Aug. 14, 2007— -- 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.
"This is a type of case that rarely, if ever, ends up with a death sentence imposed," said John H. Blume, a law professor, and director of Cornell University's Death Penalty Project. "I am willing to bet you there are hundreds of people in prison doing life or substantially less time, who, what they did is as bad if not worse than what Foster did."
The legal dispute in the case centers on what Foster knew was going to happen when Brown exited the vehicle, according to legal experts. Under the precedent set in Tyson v. Arizona, U.S. law states that a person may be executed for a crime they did not commit if they were a "major participant" or acted with "reckless indifference to the value of human life."
Hampton said he has exhausted virtually all legal recourse, including an appeal to the U.S. Supreme Court, and that his last best hope relies on a recommendation of commutation from the Texas Board of Pardons and Paroles to Perry.
Is he hopeful? Given Texas' track record with executions, "No, I am not," Hampton said. "The odds are extremely low."
In fact, the Board of Paroles has only recommended that a sentence be commuted twice in its history. In 1998, a recommendation was approved by then-Gov. George W. Bush in the high-profile case of Henry Lee Lucas. And, in 2004, they recommended the execution of paranoid schizophrenic Kelsey Patterson be commuted to life in prison, but Perry refused to grant the commutation.
Katherine Cesinger, a spokeswoman for Perry, said the governor considers each execution on a case-by-case basis. She said Texans overwhelmingly support the death penalty, and that Perry, in his suppot for it, is "carrying out the will of the people."
Jackie Deynolles, the acting chair of the 7-person pardons and parole committee that will review Foster's case, would not comment, other than to say that the board has received Hampton's petition and will issue a decision on Aug. 28.
Five of the 7 board members must recommend the commutation for it to be put to the governor, Hampton said.
Since assuming office in December 2000, Perry has presided over 159 executions thus far, the most of any governor in history, according to Rick Halperin, the president of the Texas Coalition to Abolish the Death Penalty. That breaks the record of 152 set by Bush in his approximately six years in office.
More executions occur in Texas than in any other state. Last year, 24 of America's 54 executions were carried out there, according to the U.S. Department of Justice. So far this year, 19 executions have taken place in Texas, and another 11 are scheduled, according to the Texas Department of Criminal Justice.
Foster's case took a long, legal course to its position today. After the Texas Court of Criminal Appeals upheld a state district judge's verdict of the death penalty, a federal district court reversed the ruling, saying Foster was ineligible for death row.
The case then went to the 5th Circuit Court of Appeals in New Orleans, which found the Texas court had ruled based on "flawed legal theory," but, nonetheless, reinstated the death sentence on grounds that there was evidence Foster acted with "reckless indifference to human life," especially given the two armed robberies he participated in on the night of the murder.
The Bexar County district attorney's office is prosecuting the case, but the district attorney, first assistant district attorney, and the prosecuting attorney were all unavailable for comment Monday.
A small grassroots movement is trying to free Foster. One of the leaders of the movement is Tasha Foster, who married Foster only three months ago. They fell in love while exchanging letters three years ago.
They have never actually touched each other, and since they could not be together for their marriage, it took place over a local radio station, so that Foster could listen in to the ceremony from behind bars.
Tasha, a rapper who lives in the Netherlands, and goes by the stage name Jav'lin, told ABCNews.com that the daunting prospect of marrying a man about to be executed did not scare her away.
"Of course I was wary about it — I mean, he is on death row," she said. "But what I found in him was something ... rare, the honesty, the ambition, the being able to smile in a place such as death row, to stay positive and not let the surroundings kill your spirit," she said."
Foster also has an 11-year-old daughter who lives with her mother, Nicole Johnson.