Kenneth Foster and his supporters wish to first express their deepest sympathy to the LaHood family and friends for their loss. Kenneth does not take the death of a fellow human being lightly. He regrets this tragedy every day.
Kenneth had no part in the death of Mr. LaHood. He did make the mistake of not driving away from the argument that was taking place between Mr. LaHood and Mr. Brown. For the foolish mistakes of failing to immediately run away from the group of men who were engaged in criminal activity earlier in the evening is an act of poor judgement that Kenneth will live with for the rest of his life.
He is paying far too dear a price for simply being reluctant to object to the conduct of others much earlier in the evening. Kenneth’s supporters strongly believe that Kenneth should not be on death row for failing to drive away when Mr. LaHood and Mr. Brown were arguing when he never once expected a death to occur as a result of a wrong turn on an unfamiliar street and a flirtation between Mr.Brown and Ms. Patrick.
Kenneth Foster is a twenty-six year old, African-American, living on death row in Texas. Each day he lives in hope that the safeguards in the judicial system will remedy the tragedy of his imminent death at the hands of the State of Texas for a crime he did not commit. Kenneth did engage in activities that were foolish and illegal. He did not join in any plan to harm Mr.LaHood. Kenneth had said that he had been wrong to join in the earlier conduct and had said he wanted to go home when he took a wrong turn on an unfamiliar street and ended up driving behind Ms.Patrick. He then made the mistake of not driving away when Mr. brown engaged in an argument with Mr. LaHood and again in failing to refuse to let Mr. Brown back in the car. However, these are not crimes for which he should give his life. He took no part in the death of Mr. LaHood. He did not anticipate that Mr.LaHood would be in any danger when he waited for Mr.Brown. Then he simply agreed to go along with the request of Mr.Dillard to not leave Mr.Brown behind at the crime scene. This is conduct that calls for punishment, but not death.
In light of the subsequent investigation, it is clear that Kenneth’s trial suffered from a number of major defects that rendered his trial unfair and unconstitutional. Kenneth is not guilty of capital murder. Kenneth should never have been charged with capital murder on the basis of the evidence. Kenneth’s conviction resulted from being tried with the admitted shooter, but none of the evidence presented at the joint trial demonstrated that Kenneth was guilty of capital murder or deserved the death penalty, even under Texas law.
The constitutional violations Kenneth suffered at trial go to the heart of his conviction and raise serious questions over his guilt. There are strong reasons to doubt the factual credibility of the prosecution’s case, in addition to compelling facts to support a view that a new jury with the complete picture will not render the same verdict at the guilt/innocence or punishment phase of a retrial. In a Habeas Corpus hearing in 2001 Kenneth presented evidence to demonstrate to the Texas State courts that he must be granted a new trial because he is innocent of capital murder and his joint trial with the admitted shooter was constitutionally deficient and resulted in an unjust verdict and sentence. The District Court found that Kenneth was entitled to a new trial. However, the fifth circuit has now found that Kenneth is not entitled to a new trial. However, the fifth circuit did not receive a clear cut presentation of the claim of innocence in regard to a capital case. The attorney for Kenneth inadvertently omitted this argument in his brief which weakened Kenneth’s case with the court.
Kenneth is guilty of committing two robberies on the night that Michael LaHood was tragically killed. Kenneth sincerely regrets these crimes and has spent the last 10 years expressing his sincere remorse and sympathy for the LaHood family. However, he is not guilty of capital murder, nor should he have been convicted of murder under the Law of Parties.
THE FLAWS IN THE PROSECUTIONS CASE –
The state’s case suffers another destructive blow when Mary Patrick’s situation is dissected carefully. Her testimony was inherently unreliable because she originally identified Dillard as the shooter only minutes after the shooting occurred. Both Mr. Steen and Mr. Brown gave testimony that was consistent with Kenneth’s claim of innocence. The four young men assumed a party was taking place at the house where Ms. Patrick had stopped. Ms. Patrick testified that she talked to Mr. Steen through the passenger window about who they were and asked them what they were looking at. Mr. Brown got out of the car to talk to her and followed her as she walked towards the house.
There are inconsistencies between the evidence Ms. Patrick gave at trial and what she said to a psychiatrist the day after the shooting. Also, Ms. Patrick’s testimony that she heard Mr. Brown ask for Mr. LaHood’s wallet and keys provided the essential element of robbery to convict Kenneth and Mauriceo Brown of capital murder. Under Texas law, Mr. Steen’s testimony as an accomplice witness had to be corroborated because the jury was not permitted to convict solely on the testimony of Mr. Steen, who had made a deal with the State in return for his testimony. Such “snitch” testimony is inherently unreliable in the first place. Ms. Patrick failed to identify Mr. Brown as the shooter and instead picked out Mr. Dillard in a police lineup that night. The jury had no explanation for why she stopped Kenneth’s car.
Presented only with the State’s explanation that the car followed her and stopped independent of her actions, with an intent to commit robbery, the jury had no reason to believe Mr. Brown and Mr. Steen’s testimony that Ms. Patrick had actually approached the car herself. Kenneth’s attorneys were prevented from bringing this fact to the jury’s attention by the trial judge, and the jury rejected the testimony of Mr. Brown and Mr. Steen when Ms. Patrick denied at trial that she had signaled to Kenneth to stop the car.
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?
