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Thursday, August 9, 2007 FULL SHOW | HEADLINES
2007-08-09

The Case of Kenneth Foster: Texas Prepares to Execute Man for Driving a Car Near Scene of Murder

Guests

Bryan McCann, member of the Save Kenneth Foster campaign and an activist with the Campaign to End the Death Penalty.

Renee Feltz, former news director at KPFT, Pacifica’s sister station in Houston from 2002 through 2006, where she did extensive coverage of capital punishment in Texas and interviewed more than 20 men and women on Texas Death Row, including Kenneth Foster. She also works with Indymedia in Houston, and now New York, where she is studying investigative reporting at Columbia University.

Lawrence Foster, Kenneth Foster’s grandfather.

Tasha Foster, Kenneth Foster’s wife.

Nydesha Foster, Kenneth Foster’s 11-year-old daughter.

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Three weeks from today, a 30-year-old African-American man on death row in Texas is scheduled to be executed. Kenneth Foster was sentenced to death 10 years ago for the murder of Michael LaHood, a white man. The trial judge, the prosecutor, and the jury that sentenced him to die admit he never killed anyone. Foster is scheduled to be executed under a controversial Texan law known as the law of parties. The law imposes the death penalty on anybody involved in a crime where a murder occurred. In Foster’s case, he was driving a car with three passengers, one of whom left the car, got into an altercation and shot LaHood dead. We broadcast a rare interview of Kenneth Foster from death row and speak to his family in Texas as well a journalist who has closely followed his case. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: Three weeks from today, a 30-year-old African-American man on death row in Texas is scheduled to be executed. Kenneth Foster was sentenced to death 10 years ago in a San Antonio court for the murder of Michael LaHood, a white man, in 1996.

What makes Foster’s case unique is that he didn’t commit or plan the murder. Even the trial judge, the prosecutor and the jury that sentenced him to die admit he never killed anyone. Foster is scheduled to be executed under a controversial Texas law known as the "law of parties." The law imposes the death penalty on anybody involved in a crime where a murder occurred.

In Foster’s case, he was driving a car with three passengers, one of whom left the car, got into an altercation and shot Michael LaHood dead. At the time of the shooting, Kenneth Foster was 80 feet away in the car. Since Foster’s original trial, the other passengers have testified that Foster had no idea a shooting was going to take place.

AMY GOODMAN: On Tuesday, the Texas Court of Criminal Appeals denied death row prisoner Kenneth Foster’s final appeal. In a six-to-three decision, the appeals court denied Foster’s final writ of habeas corpus. Foster’s last recourse is the Board of Pardons and Paroles and Texas Governor Rick Perry. According to Foster’s criminal attorney, Keith Hampton, five of the seven board members must recommend clemency in order for Governor Perry to consider granting it. Kenneth Foster’s scheduled execution date is August 30.

Today, Kenneth Foster’s family joins us from Austin, Texas: his wife Tasha Narez-Foster, his 11-year-old daughter Nydesha Foster and his grandfather Lawrence Foster. Bryan McCann also joins us. He’s from the Save Kenneth Foster Coalition. They’re all in Austin. Here in our firehouse studio, we’re joined by the former KPFT news director Renee Feltz — KPFT, Pacifica’s Houston station. Over the last five years, she has interviewed more than 20 men and women on Texas death row, including Kenneth Foster.

We welcome you all to Democracy Now!, and we wanted to begin with Bryan McCann in Texas, in Austin. Why the Save Kenneth Foster campaign? Please explain his full case, especially this law of parties.

BRYAN McCANN: Well, in terms of why Kenneth, you know, one of the challenges in Texas, the state that executes more than any state in the nation, is that there are no shortage of cases with gross injustices that permeate them. Two things makes Kenneth’s case unique. First of all is the sheer fact that he quite literally, as you noted, killed nobody. The state of Texas will be the first to admit that. And the law of parties really is a flagrant injustice that tells us a lot about how the death penalty really operates in contemporary American society. Another important thing about Kenneth’s case is that Kenneth himself is one of the lead fighters in the movement to save his life. Kenneth is a brilliant political mind, who has organized prisoners within death row, has helped organize a movement around his own case and has been a leader in the anti-death-penalty movement from the confines of death row in the state of Texas.

