Free Kenneth Foster

The struggle continues....

The system

Appeal process outline

Trial and Direct Appeal

Trial (the following process begins after a conviction and death sentence)

Texas Court of Criminal Appeals (CCA)

After the first trial, a lawyer, usually one of the trial lawyers, is appointed to handle the direct appeal (usually this happens because the trial lawyer would be familiar with any errors that took place, but many times new lawyers are appointed, especially if the defendant files against that attorney for being ineffective). This appeal is filed in the Texas Court of Criminal Appeals in Austin, Texas. In this proceeding, the defendant cannot introduce any new evidence. Instead, he may appeal errors that appear in the written transcript of the trial, such as erroneous rulings on the admission of evidence, prejudicial comments by the prosecutor and erroneous jury instructions. These are a few among many.

United States Supreme Court

If the CCA denies relief, the defendant can ask the US. Supreme Court to review the case. This is known as a Certiorari. Review at this level is very rare because the Court receives 7.000 request to be heard each year, but only hears about 100 cases per year.

State Habeas Corpus Proceedings

After the trial, at the same time the direct appeal is being prepared, the trial court will appoint another lawyer to file a different appeal, an application for Writ of Habeas Corpus. (There is a catch to this which I‘ll mention shortly). This document is just the opposite of the direct appeal: the claims are based on new evidence that is not contained in the record, the court will not hear claims that could have been raised on direct appeal. This is the point in the process at which a person can bring in new evidence to support claims of innocence, prosecutorial misconduct, ineffective assistance of counsel etc.

[Let us break down a few things about the CCA so you can better understand how it truly works. First off, the CCA is composed of 9 judges. To win an favorable decisions from the 9 CCA judges, 5 out of the 9 judges must agree on a common error that you faced. Only then will you be granted relief of some sort. The fact that you must play see–saw is ridiculous from the start for the simple fact if you have an error, an error is an error and if 1 judge observes that, Justice should be delivered. The most important key to the CCA and why they have fell under such criticism is the political views and actions of the CCA. The whole CCA is made up of Republican judges, where as Republicans in this country have always stood out front as the more conservative and PRO-death penalty supporters. Does this mean Democrats aren’t the same? No! However, Republicans seem to make more of an effort to show where they stand. This Republican panel has been vicious in the relief they give, which has been close to nil. Let me reveal forms of politics that effect the way these judges rule and also who they get put into seat.

In 1982 the first execution took place since it had been reinstated. In the 80‘s Ann Richard's (a Democrat) became Governor of Texas. From 1982 – 1992 only 41 executions were carried out. When Bush ran for Governor and appealed to the predominate Pro-death penalty Texas, from 1992 – 2000 198 executions were carried out. These judges seek to please the public and the Governor that sits above them. Justice is not sought, rather prestige and political favors are.

I spoke of a catch in the Writ of Habeas Corpus application. In 1995 after the bombing of the Federal Building in Oklahoma, President Bill Clinton passed a Law called „The Federal Anti-Terrorism Effective Death Penalty Act. This Act was supposedly made to help clean up the abuse of appeal processes, but in essence was only made to speed up the appeal process. As executions sky rocketed under Bush people began to ask for Justice in seeing why men were being killed at such fast rates, however the majority of society was screaming kill them as fast you can and stop wasting our tax payers money on keeping them alive on death row. Of course that is such blasphemy when Texas spends an estimated $ 2,3 million per capital case and this is roughly three times the cost of keeping a person in prison for 40 years. As you notice, when the direct brief is being filed, the writ of habeas corpus is practically filed right behind it. Usually it can be filed within the next year to year and a half. The writ maybe filed even before the 1st step, the direct brief, is ruled on. Once upon a time, you didn’t have to file your writ until the brief was ruled on, thus giving you a fair chance to prepare everything you need to prepare for your writ. So now they not only speed your appeal up, but they cheat you out of the chance of a strategical defense by making you file your 1st and 2nd steps of your appeal simultaneously. How do you know how to truly adjust the strategy of your 2nd step without first seeing what was said and how on your 1st step? This is something that people must truly look at when we’re talking about delivering fair Justice, especially when the stake is a man's life.]

