Parole Board Votes 6-1 to Spare Kenneth Foster

By a vote of 6-1, the Texas Board of Pardons and Paroles has recommended clemency for Kenneth Foster. Whether they were troubled by the implications in this case or simply yielded to overwhelming pressure, today justice was done.

This is only the third time in its history that the board has recommended commutation on a death row appeal. The final decision is up to Gov. Rick Perry, and although his concurrence seems likely, it's not guaranteed.

In fact, the Board of Paroles has only recommended that a sentence be commuted twice in its history [prior to the Kenneth Foster decision.] In 1998, a recommendation was approved by then-Gov. George W. Bush in the high-profile case of Henry Lee Lucas. And, in 2004, they recommended the execution of paranoid schizophrenic Kelsey Patterson be commuted to life in prison, but Perry refused to grant the commutation.

Take a moment to thank the handful of Democratic legislators who signed letters to Governor Rick Perry urging a halt to the execution of Kenneth Foster, including three from North Texas.

Alma Allen (Houston)
Lon Burnam (Fort Worth)
Harold Dutton (Houston)
Jessica Farrar (Houston)
Helen Giddings (Dallas)
Terri Hodge (Dallas)
Donna Howard (Austin)
Ruth Jones McClendon (San Antonio)
Elliot Naishtat (Austin)
Dora Olivo (Rosenberg)
Eddie Rodriguez (Austin)
Sylvester Turner (Houston)
Mike Villareal (San Antonio)

Update: It's official. Bodicea at Texas Kaos reports that Gov. Perry has commuted Kenneth Foster's sentence to life in prison.

"After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster's sentence from the death penalty to life imprisonment," Gov. Perry said. "I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine."

It's time to revisit the "law of parties." And while we're at it, it might be a good time to take a good hard look at the makeup of the Texas Court of Criminal Appeals.

Texas Board of Pardons and Paroles to Rule Today on Kenneth Foster

The execution of Kenneth Foster is scheduled tomorrow, August 30 at 6:00 p.m. Foster was sentenced to death under the Texas "Law of Parties" provision. If you aren't familiar with the case of Kenneth Foster, you can catch up here.

After a day's delay, the Texas Board of Pardons and Paroles is scheduled to issue its ruling on a possible commutation of sentence for Kenneth Foster at 1:00 p.m. today. Governor Perry can either accept or reject the board's advice. Supporters of Kenneth Foster plan a rally this afternoon, after the board's decision.

The Campaign to Save Kenneth Foster will hold a rally and press conference to respond to the board's decision at 5:00 PM at the Texas Governor's Mansion (Lavaca at 11th).

Capitol Annex points out that as a Methodist, the decision to commute Foster's sentence should be easy one for Perry.

The call for mercy for Foster has literally reached around the world, and in the process, cast a harsh light on the Texas legal system. Jimmy Carter and Bishop Desmond Tutu are the latest in a distinguished line of concerned citizens, organizations and newspapers to call for a halt to the execution.

Update: According to the Texas Moratorium Network, there has been another delay in the decision by the Texas Board of Pardons and Paroles.

The Texas Board of Pardons and Paroles did NOT make a decision today on the case of Kenneth Foster, Jr. There was a crowd of about 75 people who had gathered at the governor's mansion in Austin waiting on the decision, but it never came. Now, we expect a decision tomorrow. We do not know what the reason is for the delay, but it is not really the best way to conduct a decision about an execution when the governor will have much less than 24 hours to consider whatever the board recommends. In fact, the governor should go ahead and issue a 30-day stay because of the BPP's failure to give him 24 hours to make a decision.

There is still time to contact the governor's office and urge him to stop Foster's execution. Contact info is here.

Rally for Kenneth Foster on August 21

I wanted to highlight a comment that someone left on a previous post on the plight of death row inmate Kenneth Foster.

If you are moved by the case of Kenneth Foster, and if you can get to Austin, we encourage all justice-minded people to come to a rally in support of Kenneth. The rally is on Tuesday, August 21, starting at 5pm. We will gather in front of the Capitol at 11th St. and Congress Ave. and march to the Governor's mansion to make our voices heard. For more information, visit [Save Kenneth Foster] or call 512.584.1578.

In the meantime, Sean-Paul Kelley, whose plea for mercy so moved us in the first place, notes that the human tragedy of this story has been lost in the scramble of media to win the ratings war.

And while we sympathize with Kelley's anguish, we're hopeful that the wider exposure will accomplish what the appeals process so far has failed to do - commute Foster's sentence. The odds at this point don't look good.

