the defense's version of events and juror misconduct


The defense’s version of events was that there was no intent to rob LaHood or Patrick.  Rather, Brown approached Patrick on an independent impulse, to ask for her phone number, and that Brown shot LaHood in self-defense after LaHood pulled a gun.  The defense was prevented from supporting a jury finding that Brown was telling the truth about LaHood being in possession of a gun because the State withheld material exculpatory evidence that would have supported this theory.

 


Brown testified that there was no plan to rob LaHood.  His testimony was:


Q: Did anybody in the car agree with you to help rob Mr. LaHood, Jr.?
A: No, sir.
Q: Was this, in fact, a robbery?
A: No, sir.
Q: And it was not as if you had discussed this with anybody else, correct?
A: Correct.
Q: And it was not your intention to, when you first approached Mr. LaHood or the lady in the black miniskirt, to rob anyone?
A: Correct.
Q: Or to shoot anyone?
A: Correct.

 

Dillard solidified this testimony in the Habeas hearing when he testified that there was no agreement or plan to rob anyone at the LaHood residence or for Brown to shoot LaHood or anyone else.  No one in the car, including Kenneth, directed Brown to rob anyone at the LaHood residence.  No one, including Kenneth, encouraged Brown to commit a robbery, nor helped or attempted to help Brown commit a robbery or shoot LaHood.  Dillard testified that Kenneth was surprised and panicked by what Brown did and when he heard the shot he was about to drive off, but he told him to stop.  While this is very potent evidence that Kenneth is not guilty of capital murder, nor any crime against LaHood, because he did not direct, encourage or aid Brown or conspire to commit a robbery, one juror stated that he convicted Kenneth because “he did not hit the gas and get out of there,” and because “he let Brown back in the car.”  While these are good moral points, they have nothing to do with the Law and the standards it takes to convict a person of capital murder by the Law of Parties.  An agreement must be made and through Brown’s own testimony and Dillard’s, Brown acted on his own independent impulse which Kenneth could not have reasonably anticipated, thus the fact that Brown entered the car was not enough evidence to bind Kenneth to his charge and he should have been acquitted.


Another juror stated that he would have given a different verdict if he had known Kenneth did not anticipate that Brown would take the gun when he got out of the car, did not anticipate Brown would shoot LaHood, or that Kenneth tried to drive away when he heard the shot.  These facts were utterly important to Kenneth, still are and he should be given a fair trial to present all these facts that would have inevitably led to his acquittal in his first capital murder trial.

 

Kenneth and Brown never had a chance of receiving justice when a general atmosphere of fear pervaded the courtroom, corrupting the jury.  Some of the jurors were afraid of the African-Americans present in the courtroom, some of whom they perceived to be gang-member supporters of the defendants.  The jury was sufficiently scared to request an escort to and from the courtroom.  The victim’s family had seats reserved for them in the front row, directly in front of the jury, in clear violation of Kenneth’s right to a public trial.  Other people who tried to sit in those seats were removed by court personnel who said they acted under order from the trial judge.

 

Jurors interviewed since the trial have made statements demonstrating that they clearly misunderstood the instructions and the law that the judge provided to them and engaged in misconduct in convicting Kenneth on a basis not provided in the court’s instructions.  Some jurors have admitted that they convicted Kenneth of capital murder because he was “guilty by association.”  Some jurors thought that Kenneth was a violent gang member who would be a danger in the future owing to their mistaken belief, created by the State, that some very violent lyrics from a “gangster” rap song were written and performed by him.  The jury convicted Kenneth partly on the basis of this alleged gang membership.


It is not even clear, however, under which state theory of liability that the jury convicted Kenneth.  The jury simply stated that Foster was guilty “as charged in the indictment.”  The indictment does not charge Kenneth as a party to robbery or a murder, but as the actual shooter of the victim, which the evidence at trial clearly did not prove.  The evidence at trial did not demonstrate any involvement by Kenneth in the shooting that night.  The jury should have found him innocent under the instructions they were provided.  Instead, the jury decided to impose its own form of justice by deciding Kenneth must have been guilty because he was there with the person who fired the fatal shot and allowed him to get back in the car after firing the gun.
Kenneth’s “involvement” that night – driving around a car out of which someone stepped, and on an independent impulse, shot somebody over 80 feet away from Kenneth – was certainly foolish, but foolishness does not translate into guilt of capital murder on the evidence presented by the State in this case, or into the need for a death sentence.

the missing evidence


No gun was found on the victim’s body when the police arrived.  The family had been with the victim’s body for several minutes before they even called the police, and the first law enforcement agents did not arrive at the house until almost 15 minutes after the shooting.  Brown described the gun he saw on the victim’s person as a 9mm.  After the trial, Kenneth’s investigation of the case unearthed records within the exclusive possession of the State that prove the victim owned guns. 

A similar gun to the one described by Brown, with a shoulder holster used to conceal the weapon on his person, was described in the police records.  Moreover, complaint reports filed by the victim and his father itemize many guns stolen from them in various burglaries.  This information would have allowed the defense to make a stronger case for self-defense and would have provided greater credibility to Brown’s testimony.  These records could also have been used to impeach the victim’s family members who claimed that LaHood did not carry a gun and lent credence to the State’s theory that he was not armed that night. 

This evidence was extremely important to the defense as proof of self-defense, and as impeachment material, but it was denied to the jury due to the prosecution not disclosing it to the Kenneth’s trial counsel.  Jurors have admitted that if the evidence had been presented it would have made a difference in their deliberation of guilt/innocence.



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