Kenneth Foster's case is getting increased national and Texas attention because of the particular circumstances of his prosecution under the state's law of parties.
While a law of parties -- or criminal responsibility for conduct of another -- is a common legal concept, Texas has a uniquely worded law. No other death penalty state has a statute that is applied as the Texas law is. The current language in the Texas Penal Code was written in 1973, became effective the following year, and its intent has been expanded by rulings of the Texas Court of Criminal Appeals over the years.
Kenneth Foster's case may be the most outrageous application by a Texas prosecutor of the law of parties, but it is not the first time it has been used in a Texas capital case. On the basis of published opinions, legal researchers believe that in at least 12 instances, people have been executed under law of parties prosecutions. Since some opinions are unpublished, it is possible that the actual number of executions may be 20 or more as a result of this unique Texas provision and prosecutorial discretion.
Looking through my archives, I see that perhaps the best, most detailed news article explaining the law was written in 2005, by the Austin Chronicle's Jordan Smith, a first-class journalist. Her must-read report from the February 11, 2005 Austin Chronicle is, "Wrong Place, Wrong Time." Here is an extended excerpt:
Foster's defenders say the prosecution's theory is absurd and unjust, and that his case is a textbook example of the large and potentially deadly problem with the Texas law of parties. Specifically, they argue that a section of that law – section 7.02(b) of the Texas Penal Code – unconstitutionally makes a defendant eligible for the death penalty based only on tangential involvement in a crime, indeed, for being at the wrong place at the wrong time. The law's threshold for proving culpability is so low, and the discretion prosecutors have to decide its application so wide, critics say, that the law unconstitutionally expands the pool of death-eligible defendants, instead of ensuring the ultimate punishment is reserved for the most heinous crimes. "There are many more people who commit murder by their own hand than are caught in the death penalty net," says UT law professor Jordan Steiker. Supporters of capital punishment generally insist that the death penalty is reserved for "the worst of the worst." If that's true, asks Steiker, "How can someone be eligible in this vicarious way?"
Most observers, even those who accuse prosecutors of abusing 7.02(b), agree that the law must prescribe some way to hold parties to a crime responsible for their conduct. Indeed, the law has long reserved that room. "The law of parties is a perfectly good legal statement of culpability in felony cases," including those carrying the possibility of a death sentence, said James McCorquodale, a Dallas attorney who has challenged the use of the law. "The reason that people keep wanting to [challenge it] in the capital context is that, aside from legal culpability, there should be [a weighing] of moral culpability."
Chapter Seven of the Penal Code outlines the ways in which a person can be held "criminally responsible" for the actions of another. Under Section 7.02(a), a person can be considered responsible for a crime committed by another if the person promotes, solicits, encourages, directs, or aids in the commission of a crime (a fairly common definition of accomplice liability), or aiding and abetting, which requires the state to prove specific, individual culpability. However, under Section 7.02(b) – the "conspirator liability" statute – if a group of two or more "conspirators" agree to commit one crime, but in the process commit another, each of the conspirators is guilty of the crime committed, if the crime was "one that should have been anticipated." The difference is one of intent and foresight: The "accomplice liability" standard requires a finding of intent, while the second, more broad and less rigorous conspiracy section simply requires a finding that a crime was foreseeable.
In practice, the two sections have often been applied by prosecutors – and by judges, in crafting the jury charge – as a seamless unit. "The whole shooting match ... can be given to a jury and left to them to sort out," says UT law professor Rob Owen. Thus, in Foster's case, the state offered jurors a descending scale of culpability upon which they could convict, and, in the end, assess death as punishment.
Hence, prosecutorial use of the law has created – not only in Foster's case, but also in numerous other cases tried since the statute took effect in 1974 – the possibility of a death sentence without any legal finding of active participation in a crime, nor even of a homicidal intent. To Keith Hampton, Foster's current attorney, who knows of many similar cases, that is a major problem. "By employing the conspiracy liability statute, the state is able to make persons death-eligible on nothing greater than a negligence standard – that the defendant 'should have anticipated' that his conspirator would, in the course of any planned felony, intentionally kill another person," Hampton wrote in Foster's federal appeal. That is true even though, he continued, "negligence is the least culpable mental state known to criminal law."