PROCEEDINGS IN FEDERAL COURT

Federal Habeas Corpus Proceedings

If unsuccessful in state court, a person can petition the federal courts for relief. The only claims that may be raised in the federal proceedings are those that were raised in the state court (both direct appeal and state habeas claims). There are very strict time limits that govern the filing of federal habeas petitions, failure to file in time limits, in most cases, waives any further appeals.

[Now, this is where most cases get tricky and many have meet the gurney. We find controversial actions in federal court. Most death row inmates feel that federal court is the best place to receive relief if you have it, due to the fact the politics surrounding the CCA virtually makes it impossible to get relief from them. This is what the public must understand about the differences between the CCA and a Federal proceeding. There is only 1 federal judge that reviews your case. These federal judges are appointed to their seats, they do not have to run for election. Their appointment last until they retire or they die. This allows federal judges more leeway in granting relief, because they don't have to worry about the public lashing back at them for giving prisoners relief. On the other hand, the CCA judges are elected by the people, and since the majority of the people in Texas are pro-death penalty, they seek to please that crowd, thus denying all relief (or as much as possible) under any circumstances. When we look at Laws like the federal Anti-Terrorism Act we must ask why we need laws like this, why are the prisons so overcrowded, why are men receiving hard time for small crimes (mostly drugs, which if you know your facts this country allows to flow into it), why aren’t these judges paying enough attention to these cases? The judges are over flooded with cases because they sit on them, they like to refuse people justice. They are also overcrowded with cases because they are flooding these prisons. Prisons have gone past the rehabilitation structure, to the Big Business structure. So, to make their money they must keep them full at all cost. Only when we pay attention to the larger picture will we understand why things exist like they do. Texas has close to 500 prisoners on death row and have killed close to 300 men since the death penalty was reinstated. But, look at California who has more men on death row, almost 600, but they have only executed approximately less than 20 since the death penalty was reinstated. Why do we have such differences from state to state, when Justice never changes and is the same from state to state? You must ask yourselves these questions because it is you who vote these people into office, thus they represent you. I will show how executions are being carried out in Federal Court and the last 2 steps are becoming virtually invisible]

United States Court of Appeals for the 5th Circuit

If the federal district court denies relief, the case is appealed to the 5th Circuit Court of Appeals in New Orleans, Louisiana. This court has rarely ever given a person relief and mostly because of the scheme they have on entering this court.

[After leaving federal court usually federal court will place a date of execution on you. It is their goal to kill you at this point, period! With the Terrorism Act speeding up your first 2 levels, by time you get to federal court and finish it, you may have on been on death row only 5 – 6 years and for those of us who are trying to gain support and build campaign behind their cases, 5 years is not a lot of time when you must build network systems and above all trust and understanding towards your case. What will happen is, you will seek to get what is called a COA (Certificate of Appeal-ability). You will need the federal court to give you this JUST so you can enter the 5th Circuit. If they do not give this to you, the 5th Circuit will not hear your case. It is virtually nonexistent for them to grant you entrance in their court after federal court denies you that COA. Now, think about this an how it is a well plotted out scheme. For you to be ranted a COA would be like federal court saying they did not do a good enough job and needs the higher court to look over their work. Do you think any judges want to look incompetent in their work? The decisions should not ever rest in the federal court for appeal-ability, a separate party should be in place to decide that. So, what ends up happening is federal courts sets you a date and they execute you rather quickly, because the 5th Circuit has just cheated you out of your next stage of appeal. The final stage is the Supreme Court.

United States Supreme Court

If the 5th Circuit denies relief, the petitioner may seek review in the Supreme Court. Again, as stated, it is very rare that the Supreme Court will hear the case.

This system is suffering from the „pass the buck“ method. When an injustice is given, instead of ones taking responsibility for it (which may cause mass criticism to fall upon them) they pass it along. The morality rate of politicians is falling and with our citizens. Since when does oppression, death and destruction bring about a better society? Although the death row appeal process carries a few more procedures (if granted, such as hearings) this was the basic outline of it and also the hidden events that the public doesn’t know. We need the people to become concerned with what is happening with its society, not just with the people in the streets, but the people in the offices as well. For those of us who are God fearing people, let’s make sure those overseeing the laws are God fearing, because man’s law can never override God’s law. Regardless of religion, race, color or creed, Righteous acts are righteous acts. So, keep in mind a small piece of knowledge, all people want freedom in life and all people want peace and justice, but without TRUTH, we will never have any of them. Until this country decides to stand on TRUTH, none of us will ever fully have any of that. KNOWLEDGE IS POWER, MAKE OUR POWER TRUTH, TRUTH CONQUERS ALL!!!!!!!!

