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.

constitutional deficiencies


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.


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