[Foster's attorney, Keith Hampton] said he has exhausted virtually all legal recourse, including an appeal to the U.S. Supreme Court, and that his last best hope relies on a recommendation of commutation from the Texas Board of Pardons and Paroles to [Gov. Rick] Perry.

Is he hopeful? Given Texas' track record with executions, "No, I am not," Hampton said. "The odds are extremely low."

In fact, the Board of Paroles has only recommended that a sentence be commuted twice in its history. In 1998, a recommendation was approved by then-Gov. George W. Bush in the high-profile case of Henry Lee Lucas. And, in 2004, they recommended the execution of paranoid schizophrenic Kelsey Patterson be commuted to life in prison, but Perry refused to grant the commutation.

Katherine Cesinger, a spokeswoman for Perry, said the governor considers each execution on a case-by-case basis. She said Texans overwhelmingly support the death penalty, and that Perry, in his suppot [sic] for it, is "carrying out the will of the people."

Jackie Deynolles, the acting chair of the 7-person pardons and parole committee that will review Foster's case, would not comment, other than to say that the board has received Hampton's petition and will issue a decision on Aug. 28.

Perry never made a move in his life that wasn't political. The fact that in Foster's case the punishment clearly does not fit the crime probably isn't keeping the governor up at night. The only way to convince him and the board to commute Foster's sentence is to convince them that an execution in this case is clearly not the "will of the people." (See rally, above.)

Foster is scheduled to be executed on Aug. 30th.

Will There Be Mercy for Kenneth Foster?

If you are following the Kenneth Foster case, Bob Ray Sanders has two op-eds on the subject this week. (See here and here.) If you haven't been following it, the Booman Tribune has a fairly succinct summary.

Kevin Foster, you see, was convicted under the "law of the parties" rule in Texas (in other states commonly referred to as the Felony Murder Rule) which makes a defendant liable for murder, even if the victim was killed by another person, and even if the defendant did not intend for the murder to occur, if anyone dies as the result of the commission of a felony. Foster was alleged to have been party to a robbery by Mauriceo Brown, the man who murdered Sean's friend, Michael LaHood, in the driveway of Mr. LaHood's home. Foster claimed no knowledge of the intended robbery, and never left the car in which he drove Mr. Brown and two other men. One of the other passengers in the car, Julius Steen, testified against Mr. Brown and Kenneth Foster in exchange for a lesser sentence. Brown and Steen had committed two other armed robberies earlier in the evening during the time Foster was with them. It was Mr. Steen's testimony which tied Kenneth Foster to the alleged robbery and subsequent murder of Michael LaHood by Mr. Brown. In essence, Kenneth Foster was sentenced to death for not taking a plea bargain before Mr. Steen did.

Sean-Paul Kelley, blogger for The Agonist, makes a very earnest appeal to spare Foster's life. What's remarkable about this diary is that he makes this plea for mercy even though the deceased, Michael LaHood, was Kelley's best friend.

I still remember eating chicken fried steak with him and D-Day--the third and most successful leg of our triumviral friendship--at Maggies at 3:00am after clubbing, back when the three of us attended the local junior college, were obsessed with the opposite sex but too stupid to realize they were just as obsessed with us as we were with them. God how I'd give anything to have him back. Thinking of him brings a tear to my eyes even now. What makes it worse is that I'd returned from living out of the country a few months before he was killed. A new career kept me busy. We kept postponing getting together. My last words to Mike--two weeks before he was murdered--were a cliché for all clichés: "we'll do it next weekend, buddy, we've got all the time in the world." I couldn't hear the clock ticking. I wish I'd listened closer.

And for that I hated Mauriceo and his gang even more, and for a long time. But the execution of a young man who didn't even kill Mike? That's not justice. It's senseless vengeance, a barbarism cloaked in the black robes of justice.

The Texas Moratorium Network has published Foster's letter to Governor Rick Perry. If one takes it on face value, it is a fairly affecting document.

I’ve discovered (and hopefully others will, too,) that the pain, sorrow and compensation is not taken care of through simply saying I’m sorry or through hundreds of executions, rather giving love everyday, helping someone, speaking truth to power - showing that one man with courage can be a majority.

If you agree with that last statement, Sanders' column ends with the following suggestion:

Contact the governor's office or the Texas Board of Pardons and
Paroles to object to the execution of Kenneth Foster Jr.

Gov. Rick Perry
Mail: State Capitol, P.O. Box 12428,
Austin, TX 78711-2428
Telephone: 512-463-2000
Fax: 512-463-1849
E-mail:

Use the form at www.governor.state.tx.us/contact

Texas Board of Pardons and Paroles
Mail: P.O. Box 13401, Capitol Station,
Austin, TX 78711

Kenneth Foster is scheduled for execution on August 30th.