The most troubling aspect of the law is its reliance on "foreseeability," says Owen. "The problem is asking jurors to put themselves in the shoes of a person who has done something [where the outcome is already known], and to ask them to put that out of their minds," Owen said. "It is nearly impossible to ask someone to suspend their disbelief once they know what happened. That's a real problem. Lots of things, in retrospect, look like a bad idea." As a result, the law offers prosecutors wide latitude for attributing responsibility for a crime, and carries with it the potential for devastating, and ultimately unjust, results. "It is ripe for abuse," said Owen. "It is a standard that could be stretched to fit a lot of situations." Foster says that's exactly what Bexar Co. prosecutors did in his case. He admits his involvement in two robberies that night but denies that there was any connection between those crimes and the LaHood murder. "The fact that I let [Brown back] in the car," he said in an interview on Livingston's death row, "does not make capital murder."
Since 1982, the U.S. Supreme Court has twice tackled the "law of parties" and its applicability in capital cases, with conflicting results. In a case styled Enmund v. Florida, the court ruled in 1982 that Earl Enmund's agreement to act as a getaway driver in a robbery that ended in murder was insufficient to warrant death. "Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed," the court wrote. "We have concluded that imposition of the death penalty in these circumstances is inconsistent with the Eighth and Fourteenth Amendments." The court concluded that in order to be eligible for the death penalty, a defendant either had to kill, attempt to kill, or intend to kill. The decision, says Owen, "seemed to be an honest attempt" to "screen out" a category of defendants as ineligible for a death sentence.
However, just five years later, the court reconsidered Enmund. In 1987, the court took up Tison v. Arizona, in which two brothers were sentenced to death for a quadruple homicide their father committed after the brothers helped him break out of prison. Although the brothers did not intend to kill, the court opined, their involvement in the prison break was substantial, and the cache of weapons they took along suggested they were ready to kill if necessary. "[K]nowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state," the court concluded. "We will not attempt to precisely delineate the particular types of conduct and states of mind warranting imposition of the death penalty. ... Rather, we simply hold that major participation in the felony ... combined with reckless indifference to human life is sufficient to satisfy the Enmund culpability requirement."
The two rulings have not finally clarified the circumstances necessary to impose death for party liability – and as a result, Texas' broad statute remains intact.
In 1985, the U.S. Supreme Court denied certiorari in the Texas case of Darryl Elroy Stewart, and the law of parties was an issue in his case as well. Justice Thurgood Marshall wrote a dissent to the Court's refusal to review Stewart's case, joined by Justice William Brennan. That dissent is here. An excerpt:
Under the Texas capital murder statute, a murder does not constitute capital murder merely because it was committed in the course of a burglary or other specified felony. The statute explicitly provides that the murder must have been committed "intentionally" in the course of the other felony. Tex. Penal Code Ann. 19.03(a)(2) (Supp.1985). In theory, therefore, a person cannot be required to face the death penalty without having acted with an [474 U.S. 866 , 869] intent to kill. Ironically, it was this reading of the statute that led this Court, in Enmund, to number Texas among the States that did not permit a capital sentence to be imposed upon a person convicted only of felony murder. 458 U.S., at 790 , n. 7, n. 7.
The Enmund Court's assessment, however, did not take into account the Texas "law of parties." Under that law, a person can be punished for an offense committed by another if he is "criminally responsible" for the other person. Tex.Penal Code Ann. 7.01(a) (1974). The "criminal responsibility" of person A arises if A conspires to commit one felony and, in furtherance of that unlawful purpose, a co-conspirator in the first felony commits a second offense that "should have been anticipated" as a result of the conspiracy. The statute explicitly provides that A is guilty of the second offense even "though having no intent to commit it." Tex.Penal Code Ann. 7.02(b) (1974); see Ruiz v. State, 579 S.W.2d 206, 209 (1979) ("[S]ection 7.02(b) . . . eliminates any necessity on the part of the State to prove the appellant had any intent to kill"). If the first offense is burglary, and the co-conspirator's second offense happens to be murder, then A may be deemed to have committed capital murder-even though the capital murder statute requires that the murder be committed intentionally in the course of a felony. The vulnerability of A to a capital charge under these circumstances, therefore, is entirely dependent on the acts of his co-conspirator; A 's own criminal accountability is not entirely within his control. In this application of the Texas statutes, every intent element that would normally guard against a capital charge for one who did not kill or intend to kill can be neatly circumvented and substituted with the fiction of vicarious intent. This is no mere theoretical quirk in state law; it is precisely the train of logic that quite possibly led to the death sentence in this case.
In 1993, Stewart became the 57th inmate put to death by lethal injection in Texas. The two cases discussed in the dissent are Enmund v. Florida [458 U.S. 782 (1982)] and Tison v. Arizona [481 U.S. 137 (1987)].
Earlier coverage of Kenneth's case is here. Following the links at the end of each post will take you to virtually all the news coverage on his case.
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