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Kenneth Foster speaks out from death row:
Struggling to survive the Texas death machine

August 3, 2007 | Pages 8 and 9

KENNETH FOSTER is facing an execution date of August 30. His "crime" was to drive a car--but the state of Texas is using its unjust "Law of Parties" to hold him responsible for capital murder. Here, he answers BRYAN McCANN's questions about the travesties of justice that landed him on death row, and his struggle to survive the Texas execution machine.

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YOU WERE sentenced to death even though you didn't fire the gun that killed Michael LaHood, Jr.--you were actually sitting 80 feet away in a car when LaHood was shot. Can you describe the Law of Parties that Texas has used to seek your execution?

THE GIST of the conviction comes down to one word, and that's "anticipation."

According to the law, "[A]ll conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy."

We've all heard of hindsight being 20-20. We look back, and we learn from our mistakes. But Texas has created an inconceivable concept, and that's foresight being 20-20--i.e., you better be psychic.

What you can do

Call on Gov. Rick Perry to stop the execution of Kenneth Foster. Call 800-252-9600 (Texas callers) or 512-463-1782 (Austin and out of state), and send faxes to 512-463-1849.

For more information on Kenneth's case and the struggle of Texas death row prisoners against executions and rotten conditions, see the Free Kenneth Foster and DRIVE Movement Web sites.

Go to YouTube to watch videos of numerous speakers at the July 21 rally, including Nydesha Foster, Mario Africa, Dana Cloud, Shujaa Graham and the Welfare Poets.

Donations to the Save Kenneth Foster campaign can be made by sending checks or money orders (to the account "To Save Kenneth Foster," no. 831766.1) to: Velocity Credit Union, P.O. Box 1089, Austin, TX 78767-9947.

You can also write Kenneth to voice your support: Kenneth Foster Jr. #999232, Polunsky Unit, 3872 FM 350 South Livingston, TX 77351.

 

This is a direct contradiction to what the U.S. Supreme Court has mandated, but this renegade "do what we want to do" attitude isn't uncommon for the Lone Star State.

The Supreme Court specifically stated that a person must "have major personal involvement in the felony and display a reckless indifference to human life." You have to have both, not just one or the other. Federal Judge Royal Ferguson on March 2, 2005, found that neither existed in my case.

But on October 3, 2006, the 5th U.S. Circuit Court of Appeals gave an extremist interpretation of the law and said that because Texas law only requires "anticipation," that was good enough. Basically, they disregarded what the Supreme Court has said as well.

Texas has given no logical guidelines for what anticipation should entail--if you acted with malice, forethought, etc. It's a very vague lynch law, made to widen the death penalty in a shameful and contemptible way.

CAN YOU talk about what your trial was like?

MY TRIAL was a sham. There were two main things that led to the corruption of this case. One was the influence of the victim's family. The victim's father was a prominent attorney from San Antonio, and this led to a vendetta being carried out.

I've never tried to turn this into a family war. I pray for the LaHood family's peace, and I'm sorry for their loss, but I can't deny what took place. There were lawyers and judges at the courthouse telling my family that I should take a plea bargain, because they knew I was going to get death.

This is what I faced going to trial. And at the same time, I didn't have the proper funds to hire an experienced legal team. The Law of Parties is a very intricate law that must be clearly explained to the jury.

My trial attorney, Joanne Eakle, only had one capital case before me, and he went to death row as well, and was ultimately executed. The third and last capital case that my trial attorney represented went to death row, too, but ironically, he got his case reversed on a Law of Parties appeal.

Also, I was tried together with the self-admitted shooter. So this case was set to lose from the beginning.

WHAT'S THE current state of your case?

CURRENTLY, WE have a Subsequent Writ pending in the lower courts. We are using the legal gateway of Section 5 of Rules for Procedures in Death Penalty Cases, which states that we can file a Subsequent Writ if: "The current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable."

We have exactly this through new testimony from my co-defendant, and the state's star witness, Julius Steen, who has come forward to exonerate me.

During my original State Writ of Habeas Corpus, we couldn't get to Steen, because his attorney, Michael Gross, wouldn't let my defense team speak to him. They wanted him protected until he finished testifying for this and another capital case. Basically, we were barred from eliciting testimony from him that would have exonerated me.

Keep in mind that the state gave this man 35 years for two capital murders. He pled out to robbery for his testimony, but I'm getting death for the same crime he was arrested and charged with, and I did no more than him in this crime--sit in the car. I'd also like to point out that Julius Steen stayed in the county jail until mid-2003. He was in the county jail for seven years.

We now have an affidavit from Michael Gross stating that he wouldn't let any of my attorneys talk to Steen until he got his deal (though he did let Steen talk to the district attorney's office), and also from Steen, stating that we didn't conspire to carry out a crime against Mr. LaHood and I had no part in it.

Up until now, the Texas Court of Criminal Appeals has relied on Steen's testimony. They no longer have that. We have also filed a motion to stay this execution. The Court has an opportunity to correct this injustice, and we, the people, have to remind them that this is exactly what they must do.

