On the night of Aug. 14, 1997, Foster, Brown, DeWayne Dillard, and Julius Steen were drinking and smoking marijuana when they decided to use Dillard's gun to commit two armed robberies, according to Foster's attorney, Keith Hampton.Here are the facts as stated by the Fifth Circuit federal Court of Appeals (PDF) as it denies habeas review of the state court proceedings:
As they drove home, LaHood's girlfriend Mary Patrick appeared to flag their car down. According to testimony from Dillard and Steen, the car pulled over and Brown exited the vehicle. There had been no discussion that he would rob or kill LaHood, and he was effectively "acting out of an independent impulse," according to testimony.
After Brown shot LaHood, Foster, who was 19 at the time, became very anxious and started to leave the scene, but Dillard and Steen made him wait for Brown to get back in the car. They drove off, but were arrested shortly thereafter, Hampton said.
Foster, who was tried alongside Brown, rather than given a separate trial, is charged under a Texas "law of parties" statute that disintegrates the distinction between the perpetrator of a crime and an accomplice, allowing Foster to be put to death, even though he did not actually pull the trigger.
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 that argument, and both he and Foster were sentenced to death.
On the evening of 14 August 1996, Foster and three others - Mauriceo Brown, DeWayne Dillard, and Julius Steen - embarked on 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 he rode in the front seat, looking for potential victims, while Foster drove.I agree with those who think that the sentence is too harsh, and, again, I am opposed to the death penalty, but journalists need to report the facts in an accurate and neutral fashion, not from an advocate's position. If I am to believe the Fifth Circuit case, Foster was driving the car that stalked Patrick, something you can't tell from the ABC article, which uses expressions like "As they drove home" and "the car pulled over" to make Foster seem less important than he apparently was. "There had been no discussion that he would rob or kill LaHood," writes ABC. Yes, but Foster joined a man who had displayed a gun and proposed a robbery spree. He drove around with that man sitting by him in the front seat as they looked for victims -- not LaHood, specifically. By the time they got to LaHood, they'd already robbed two groups of people and split the proceeds, and Foster was still driving the car. Tell the facts straight. Don't manipulate us with something that reads like a brief for the condemned man. I want to understand why people saw fit to give him the death penalty. From there, I can still see how one could fairly and persuasively make the argument that he shouldn't die for what he did.
Steen and Brown testified to robbing two different groups at gunpoint that night; 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 Mary Patrick.
Patrick testified: she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster's vehicle turn around and stop in front of Michael LaHood's house; Patrick approached Foster's vehicle 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 LaHood; Michael LaHood 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 LaHood's face, demanding his keys, money, and wallet; Michael LaHood responded that Patrick had the keys; and Patrick heard a loud bang.
Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the night's earlier robbery victims.
Later that day, all four men were arrested; each gave a written statement identifying Brown as the shooter. Brown admitted being the shooter but denied intent to kill. He testified that he approached Michael LaHood to obtain Patrick's telephone number and only drew his weapon when he saw what appeared to be a gun in Michael LaHood's possession 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. The jury found each guilty of that charge and answered the special issues at the penalty phase to impose a death sentence for each.
I picked up this story from Memeorandum. From there, I see that Captain Ed writes:
[S]hould the punishment for the non-shooter be the same as for the shooter?...[Then there is this sort of overblown commentary, which I find offensive and unhelpful.
[W]hat bothers me about the death penalty [is that its] application is inconsistent, and it has the potential for abuse, which this case arguably demonstrates. Even if I supported the death penalty -- which at one point I did -- applying it to a known non-shooter would seem a miscarriage. Texas Governor Rick Perry should think about breaking his streak of non-intervention in this case.
UPDATE: Kenneth Foster's life is spared.