Death Row in perspective

The death penalty is, and as long as it exist will most likely remain, a highly debated topic. Due to the extreme variations between political and religious views the death penalty has drawn some sensitive lines among cultures, countries and even families. Will fairness, justice and peace ever come from this issue? Insights of this country’s history with racial injustices and struggles on civil rights, most likely not!

When all of the propaganda from pro-death penalty advocates are pushed to the side the death penalty boils down to 2 things:

1) a political tool used to instill fear into society with the faux-ideology that it deters crime

2) a systematic scheme used as a means of genocide on certain groups of people within this society.

If the facts are honestly accepted these 2 points will be confirmed more so than the pseudo-ideology of the death penalty being a deterrent to crime and a process that helps rid society of it’s most heinous criminals, ones who cannot be rehabilitated.

The death penalty is controlled by political interest and social prejudices. Most capital cases are tried on how much money a county has to spend, that year, on Criminal Justice issues than the crime itself. A study, revealed by Amnesty International, showed that in Florida, each execution cost the state $3.2 million (six times more than incarcerating a prisoner for life). Texas, with the highest execution rate (over 315 since the reinstatement of the death penalty) spends an estimated $2.3 million per capital case (roughly 3 times the cost of keeping someone in prison for 40 years). *1

When county issues call (eg – educational, medical, street and building constructions, etc.) less money can be spent on capital murder prosecutions. Therefore, many capital murder prosecutions have nothing to do with what is moral or just, but what is economically possible. However, during elections years, when tough on crime slogans come out, you can bet on a rise in capital murder trials.

In addition, statistics, revealed by John Blume, director of the Cornell University Law School Death Penalty Project, showed that chances of a black person being sentenced to death for killing a white is greater that for a white person who kills another white or black. In Virginia, the chances were 18 times greater. The studies suggest that prosecutors tend to seek the death penalty more on blacks because they believe they can win it, specifically because “black life is valued less highly than white life” and “the white-dominated social structure is less threatened by black-victim homicide.” *2

People often frown when thinking a “race card” is being played, yet who can deny the history of America’s south? This point is relevant, as the Virginia statistic, because the south leads the country in executions. Over 80 % of executions have taken place in the south. Half of the U.S death row population is in states of the former Confederacy and 5 out of every 6 person executed in the U.S have been put to death in the south. In Texas, black people make up 12% of the population, but 42% of Texas´ death row. There is no just or righteous consistent method as to how the death penalty is issued or applied. It’s an arbitrary and racist process dealt from a tainted deck.

No study has ever shown that the death penalty deters crime and one never will because it doesn’t. Even FBI statistics have shown that the murder rate in some states which use the death penalty is twice that of some states which do not use the death penalty. *3

The death penalty process has also shown to be hypocritical and contradictive to itself where it says it seeks to execute criminals who’ve committed the most heinous of crimes. What is considered heinous? One may think this is a silly question and quite obvious, but it’s a deceptive use of word. Through the law of parties there are people on death row who’ve never killed anyone, but was allowed to be sentenced to death if a jury believed they conspired to carry out a felony (eg- robbery, kidnapping) and a murder occurred, which the law says they are responsible because a defendant encouraged, aided or assisted the crime. The Supreme Court emphasized that the defendant must have been a major participant in the crime and/or acting with reckless endangerment towards human life. However, D.A.`s are manipulating this law stating that the intent alone, the conspiracy, (even if you were 100 miles away) is enough to make you death eligible. So, if a person is two blocks away while his partner carries out a capital murder would you say his role is heinous and just as death worthy as the actual killer? States such as Texas say yes. I know, because I was convicted under similar methods. Jeffery Dahmer, whose crimes were heinous, never got the death penalty; neither did the Green River Killer (who confessed to a mass of murders). Wouldn’t you agree something is wrong with this picture?

