Patterico's Pontifications


Texas Governor Commutes Kenneth Foster Death Sentence

Filed under: Crime,Law — DRJ @ 10:40 am

[Guest post by DRJ]

Texas Governor Rick Perry today commuted to a life sentence the death sentence of Kenneth Foster, whose pending execution was recently discussed by Beldar, Steve Verdon, and Radley Balko as noted in this Patterico post.

Mr. Foster was convicted of capital murder based on these facts recounted from the Fifth Circuit opinion (set forth at Beldar’s Blog):

“On the evening of 14 August 1996, Foster and three others — Mauriceo Brown, DeWayne Dillard, and Julius Steen — embarked on armed robberies around San Antonio, Texas, beginning with Brown’s announcing he had a gun and asking whether the others wanted to rob people: “I have the strap, do you all want to jack?” During the guilt/innocence phase of Foster’s trial, Steen testified he rode in the front seat, looking for potential victims, while Foster drove. Steen and Brown testified to robbing two different groups at gunpoint that night; the four men divided the stolen property equally. The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by Mary Patrick.

Patrick testified: she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster’s vehicle turn around and stop in front of Michael LaHood’s house; Patrick approached Foster’s vehicle to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster’s vehicle and approach her and Michael LaHood; Michael LaHood told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael LaHood’s face, demanding his keys, money, and wallet; Michael LaHood responded that Patrick had the keys; and Patrick heard a loud bang.

Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the night’s earlier robbery victims.”

Brown and Foster were tried together and convicted of capital murder. Governor Perry, acting on an unusual 6-1 recommendation to commute by the Texas Board of Pardons & Paroles, commuted Foster’s sentence because of his concern over the joint trial:

“After carefully considering the facts of this case, along with the recommendation 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,” Perry said in a statement. “I am concerned about Texas law that allowed capital murder defendants to be tried simultaneously and it is an issue I think the Legislature should examine.”

In recent weeks, Mr. Foster apparently made statements about his role in the murder:

Foster had acknowledged that he and his “knucklehead” friends were up to no good as he drove them around San Antonio in a rental car and robbed at least four people. “It was wrong,” Foster, 30, said recently from death row. “I don’t want to downplay that. I was wrong for that. I was too much of a follower. I’m straight up about that.”

One of the prosecutors in Foster’s case and the victim’s brother are not pleased with Governor Perry’s commutation:

” Mike Ramos, among the prosecutors in the trial, said he found Foster’s claims unbelievable. “When you let somebody out of your car with a loaded handgun, what do you expect?” Ramos said, adding that he was irritated by a publicity effort to spare Foster. Last weekend, a group of Foster supporters picketed outside an Austin church the governor attends. Ramos said it was clear to him that Foster was “the puppet master pulling all the strings” during the robbery spree.

LaHood’s brother Nico LaHood said Wednesday he was frustrated that people were willing to believe only Foster’s story. “I don’t know what dynamics are going on that allow us to make the person who is the wrongdoer to become the victim in this case,” LaHood said. His brother, he said, was being “lost in the whole thing.”

A death sentence should be commuted because the Governor believes justice was not done in a particular case. I hope Governor Perry feels that way about this case but his press release does not question Foster’s guilt on substance, although it arguably does from a procedural standpoint.

I credit Governor Perry with a legitimate concern about joint capital murder trials but the Texas Legislature considered these issues when it passed the applicable laws and the Governor’s office is free to suggest changes in the law through its legislative liaison. Governor Perry has chosen an interesting way to send a legislative message to the Texas Legislature and to the citizens of Texas.

21 Responses to “Texas Governor Commutes Kenneth Foster Death Sentence”

  1. I think that’s probably the right decision, and it came in the correct arena.

    Its not vindication of those nutjobs who tried to describe Foster as “innocent”.

    WLS (077d0d)

  2. To expand on what WLS said. The death penalty is a tough issue for all concerned and I guess the bottom line always is: “Must this defendant be executed to vindicate the interests of justice or for the protection of society?”

    nk (a6ecc6)

  3. WLS and NK,

    The jury thought Foster should be executed and, under Texas law, expressly made a finding that there is a probability he would commit criminal acts of violence that would constitute a continuing threat to society.

