Board recommends condemned man be spared

AUSTIN -- The Texas Board of Pardons and Paroles recommended this morning that Gov. Rick Perry commute death row inmate Kenneth Foster’s sentence to life – leaving the governor just 7 hours to determine Mr. Foster’s fate.

“I’m trying to get him to make the decision just as fast as possible,” Keith Hampton, Mr. Foster’s attorney, said from the governor’s office. “I’m meeting with attorneys here to tell them the ups and downs and find out where they’re at.”

The execution by lethal injection is scheduled for 6 p.m. The governor’s office had no immediate comment the board’s vote. Mr. Perry does not have to follow the board’s recommendation, and he has rarely intervened in death penalty cases as governor.

Mr. Foster was the getaway driver in a 1996 armed robbery spree that ended in the murder of a 25-year-old San Antonio man. He contends he had no knowledge a murder was going to occur, and he was not the trigger man. But he was convicted under the state’s “law of parties,” which authorizes capital punishment for accomplices who either intended to kill or "should have anticipated" a murder.

Mr. Foster is one of an estimated 80 Texas death row inmates convicted under the law; about 20 have already 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 all those responsible for heinous crimes must be held accountable.

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 Michael LaHood in what jurors determined was a botched robbery.

The men in the car, including Mr. Foster, have testified that they thought they were done 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 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 like, I guess, 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 on 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 said in a sworn statement that he didn't understand Mr. Brown's intent was to rob the victim 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.

In recent weeks, Mr. Foster’s case has brought waves of attention, from rallies across the state to public statements from former President Jimmy Carter, South African Archbishop Desmond Tutu and actress Susan Sarandon.

The Texas Court of Criminal Appeals, the state's highest criminal court, upheld Mr. Foster's sentence for a final time this month. If Mr. Foster is executed, it will be the third in Texas this week, and the 24th this year.

Source : DallasNews.com