Q: And it was not your intention to, when you first approached Mr. LaHood or the lady in the black miniskirt, to rob anyone?
Q: Or to shoot anyone?
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.
INJUSTICE AT THE SENTENCING PHASE
Even if the guilt/innocence phase of Kenneth’s trial had been fair, and his conviction had been securely based upon the correct law provided to the jury after sufficient evidence had been presented to warrant a party liability jury instruction, the punishment of life imprisonment, not death, was intended for such a conviction, where the convicted person is not a major participant in a capital murder. There is no doubt that jurors would have taken this option if all the relevant mitigating evidence had been presented to them.
Kenneth was raised on the streets in a world of drugs, prostitution and theft. His parents were both drug addicts. His mother eventually died of AIDS when he was aged seventeen. As a child he was neglected, passed from one drug-addicted parent to the other when the other one was in prison, used as a decoy in their crimes, and he ran around unclothed because his parents sold his clothes to buy drugs. Since adolescence, Kenneth lived with his grandparents who helped him to graduate from high school. Given Kenneth’s minimal involvement in the crime and his extraordinarily mercy-evoking childhood and upbringing, this mitigating evidence, if presented to the jury, would undoubtedly have persuaded them that a life sentence would have been much more appropriate. Instead, his jury learned only that he was brought up in the church by his grandparents, and they had the impression that he was actually a privileged child.
Kenneth’s death sentence is a punishment grossly out of proportion with his moral culpability in the death of the victim in this case. The state proved “future dangerousness” by providing the jury with evidence of Kenneth’s prior criminal record and by painting a false image of him as a gangster with some very violent lyrics that the State told the jury he wrote and performed, which Kenneth did not in fact write. Furthermore, if a risk assessment study based on Kenneth’s background had been conducted at the trial level, the jury would have known that Kenneth was a very low risk to be dangerous in the future.
The US Constitution is supposed to act as a safeguard to prevent people like Kenneth from slipping through the net. In the Edmund-Tison cases the Supreme Court has held that unless a defendant is a major participant in a capital murder, he cannot be put to death. Kenneth must show how he was not a major participant in this alleged murder or alleged robbery. Plain and simple, Kenneth’s role was far less that the role played by the defendant in Edmund v. Florida, supra. Edmund planned and directed an armed robbery, but waited in the car. While Kenneth may have been the so-called “getaway” driver at the previous events, he was in no way involved in Brown’s shooting of LaHood, apart from being present at the scene. Not only does no one present at the crime scene dispute Kenneth’s minimal role, but all three others-including the death-sentenced Brown-confirm that Foster wanted the robberies to end, that he was surprised at Brown’s actions and in fact could not have anticipated that Brown would have grabbed Dillard’s gun when he left the car. Kenneth’s culpability as well as his role was far less than Edmund’s and that of Tison, whose cases set the minimum level of culpability a person at the scene of a murder must have to qualify for the death penalty. Unless these courts will continue to permit Texas to envelope minor actors for unintended killings into its capital murder scheme, in violation of the Edmund-Tison rulings, these courts should grant Kenneth a new trial.
Kenneth did not even receive a “lesser-included offense instruction,” which would have permitted the jury to find him guilty of aggravated robbery if they did not believe he had the intent for capital murder. The jury was forced to convict him of capital murder, or allow him to walk out of the courtroom even if they believed he was guilty of something. The Supreme Court has held that a jury must be given a third option where there is evidence to support a lesser-included offense instruction, as there was here.
Due to the State’s insistence on a joint trial, Kenneth was never given a fair chance to demonstrate his innocence. From the very start he was deprived of his right to a fair trial when he was saddled in a joint trial with Brown. It is clear that the jury did not believe Brown’s story that he fired at the victim in self-defense and that no robbery was planned by anyone in the car, because he was on trial for his life. Unfortunately this testimony’s lack of credibility meant that Kenneth was soiled by Brown’s failed self-defense defense. The jurors themselves admit that this new evidence would have led to a different result. The Supreme Court has held that a trial must be severed when a joint trial would prejudice any defendant or a prior conviction is admissible against any defendant, such as in Kenneth’s case. Kenneth should not have been tried with the actual shooter.
WHAT A NEW TRIAL CAN SHOW
Kenneth has a strong chance of being acquitted if he is retried with the above-described evidence presented in his defense at a new trial where he is not tried with the actual shooter. It is clear that there is a strong probability that a jury would acquit Kenneth of capital murder if he was tried separately from the actual shooter and the jury heard that Brown fired in self-defense, supported by the State’s own records which show that the victim owned guns in shoulder holsters, and impeachment evidence showing that Mary Patrick had reason to stop the car driven by Kenneth because she was having an illicit affair with the victim during a bitter custody battle.
Kenneth can show that there was no conspiracy to commit a robbery of either Patrick or LaHood, thus there is no capital murder-qualifying element of robbery. Kenneth can also show that Patrick did not mention any attempted robbery the day after the crime to the psychiatrist from whom she sought counseling. In regards to the self-defense claim, Kenneth could call Brown to testify at a new trial that he acted alone, on an independent impulse, and fired only when he saw the victim with a gun and thought he was going to be shot by the victim for being on his property. Kenneth could substantiate Brown’s story by presenting the State’s records that show that the victim owned guns. Kenneth could also call Dillard and Steen to testify, as they could state, as they have, that Kenneth was not part of any conspiracy to rob LaHood.