    DRJ (bfe07e)

  4. No argument there DRJ but the governor and the parole board are also responsible for their own respective consciences. If there is one area where they cannot act as rubber stamps for the decision of others, this is it.

    nk (a6ecc6)

  5. Beldar is considering this commutation, too.

    DRJ (bfe07e)

  6. NK,

    I couldn’t agree more but my concern is the reason given for the commutation. Where is Governor Perry’s statement that he commuted this sentence because justice was not done? We can assume that’s what he meant and I hope it is, but it sounds to me that he just doesn’t like joint capital murder trials anymore.

    DRJ (bfe07e)

  7. No argument there DRJ but the governor and the parole board are also responsible for their own respective consciences. If there is one area where they cannot act as rubber stamps for the decision of others, this is it.

    Yep. And I support the death penalty.

    In this case, he didn’t pull the trigger, I’m a bit uncomfortable with the death penalty.

    If it was a treason case, yes, because of the great harm that could result, but being part of an enterprise where someone is killed… hmmmm… stiff sentence, probably, death, not in my opinion.

    And I think the death penalty should be used more.

    Christoph (92b8f7)

  8. “I think the death penalty should be used more”


    Under what circumstances?

    I’m pro-death penalty, but it’s a slippery slope to expand its influence outside of murder cases.

    Leviticus (43095b)

  9. You can bet on the fact that within 24hrs his attorney will have begun working on getting the sentence reduced yet further. This is part of what I so despise about the legal system.

    clark smith (b1cdcb)

  10. Could just be a bit of slick p.r. by Perry for Texas, which is in for a world of political hurt come January, 2009(thanks, in part, to DeLay’s gerrymandering).

    alphie (99bc18)

  11. “I think the death penalty should be used more”


    Under what circumstances?

    I’m pro-death penalty, but it’s a slippery slope to expand its influence outside of murder cases.

    It should be used in more murder cases. Like across all states, ideally, although not by federal decree.

    I just think it should be used as a deterrent and just retribution in states other than Texas. And in my country.

    Christoph (92b8f7)

  12. I read there are a dozen cases in the state where murder accomplices received the death penalty. Has the Texas Board of Pardons and Paroles recommended the same action, and on what grounds did they advocate for Foster?

    steve (9bc21e)

  13. Steve,

    Beldar is trying to locate the findings from the Texas Board of Pardons and Paroles. The way Governor Perry’s press release is written, his concerns could affect any capital trial with joint defendants. I can’t believe he intended to do that.

    DRJ (8b9d41)

  14. The overwhelming presumption is to try and sentence co-defendants together. There is no good prima facie reason to subject the system and the witnesses to multiplicative trials and very good reasons not to use the earlier trial(s) as dress rehearsal for the later one(s). There are ways to avoid prejudice (when for example a co-defendant’s confession implicates another) short of severance by, among other things, impaneling two juries and excluding one or the other from part of the case. Let’s see if there is clarification of the governor’s remark.

    nk (a6ecc6)

  15. What a crock! If the courts found no prejudicial error by severing the defendants, who the hell is Perry to?

    sam (c8dad5)

  16. Perry better hope to Hell that Foster never attacks/kills another prisoner. If that happens, he should consult with ex-Gov.Dukakis.

    Another Drew (8018ee)

  17. Going back a step, I remember from a discussion of Texas cases some time ago being told that as set up by Texas law, the governor has fairly limited powers of pardon/commutation, and the real power belongs to the Board of Pardons, the gov. being limited to what they allow him. Is that true? And if so, how does it fit into this particular case?

    kishnevi (e39fa7)

  18. Kishnevi,

    You’re right. Click on the Beldar link DRJ has provided. He sets it out in detail.

    nk (a6ecc6)

  19. That is … the link in Comment #5. Although searching through Beldar’s site is always worth the trouble.

    nk (a6ecc6)

  20. Under Texas law the governor can’t commute a case unless the board of pardons recommends it to him. That’s why all this nonsense that Bush murdered all these people while governor was untrue. The board recommended one case to Bush for a commutation and Bush granted it.

    sam (c7853e)

  21. I am very happy with this decision. And I will even be more happy when this judge from the Court of Criminal Appeals, her name is Sharon Keller, will be impeached. Because when this lady is still in charge there will be more Kenneth Fosters!

    peter (71b134)

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