The law of parties itself, as you noted, makes it legal and possible for the state of Texas to target individuals for prosecution by sheer virtue of presence. The language of the law actually states that if an individual should have anticipated that a crime was going to take place, they can be held legally responsible for it. So as Kenneth has noted before, it’s a foresight, 20/20 kind of situation. You’re being punished for a failure of foresight. And because Kenneth was driving in a car with three men who earlier that evening had committed some armed robberies, there was the assumption on the part of the prosecution that Kenneth should have been able to anticipate that Michael LaHood was going to get shot, even though all of the men in the car have since testified that Kenneth had no basis for that expectation, that the understanding was that they were heading home and that the evening was at a close. However, the law of parties is the type of legislation that allows prosecutors in the state the license to negotiate plea agreements, to be very strategic in their effort to optimize their convictions, and really shows the lie to the underlying assumption that capital punishment is reserved for the worst of the worst.

JUAN GONZALEZ: Bryan, but on the law of parties, isn’t there an issue that there had to be involvement in some crime? In other words, that if people were involved in a crime and then a murder is committed, that that triggers the possibility of death penalty.

BRYAN McCANN: Well, the prosecution’s argument was that because three robberies — two robberies, rather, sorry — two robberies had taken place that evening, there already should have been the expectation in Kenneth’s mind that a crime could have taken place. However, what they conveniently leave out is that all of the men in the car, after those robberies had taken place, had agreed to go home, that the understanding was that the night was at a close, they were leaving and they were on their way home. And they accidentally ended up behind another car that thought they were following them. That caused them to stop and led Mauriceo Brown to leave the car and ultimately shoot Michael LaHood.

During the original trial, the prosecution asked Julius Steen, one of the other men in the car, if he anticipated that some harm could have possibly maybe happened to Michael LaHood. And at the time he said yes, but in a later affidavit he clarified that he only thought that was possible when he looked out his window and saw 80 feet away Michael LaHood and Mauriceo Brown and Brown pulling out a gun and pointing it at Michael LaHood. But there’s no basis for believing that Kenneth or any of the other three men could have anticipated that Mauriceo Brown was going to do what he did. But the prosecution, because of the previous night’s events, used that as their justification for saying that Kenneth should have had the foresight to expect that Michael LaHood might have died.

AMY GOODMAN: Renee Feltz, you lived in Texas for years. You interviewed Kenneth Foster as the KPKT news director. Can you describe why you got involved with this case, what it was like to meet him, interview him? And then we’re going to play a clip of the interview you did with him.

RENEE FELTZ: I got involved in the case, in part because Kenneth Foster is his own best spokesperson. He’s an activist on death row, which we’ll talk about in a little bit, and Bryan McCann and the Campaign to End the Death Penalty act as a megaphone for men like him who are aware of what’s happening to them. Kenneth Foster — it was also interesting to look into, because as Bryan said, his case does contradict the way the Texas lawmakers present the use of the death penalty, that it’s a punishment reserved for the worst of the worst. Here we have a man who premeditated no murder. And, in fact, Texas seems to be the one premeditating a murder.

Interviewing Kenneth Foster on death row was quite interesting, because unlike many of the men who have basically deteriorated in their mental condition over the years that they’ve been held in solitary confinement, Kenneth Foster had a few years of college under his belt, he was very aware of what was happening to him as a human being and that the state was trying to rob him and many of his other brothers and sisters on death row of their humanity. In this interview, I covered his case in his perspective, in his own words, and asked him how does the law of parties relate to your case specifically, and that’s what he addresses in this clip.

AMY GOODMAN: Let’s go to that clip, the first of the ones that we’ll be playing for this interview. This is Kenneth Foster, the interview conducted by Renee Feltz. She asked him to describe what happened on the night of August 14, 1996, and whether he had anticipated the shooting.

KENNETH FOSTER: There was totally no anticipation. I mean, we were flagged down by a female that was, you know, on the side of the road. The story that came out later, which, you know, wasn’t — we weren’t allowed to get into in trial, was this was a woman that was going through a very bitter custody battle with the father of her child. And they had had a lot of domestic abuse problems and things like this, fighting and stuff like this. So she had the feeling that possibly she was being followed. And so, this is why she flagged us down. So when she flagged us down, she asked us, you know, "Were you following us?" you know, and things like this. We said, "No, we weren’t," you know.

