When the telephone rang, Kenneth Foster was just three hours from death. He had only 180 minutes left of his life before state officials were all set to strap him down to a gurney and pump his body full of deadly chemicals. It was Thursday, August 30th, 2007 when Death Row inmate #999232 received his stay of execution, courtesy of Texas Governor Rick Perry. Operating on the recommendation of the Texas Board of Pardons and Paroles, Perry granted a very rare reprieve indeed. In fact, it was only the third time he’d spared a Death Row inmate from lethal injection since taking office some seven years previously.
Understandably, calls like these from Governor Perry’s office would come as something of a shock to jailhouse staff. Proud Republican Perry was not only a staunch advocate of the death penalty, he was known to actively ignore pleas from the Board of Pardons and had even vetoed a ban on the execution of inmates with severe learning disabilities. So why did convicted murderer Kenneth Foster have his life spared?
The answer is simple, yet complex...He didn’t actually murder anyone.
French M. Robertson Unit is a maximum-security state prison in the West Texas city of Abilene. It’s where 42-year-old Kenneth Foster calls home and probably will do for another thirty years or so. He’ll be eligible for parole in 2037, but that’s a long way away. Right now, he’s still thankful to be breathing.
“I got the strap, y'all wanna jack?”
It was late in the evening of the 14th August1996. 19-year-old Kenneth Foster was driving around the streets of his hometown of San Antonio, Texas. In the white rental Chevy Cavalier with him were three of his friends: DeWayne Dillard, Julius Steen and Mauriceo Brown. The four of them were out looking for clubs and smoking weed when Brown announced to the rest of the car that he was carrying a weapon and suggested they rob a few people to pay for their big night out.
While Foster cruised the streets, his three pals scoped out the sidewalks looking for easy targets. In pretty quick order the men found an easy target. And then another. After ‘earning’ about $300, Foster and his friends decided to stop jacking for the night. Besides, they’d got distracted by an attractive woman out driving called Mary Patrick and decided to follow her to see if one of them could pick her up.
Seconds later, that man - Michael LaHood Jr. - would be slumped in a heap on the ground. Dead. Shot in the face at point-blank range...
The men tailed Mary until she pulled up outside the driveway of the LaHood residence. Drunk and high, they tried to strike up a conversation with her but Mary expertly brushed them off. A young man soon appeared behind her, approached the car and told Mary to go inside. Seconds later, that man - Michael LaHood Jr. - would be slumped in a heap on the ground. Dead. Shot in the face at point-blank range, a river of his crimson red blood slowly running back towards the house as the car full of men drove off at speed.
Within a few hours, the Chevy was pulled over by the San Antonio Police Department, after it was seen speeding and being driven erratically. With the LaHood shooting out over the radio and the descriptions clear, all four men were arrested. Each gave a written statement attesting that Mauriceo Brown was the gunman. Even Mauriceo himself copped to the shooting, although he denied he intended to kill LaHood. His story was that he got out of the car to confront LaHood, only drawing and firing his weapon in self-defence after seeing LaHood holding a weapon of his own. Police found no gun near Michael’s body.
In May 1997, Mauriceo Brown was found guilty of capital murder and sentenced to death. He was to finally be executed, in front of Michael LaHood’s two brothers, in July 2006.
In May 1997, Foster was also found guilty of capital murder and sentenced to death. He was to spend the next decade on Death Row, waiting to be executed. Despite not having even touched the gun that night.
Foster, Brown, Dillard and Steen were all indicted on capital murder charges by a Bexar County grand jury. It was determined that the quartet had ‘intentionally and knowingly’ shot Michael LaHood while attempting to rob him. Dwayne Dillard refused to cooperate and was instead convicted of a separate murder charge, receiving a life sentence for it. Julius Steen immediately cut a deal with prosecutors, testifying against his friends in exchange for a guarantee of swerving the death sentence. What’s that they always say about honour among thieves...?
Mauriceo Brown fired the bullet that ended Michael LaHood Jr.’s life. He admitted as much. All four men did. And the state took his life for his violent crime. But why did the state of Texas decide that Kenneth Foster deserve to die as well? Well, the answer is just three words - ‘Law of Parties’.
Section 7.02 of the Texas Penal Code explains it rather clumsily like this:
'A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids or attempts to aid the other persons to commit the offense.'
In effect, Foster was guilty of murder not because he actually murdered someone, but because he effectively assisted his friend to murder someone. He helped create an environment in which a murder could take place and encouraged the act. He facilitated it. Foster drove to the LaHood residence and parked outside. He kept the engine running while Brown got out and shot Michael in the face. He drove away once Brown got back into the back set of the car.
The state of Texas decreed that Kenneth Foster was just as guilty as Mauriceo Brown. And for ten years he believed that they would take his life away from him. But, in the end, they didn’t. In large part due to the efforts of a high-profile clemency campaign run by Foster’s family. The publicity caused by the efforts and protests of the Austin-based Free Kenneth Foster Coalition helped enormously too. As did the involvement of the nationwide Campaign to End the Death Penalty, the political hip-hop ensemble The Welfare Poets and even an influential inmate's movement co-founded by Foster himself called the Death Row Inner-Communalist Vanguard Engagement (DRIVE).
But remember… When the telephone rang, Kenneth Foster was just three hours from death.
Death Row is a Hell of a place to be.
Listen to the producers discuss the making of the series in the official podcast.