Executing this man is bloodlust, not justice

You might have missed the story. After all, the football season is starting, and we had all the excitement of a tax-free weekend.

But Texas is about to execute an innocent man, that is, a man who killed no one, who did not want to kill anyone, who did not help kill anyone.

On these points, there is unanimous agreement between all the parties involved. How could this happen in Texas?

Kenneth Foster is scheduled to be put to death by lethal injection Thursday for a murder committed by Mauriceo Brown, a friend of Foster who was executed for murder last year.

The incident in question is the murder of Michael LaHood. In an altercation, Brown pulled a gun and shot LaHood. Brown testified that LaHood had drawn a gun on him first. Whatever happened, it is undisputed that Foster sat in the car 80 feet away from the shooting. There is no evidence that Foster had felonious intent. When he heard the shot, he started to drive off before Brown got back in the car, a fact kept from the jury.

Part of what got Foster charged with capital murder is a legal concept known as "the law of parties." In Texas, a person is responsible for the criminal conduct of another if he intentionally assists the other in committing a crime. If a second crime is committed, and it can be anticipated, he can be held criminally responsible for that crime, as well.

Problematic law

Nearly thirty years ago, I was appointed to represent a capital murder defendant in Brazos County where the "law of parties" was involved. In that case, my client agreed with another person to do physical harm to the victim and the victim died as a result. Even though there was no direct evidence that my client intended the death of the victim, his conduct fit clearly within the "law of parties."

This is not the case with Kenneth Foster. Foster was merely present in the vicinity of the murder, not a participant in it in any way except that he was driving the car in which the killer, Brown, left the scene.

It should surprise no one who keeps up with such cases that Foster is a black man accused of killing a white man, a factor in many capital murder cases. Michael LaHood was the son of a well-known attorney in San Antonio. The LaHood family, through the media, made it known it wanted the guilty parties executed. The prosecuting attorney withheld evidence that would have supported Brown's testimony that LaHood was armed and that Brown shot him in self-defense. Foster was tried with Brown, a decision by the judge and prosecutor that prejudiced Foster's chance to receive a fair trial. Foster's court-appointed attorney made no inquiries into Foster's background. Had he done so, he would have found many factors that would have mitigated against sentencing him to death by lethal injection.

Proponents of capital punishment argue that we need this punishment for those who are the worst of the worse; for those who commit murder under the most cold and heinous circumstances; for the irretrievably lost among us. None of these conditions comes close to describing Kenneth Foster.

This case is not about revenge against Kenneth Foster because Foster didn't kill Michael LaHood, nor did he even want to kill him. It is about blood lust. Whether the proponents of capital punishment take refuge in Scripture or their general outrage at crime, their hands will be covered with the blood of Kenneth Foster if this travesty of justice is not stopped.

-- Lamar Hankins is a San Marcos attorney.