ASIDE FROM the way it was applied in your case, can you comment on the Law of Parties in general? What do you think it says about the death penalty in Texas?

THE TEXAS Law of Parties is draconian. It's riddled with inconsistencies and contradictions from top to bottom. It reflects the longstanding mentality of this state. It must be repealed.

I come across people who say, "It's the law." Well, words on a piece of paper don't make justice. This country has had many laws before--slave laws, lynch laws, Jim Crow laws and now the Patriot Act laws. None of them were just or right.

We know the system doesn't want to correct this statute, because it would not only show that they were incompetent, but it could open the floodgates to many other cases being overturned--who knows how many? So it's easier for them to kill me than do the moral thing.

This is why I fight as hard as I do--because if I am murdered, then I want to have done something for this cause. If I had done nothing, then that would have been the ultimate insult to life and this beautiful struggle.

YOU ALSO are a founding member of the Death Row Inner-Communalist Vanguard Engagement, or DRIVE--a group of Texas death row prisoners who organize for better conditions, and against the death penalty. Why did you feel it was necessary to form DRIVE?

IT WAS necessary to form DRIVE for many reasons. One of the main ones was we had to become our own number-one advocates.

I feel it's a contradiction if I have flyers and Web sites saying "Save Kenneth Foster," and I'm not doing everything within my power to do that. If I don't fight for me, why should you?

Also, we had to come together to show that just because a person makes a mistake, that doesn't mean that they have to surrender their humanity. We have Christians who browbeat us with the Bible ("an eye for an eye,"), but have they forgetten that Abraham killed an Egyptian, that David had a man killed behind Bathsheba's back. Yet both of these men were called to do God's work and be Prophets.

We needed some unified efforts here on Texas' death row because we have it the worst. We have nothing--no TVs, no arts and crafts, no group recreation--but we have the most executions. There was nothing going on here--no activism, no conscious thought--and it became nauseating. It was time to become pebbles in the pond. The right minds met each other (myself, Rob Will, Gabriel Gonzales and Reginald Blanton), and that was the catalyst.

What we began to do was initiate nonviolent, but combative and resistant, protests on the inside. We would do sit-ins, occupy areas (day rooms, rec yards, visiting rooms) and refuse to leave these areas until issues were addressed.

We put our bodies on the front line, basically saying, "All you have to do is give us what we are due, or you can beat us." Many times we got the latter, because the iron fist is the American way. But if there is no struggle, there is no progress.

With the support of family, friends and groups like the Campaign to End the Death Penalty (CEDP) and International Socialist Organization (ISO), we began to launch complaints to the right Texas Department of Criminal Justice officials and Texas politicians. Media outlets were contacted, and awareness was raised.

We also began to reach out to other death rows to unify the efforts, and this continues to today. DRIVE needs to be a national movement. Not everyone will take on activities like in Texas. Not all death rows are this bad, but we still encourage people to speak out.

More than anything else, we encourage prisoners to not voluntarily walk to their executions or accept their death feast. It's my opinion that when men and women do this, we humanize this process even more. There's no way that I can act like this isn't murder. Murder is murder, no matter how nice and neat you do it.

DRIVE comrades in Texas aren't just progressive thinkers; we're spiritualist, we're students of life. We have thoroughly promoted nonviolence, because we know at the first sign of violence, the system will rant and rave: "See, that's why we have to keep them caged up. They're monsters."

We're not going to fall into that trap, but we aren't that nonetheless. We're here to emphasize that we can correct our mistakes, we can grow, and we can step outside of the box that this system tries to place us in. We're here to DRIVE some humanity back into the minds of society.

IN MAY, some of your family members, friends and allies formed the Save Kenneth Foster Coalition. Can you comment on the work the coalition has been doing?

I'M VERY proud of the work that's being done. Here we have people from different beliefs, mentalities and political stances, but they've worked through their differences to stand together on my cause. My heart is touched in a way that's indescribable.

My family has stepped to the front line, and there's no doubt that I couldn't be where I am without the CEDP. I've always said that the CEDP will be the vanguard of the anti-death penalty movement, because it's concerted and aggressive.

We are not going to defeat this death penalty by holding candles and praying--because faith without works is dead anyway. Many of these politicians who believe in the death penalty claim to be Christians, so how are we going to make this a moral issue when their morals tell them this is okay?

People have to get serious about their activism. The CEDP is like the spear and shield in the hands of the people.

There have been weekly meetings held in Austin for mobilizing behind my case, events organized, activists like Mumia Abu-Jamal and author David Zirin contacted, phenomenal professors like Dana Cloud participating, solidarity from artists like the Welfare Poets, and the list goes on. This coalition is determined to gain victory by any means necessary, and is trying to be smart, but firm.

Like myself, CEDP members agree that the death penalty is systematic social genocide. This year, Texas is approaching 400 executions since capital punishment was reinstated. This coalition is going all out to make sure that I'm not one of those numbers.

We've taken up the words of Che Guevara and turned it into a mantra: "Let's be realistic, let's do the impossible!" La lucha continúa!

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