In knowledge of this, how can the death penalty be justified righteously? Who can bring forth some moral issues concerning the death penalty? No matter how clean you carry out an execution it’s still a murder. It’s appalling when this system puts on a get though on crimes facade and screams for the death penalty, but, as a statistic showed, by the time a child reaches the age of 20 they’ve seen 40,000 murders on TV. If this country is truly concerned with murders why does if glorify it so much?

Never has the Government put forth a study to analyze what makes a capital murderer commit his/her crime. They’d like to pass it off simply as these people are savages. This is so because the problems will more than likely be social ones than anything else. Jeffery Rieman, who wrote “A Radical perspective on crime” stated: “ Crime is a means by which people who believe in the American dream pursue it when they find the traditional routes barred.” One out of every two black child and two out of every five Hispanic child lives in poverty. America has the resources to where no person has to be hungry or under-educated. If America wanted it could abolish poverty. Without poverty crime would be extremely low, but abolishing poverty would greatly diminish the capitalist infra-structure which this country thrives on. With approximately 3,500 death row inmates, at approximately 1 million dollars per case, just think what that $3,500,000,000 could have done for impoverished neighborhoods, troubled youth and struggling families. But, to avoid the issues an extermination process and smear campaign against the poor and troubled are carried out. So, does capital punishment really address our social problems?

It’s true that people sentenced to death aren’t housed to be rehabilitated, but does that mean nothing can be learned from the process and situation? Here on Texas´ death row we have been housed in an environment designed to induce punishment administration segregation. This building was purposely constructed to act as a punitive segregation. From the single man recreation yards and day rooms, cell doors, white walls and bright cell lights it was made to break the spirit. They’ve succeeded as many inmates suffer from sensory deprivation symptoms and some have committed and attempted suicide. This is a housing unit where, normally, inmates who received a disciplinary infraction would come to carry out a solitary sentence and once they modified their behaviors would be place back into general population. We are housed here permanently. Due to being in single man recreation dayrooms we’re not given recreational games (like chess boards, domino's etc.); due to the administrations oppressive attitudes towards our death row classifications we aren’t given in-cell recreational arts and crafts; and to spite us we aren’t allowed TVs. Next to a radio and our imagination, plus desire to live, grow, learn and love is the only things to sustain us. Texas position is that we’re here to be executed, not cultivated or rehabilitated, thus they plan to keep us in existence by the lowest means possible until those executions are carried out.

In face of these conditions (many mimicked in other states) politicians are dealing with resistance as death row inmates are continually fighting back , not physically, but politically, socially and spiritually, by participating in positive endeavors. In addition, groups are being invented by inmates that are being put back into society, even for victims families. We realize that if we can disprove the stigmas (that we’re the worse of the worse, incapable of being rehabilitated) we can help abolish the death penalty in another way. This is done by not living up to the stereotypes which will show people in society that the death penalty is an empty ideology based on revenge and murder, thus convincing them to not support it.

In 2004 the 117th death row inmate was released. While many people would like to see death row prisoners lined up and shot, and could especially careless to if we are treated humanely, how can these types of housing conditions be allowed when Innocent men are on death row? Each year the number rises, so Innocence on death row can’t be denied. The bigger question is why does society allow the death penalty to exist when symptoms overwhelmingly show a broken and bias system? The true meaning of justice for all has been abandoned and the is no respect for the sanctity of it or life. The death penalty is a deceptive and frivolous magic trick used by politicians to dazzle the public. However, once they execute the prisoners the social problems have not disappeared. There comes a time when the citizens of America just need to face the realities of their problems. Until we eradicate the acceptance of racism and classicism our society will continue to suffer from these self-inflicted wounds. Therefore, the penalty of death that was said to be reserved for the worse of the worse criminals has in fact been turned directly upon our entire society. Insights of all this we shouldn’t be surprised at our social decay. In the words of Clarence Darrow (American lawyer,1930)- “As long as the world shall last there will be wrong, and if no man objected and no man rebelled, those wrongs would last forever.”

*1- www.amnesty-usa.org

*2 this study was published in the March 2004 edition of the Journal of Empirical Legal Studies

*3- www.amnesty-usa.org