So I guess one of the guys in the car had made a comment about, you know, how she looked and whatnot, and she was dressed kind of nice. So she was, you know — Miss Patrick was kind of a spicy woman. So she said, "Well, you know, if you like what you see, well, you know, take a picture. It’ll last longer." You know, I mean, this is — you know, this is established in the courtroom. She said, "Yeah." She said, "Yeah, I said that." So at this point in time, you know, I’m ready to drive off. I mean, this is going nowhere.

So when I get ready to drive off, my co-defendant jumps out of the car, OK, Mauriceo Brown. I was driving. Mauriceo was behind me in the passenger seat, so he jumps out. At this point in time, I mean, there was no understanding, there was no agreement, there was no, you know, thoughts to do anything. And we had been, you know, drinking and things that night. So we weren’t really — there was no reason for us to be really paying attention to what he was doing. I mean, a lot of people don’t know Mauriceo Brown, but Mauriceo Brown was kind of the class clown type individual, and he also thought he was a Romeo. You know, this is the type of guy that will get out of the car, and he thinks he can have any woman, you know, and "Let me pump your gas" type of thing. You know, so I mean, these are the type of things that never really got a chance to get exposed in the courtroom, to understand the mentality of this individual and why he would get out and approach a woman like this.

So when he approached — and this is — I can only get this from his testimony, because as he approached the woman, they walked up a driveway. This driveway was about 80 feet. So they were 80 feet away from the car. They were — I guess this is what would be called a carport. So it was dark. It’s like two-something in the morning. So he’s up there talking to the female. And from Mauriceo Brown’s trial testimony, he said that the guy approached him. They got into a little verbal dispute. The guy, you know, brandished a weapon that he thought he heard him cock, and he shot, you know. So at this point, once I’m hearing that gunshot, I kind of shoed up. You know, I shoed awake. I wake — you know, I’m high and things like this — no, I pull awake. I’m ready to hit the gas and get out of there, but one of the other guys in the car was like, "Well, hold on." So by the time Brown comes back to the car, you know, we’re all panicking. "Hey, what happened? What’s going on? You know, what did you do? What did you do?" Brown was catatonic. You know, he won’t talk. I mean, he’s freaked out.

You know, so, I mean, there was no anticipation. There was — I mean, there was no plan. There was no concept to do anything. And this is one thing that, you know, I’m very open about. I’m very open about the case. I talk about every part of it, you know, in detail. And I tell the person, if there was something planned, somebody would have went up there with that guy, you know. And so, that’s one of the things that I’ve been stressing, is that if there was a plan for this guy to do anything, somebody would have accompanied him. And that just didn’t happen, you know. And I was very thankful that, you know, when I went to trial with Mauriceo Brown, which it was against my will — we tried to get a severance, but they wouldn’t grant it — you know, he admitted to it. He said, "I did this on my own. Nobody encouraged me. No, we were not — I did not try to rob the people, and there was no plan to rob. This is why I got out of the car." And he admitted to that on the stand.

And, I mean, it was admirable at the time, you know, but with the prosecution’s hiding evidence and twisting and manipulating the law, you know — I mean, they had a juror, a jury that was presented with a question that said this: If you find that Kenneth Foster was a major participant by driving the car, though having no intent to commit the crime, you still have to find him guilty, if you find that he was a major participant to driving the car. So through the jury charge, they are telling this jury, you can kill this man because he drove the car, if you feel that way, even though that contradicts all of the statutes handed down by the courts. The courts say you cannot kill a man simply for, you know, driving a car. You have to find that he acted in some type of firm way in this, was reckless. And sitting in a car, you know, 80 feet away, it’s kind of hard to say that.

AMY GOODMAN: That is death row prisoner Kenneth Foster speaking from death row in Texas. When we come back, we’ll also be joined by his family in Austin.

[break]

AMY GOODMAN: We’re talking about the case of death row prisoner Kenneth Foster, scheduled to die three weeks from today. In Austin, we’re joined by his family in Austin, Texas. Tasha Foster is Kenneth Foster’s wife. Nydesha Foster is his 11-year-old daughter. And Lawrence Foster is Kenneth Foster’s grandfather. He is 80 years old. Bryan McCann is also there, a member of the Committee to End the Death Penalty, an activist on the Kenneth Foster campaign. In New York, we’re joined by Renee Feltz.

We’re going to turn right now to Kenneth Foster’s grandfather, Lawrence Foster. Can you talk about how your son’s imprisonment on death row — your grandson’s imprisonment on death row and the scheduled execution has been affecting the family?

