Support builds to save Kenneth Foster's life

Kenneth Foster’s Aug. 30 execution is only days away, yet he, his family and supporters are not willing to give up the fight to save his life.

Nydesha Foster WW photos: Gloria Rubac

Foster did not kill anyone. The state of Texas is the first to admit this. But because when he was 19 years old, on Aug. 14, 1996, someone he was with murdered a young man, Foster was convicted and sentenced to death under Texas law.

However, under the law, Foster should not have been convicted because he did not fit the criteria of planning or conspiring or even anticipating a murder.

The last month has been a whirlwind of rallies, marches, forums, hip-hop concerts, and radio and TV interviews. Public meetings have been held in Houston, San Antonio and Austin, and also in Harlem, N.Y.

Mario Africa

Foster’s case has been covered in news media across the country and around the world. Even in Texas, several of the major daily newspapers, in Austin, Dallas, Fort Worth and Galveston, have editorialized against his execution. From Australian radio to Spanish television, the world is learning about yet another case of an innocent person set for execution in Texas.

Texas state legislators have received more than 2,500 email letters asking them to look into Foster’s case and to contact the governor and Board of Pardons and Paroles to stop his execution. Web sites and blogs are spreading the word.

This week a YouTube campaign to stop the execution began. People are recording a statement and uploading it to YouTube saying why Texas Gov. Rick Perry and the Board of Pardons should stop Foster’s execution. Then they are sending a message to the governor and board that includes a link to their videos.

Also this week, civil disobedience was planned for an Austin rally at the governor’s mansion. And death penalty abolitionists in New York City planned to take signs against the execution of Kenneth Foster to the big glass windows at the ABC studio broadcast of “Good Morning America.” A public forum featuring Foster’s family is being held in Houston on Aug. 25.

Only four states across the country have laws that enable prosecutors to hold those who were merely present at the scene of a crime legally responsible. Texas is the only state that applies this statute in capital cases, making it the only place in the United States where a person can be factually innocent of murder and still face the death penalty.

Foster’s attorney, Keith Hampton, filed a last appeal with the U.S. Supreme Court in mid-August, calling it a “shot-in-the-dark brief.” It is based on the court’s 1982 ruling in Enmund vs. Florida that forbade capital punishment for a getaway driver sitting in the car during a botched robbery-turned-murder. The court decided the case under the premise that the driver “did not kill or intend to kill, and thus his culpability is different from that of the robbers who killed.”

In a separate case five years later, the justices ruled the death penalty can be imposed on an accomplice if he or she was a “major participant” in a murder and acted with “reckless indifference” to human life.

“There are constitutional limitations on what you can do to somebody who isn’t the triggerman,” said Steven Shatz, director of the University of San Francisco’s Keta Taylor Colby Death Penalty Project. “Merely participating in a robbery is not sufficient, is not in itself a reckless disregard.”

In Foster’s case, not only was he not a participant in the robbery or murder, he did not have any knowledge that his friend was going to do it and he had no way of anticipating it.

Foster was driving his grandfather’s car with three friends on that night in 1996. Two of the young men had committed two robberies that evening. As they were driving one man home, Foster’s companion Maurecio Brown got out of the car to talk with a young woman while Foster and the other two sat in the car about 80 feet away with the windows rolled up and the radio playing. They reportedly heard a “pop” and realized that a shot had been fired.

Foster and Brown were tried together even though Brown admitted to the shooting as an act of self-defense. Both had inadequate court-appointed attorneys. Brown was executed in July 2006.

Two weeks ago, journalists Amy Goodman and Juan Gonzales interviewed Foster’s family on the radio and television show “Democracy Now.” During the program, Foster’s 11-year-old daughter, Nydesha, talked with wisdom and strength about her father.

“He encourages me,” she said. “That’s what keeps me strong. ... I would probably not be able to do anything, because I’d be so sad and stressed out. ... And even though he is a father behind glass, he does a lot of stuff for me. You know, he still is a father. And people need to recognize that.

“When somebody is a big part of your heart, like my father is—I mean, my father is more than half of my heart. I mean, I love him so much. And if the state of Texas kills him just for driving a car, it’s like you’re killing my heart. It’s like you’re killing half of me. It’s like if you execute him, you might as well execute me. ... But I think that I manage to keep myself together, because, you know, me and my father, we write back and forth. And, you know, we’re constantly talking to each other. ... We’re not going to let Texas separate us, because we love each other so much. I mean, I don’t think there is a relationship this big, as me and my father’s.”

Foster’s web page, www.freekenneth.com, has many of his writings. He ends one passage with these words: “I’m here to expose the death penalty for what it is ... and I will continue to scream that CAPITAL PUNISHMENT IS GENOCIDE! AND I MEAN THAT!”

Call Texas Gov. Rick Perry at 512-463-1782 to demand that the execution of Kenneth Foster be stopped. Call the Texas Board of Pardons to ask for clemency for Foster at 512-463-1679.