Kenneth Foster Case

Kenneth Foster is a twenty-six year old, African-American, living on death row in Texas. 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 and he did not receive a fair trial. It is Kenneth's legal position that he 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.

Where Kenneth's case becomes plagued is by extraneous offenses that occurred earlier in the evening before the shooting. At the guilt/innocence phase of the trial, the prosecution presented the case of four young African-American men - Maurecio Brown, Dewayne Dillard, Julius Steen, and Kenneth Foster-who went out one night in a car driven by Kenneth, smoked some marijuana, and decided to pull hold-ups as Dillard had brought a gun with him. As the truth be told, two robberies did occur that night and it would be these that the prosecution used to convict Kenneth, not the event of the capital case. This was a tactic used to bias the jury and cloud their mind as to what evidence to watch closely and consider. The prosecution version of the events was as follows: Twice, Steen and Brown exited the car to rob people. The usual procedure was that Steen would choose a victim on the street, Kenneth would stop the car, then Brown and Steen, using Dillard's gun, would jump out, Kenneth would drive away, and then Steen and Brown would rob the victim for his/her wallet. Steen and Brown would then run to wherever the car had parked. Each time this happened all four men in the car "agreed" to the circumstances of the robbery before Steen and Brown committed it, thus, the State argued, a conspiracy to commit robbery was hatched.

Later that night, after more driving around, Brown exited the car alone, while the car was parked and without any discussion with the others about a robbery, approached a woman named Mary Patrick over 80 feet away up a residential driveway to ask her for her phone number. Brown was unexpectedly confronted by her boyfriend, Michael LaHood. Jr. Brown shot LaHood with Dillard's gun, which unknown to Kenneth, Brown had snatched off the seat as he jumped out of the car. The prosecutors relied heavily on saying Kenneth knew a robbery was going to take place, when in fact that was never the idea from the start. Dillard testified that when the car stopped, he had the gun and told Kenneth "Let's go." As Kenneth began to pull away from the curb, Brown got out of the car. As Brown was getting out, he grabbed the gun which was sitting on Dillard's left side. Dillard testified at Kenneth's State Appeal hearing that he did not expect Brown to do this and that he had not given Brown permission to take the gun. Dillard testified that Kenneth could not have seen Brown take the gun because it was dark. Kenneth was driving the car and Dillard and Brown were in the back seat.

At trial, the prosecution presented no evidence to suggest that Kenneth pulled the trigger when LaHood was killed. Brown admitted the shooting in writing immediately after arrest and again to the jury at trial, but claimed that he fired in self-defense in fear of LaHood shooting him first with a gun he heard and saw on LaHood which Brown identified as a 9mm weapon. All four young men, including Brown, gave statements that implicated Brown as the shooter, but none of the statements indicated that a robbery was in progress. During Kenneth's State Appeal, Dillard testified that Kenneth was not part of any supposed plan to rob LaHood. In a recent affidavit, Steen has stated that he only suspected Brown might be robbing LaHood after Brown had exited the car and that he does not believe that Kenneth had any knowledge of a supposed plan to rob LaHood. The significance of these facts is that the only people who could have any knowledge of a supposed conspiracy to rob LaHood have all stated on the legal record that they do not believe such a conspiracy took place, thus exonerating Kenneth of any involvement in the shooting of LaHood.

Kenneth's "involvement" that night - driving a car around 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.

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. The first law enforcement agents did not arrive at the house until almost 15 minutes after the shooting. Brown described the gun he saw and heard cocked 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 including a 9mm. 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 which 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.

Even if the guilt/innocence phase of Kenneth's trial had been fair and his conviction just, 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 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 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 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.

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.

Despite these strong appellate claims, Kenneth's case has already been affirmed on appeal by the Texas Court of Criminal Appeals. Thus he has lost his first battle for a new trial. We are viewing the continual executions of people in Texas that should not be and we hope that you feel the same way about Kenneth. We cannot sit on the sidelines and wait for a special type of case the will be the almighty savior to every man on death row. We must utilize these righteous cases to battle this unfair system so that we will set the precedent that we want better for the people in the Judicial System. Kenneth's case is a start and we ask you to unite in his plight. We are reaching out to you because we have faith in your ability to motivate and mobilize. Kenneth deserves a new trial where he can have the opportunity to fully and vigorously present a complete defense that allows the jury to take into account the whole picture.

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