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Condemned killer spared by Texas governor

Michael GraczykAssociated PressVail, CO Colorado

HUNTSVILLE, Texas (AP) – In a small cell a few feet from where 23 men this year have taken their last breaths, condemned prisoner Kenneth Foster received a surprising and unexpected message from a warden.He would live.Texas Gov. Rick Perry, in a rare and uncharacteristic move Thursday, spared Foster hours before he was to be executed for his role in a San Antonio robbery-shooting 11 years ago. The decision came on the heels of an equally unusual recommendation from the Texas Board of Pardons and Paroles.”The first thing I did was drop to my knees and say a little prayer,” Foster said. “I owe a lot of people.”The 30-year-old became only the second inmate since Texas resumed carrying out executions in 1982 that the parole board voted to stop an execution this close to punishment time. And in that case, in 2004, Perry rejected the board’s recommendation and mentally ill prisoner Kelsey Patterson was executed.”I was real worried about that,” said Keith Hampton, Foster’s lawyer.He was walking toward the governor’s office in Austin when he received a call about Perry’s decision.”I did go into this thinking this is a governor who went ahead and let Kelsey Patterson be executed,” Hampton said “It all happened so fast, to tell you the truth… It’s a good day.”Not for Nico LaHood, whose brother, Michael, 25, was gunned down Aug. 15, 1996, on the driveway of his family’s home.”No one requested to talk to us. No one. Nothing,” a frustrated LaHood said after a reporter told him of Perry’s decision.LaHood watched Foster’s codefendant, Mauriceo Brown, die last year in Huntsville and had planned to be in the chamber Thursday evening to see Foster’s lethal injection.”For the governor to do that, I believe he folded to political pressure,” LaHood said.Over his two-plus terms in office, Perry has commuted 30 other death sentences, but his hand had been forced in the other cases. All were either juveniles at the time of their offenses or mentally retarded, people who the U.S. Supreme Court has ruled cannot be executed.This time, with the Supreme Court still considering appeals in Foster’s case, Perry agreed with the parole board. He signed an order Thursday that sends Foster to prison for life, calling it “the right and just decision.””I was surprised, but I had faith he was going to do the right thing,” Foster said as he was being taken from the Huntsville Unit of the Texas Department of Criminal Justice, where executions are carried out, for a return trip to the Polunsky Unit near Livingston, where death row inmates are housed.He’ll soon be moved to another prison.Perry, a staunch supporter of the death penalty who has fought attempts to water down Texas’ laws on capital punishment, said capital murder defendants should not be tried together, as Foster and Brown were.”I am concerned about Texas law that allows capital murder defendants to be tried simultaneously and it is an issue I think the Legislature should examine,” the governor said.Death penalty opponents had launched a public relations campaign to save Foster, specifically objecting to Texas’ unique so-called law of parties, in which each participant of a capital crime is held equally responsible.Hampton, whose appeal to the Supreme Court focused on that issue, estimated at least a dozen of the 402 inmates put to death in Texas since the state resumed carrying out capital punishment in 1982 have been executed under the same law.Last weekend, a group picketed outside Perry’s Austin church.”We commend Governor Perry for preventing this miscarriage of justice,” said Sue Gunawardena-Vaughn, director of Amnesty International USA’s Program to Abolish the Death Penalty. “We also share the governor’s concerns about Texas death penalty law and urge him to examine all injustices plaguing the capital punishment system in his state.”David Atwood, founder of the Texas Coalition Against the Death Penalty, applauded Perry for recognizing that the death penalty “had been grossly misapplied in this case.”Foster and Brown were tried jointly for killing Michael LaHood. Both prosecutors and defense lawyers asked for separate trials for the pair but the trial judge declined their requests.Foster acknowledged he and Brown and two friends were high on marijuana and alcohol and had robbed at least four other people in San Antonio that night when they followed LaHood and his girlfriend. Brown got out of a rental car Foster was driving, demanded car keys and a wallet from LaHood, then shot the man when LaHood didn’t immediately produce them. Brown ran back to Foster’s car and they drove off.During the shooting, Foster was about 80 feet away, sitting behind the wheel.”I didn’t kill anybody,” Foster told The Associated Press in a recent interview from death row. “It’s hard for you to anticipate how Brown is going to react. Texas is saying flat out: You should have known better.”In life, we have hindsight. Texas is saying you better have foresight. They’re saying you better be psychic.”Less than an hour after the shooting, Foster was pulled over for speeding and driving erratically. Foster, Brown and two others in the car, Dwayne Dillard and Julius Steen – all on probation and members of a street gang – were arrested for LaHood’s slaying.Dillard is serving life for killing a taxi driver across the street from the Alamo two weeks before LaHood’s slaying. Steen took a life sentence in a plea bargain.—On the Net:Texas Department of Criminal Justice execution schedule http://www.tdcj.state.tx.us/stat/scheduledexecutions.htmKenneth Foster http://www.freekenneth.com


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