law school said.