LAWRENCE FOSTER: The news of such has had quite an adverse effect on the entire family. This is something that is very difficult to understand, that he is in the process of being executed because of something that he did not do. He did not kill anyone. Now, I will acknowledge that some of the things that transpired that night weren’t appropriate, and, yes, he should be punished for such. However, for driving a car and not having any intentions of what was about to exist, and then he is found guilty of capital murder for something of that magnitude, it’s just very, very difficult for the family.

I mean, I’m the grandfather. Kenneth grew up with me. That is, I kept Kenneth. I sort of — he was in my house, on and off, from the age of four to five years of age. And in the summer, yes, he would go back to his biological parents here in Austin, but I was in San Antonio. And due to some of the things that his biological parents were involved in, it was better that he would be there with me. So therefore, during his formative years, in elementary school, he was quite a student. He was really, I would say, brilliant, because he was the publisher of the school paper. He was active in numerous of activities that were going on there in elementary school. And he was not just one that went to school and came home and just left it at that. If things were going on at his school after regular hours, he was there to participate in it. And when these things — you see an individual that is trying to really do something or be someone in life and then get in a predicament of this nature, it is very, very difficult for the family. I have to constantly ponder that. And to everyone, this is hard for us.

But one of the things I want to make you aware of, I am aware of the victims themselves, that they are mourning, they are very sad because of what has happened, and we are very — I’m very sorry that it happened, even though there was nothing that I could do. All I can do is extend my sympathy for them. And I feel very, very — I feel bad for them, because any time anyone loses a loved one, it is going to have quite an effect upon them, an adverse effect.

Now, I often think in these terms here. Why would you want to take a life or two lives for the life of one? Now, you may not be aware that the shooter himself has already been executed. He has paid the price. He has done — I mean, the justice has been done there. But why take two lives for one? I don’t seem — I just can’t — I can’t stomach this. It’s really so hard for me. I mean, it’s sad. And his daughter here, this is something that he — he love — they love each other so much, and when I see them communicating with each other, there is no way that he can physically touch each other, and seeing these things occur, we’re all just saddened because of such. And as I have mentioned, I know that the parents to LaHood, to Mr. Lahood, are sad because of the loss of their son and the others their brother, or however the case may be. But why — is this vengeance? Is this something that you want to — do you just want to destroy each and every one that was in the car, because of such?

JUAN GONZALEZ: Mr. Foster, I’d like to ask you — you mentioned that the shooter himself has already been executed — what happened to the other two men that were in the car with Kenneth and the shooter?

LAWRENCE FOSTER: The other two were — they are incarcerated somewhere. I’m not for sure where they are, but they got lighter sentences. I don’t even know if they were life sentences or not. But one of the individuals had previously been involved in another murder, and I think by him testifying against Kenneth, I think they exonerated him from that, from the charges there, and gave him a lesser charge for cooperating with the prosecutors there. And even though I do not know exactly —- I mean, they are somewhere in Texas. They are incarcerated somewhere in Texas. I think one is somewhere relatively close to San Antonio, but I do not know. And I know that their sentences were much less, much lighter than the one that the other two have gotten. However, I’m not -—

JUAN GONZALEZ: And in terms — I’m sorry, sir, but in terms of the way that your grandson has continued to battle and lead his own fight for justice in his case, how you view his continuing spirit while on death row?

LAWRENCE FOSTER: I think he has done an extremely good job. He has been self-educated by being there. I know that he has an excessive amount of time to concentrate on these things. And I know he has a brilliant mind. And by such, if this is lost, it’s going to be a loss to the community, it will be a loss to humanity, really, because he — I supported him in what he was doing while he is incarcerated there, and everything. And I have been supportive of him from day one until the present time, and I will continue to be supportive of him, because the things that he are doing are beneficial for humanity.

AMY GOODMAN: I wanted to talk about his activism and turn to Renee, because we’re going to play another clip of Kenneth Foster on death row. Renee, you talked to him about this whole movement. Maybe you could set it up for us and also explain something: Why is he sounding like he’s on the telephone when we play these clips?

RENEE FELTZ: Because the men on Texas death row have no human contact, except with guards. They’re held, essentially, in what they refer to as cages. And when he come out to speak with others in the visiting room, they’re held behind a glass wall, and we communicate over a phone.

Now, as you mentioned, Kenneth Foster has been an activist while he’s on death row, and his grandfather was talking about that. He helped to found the Death Row Inner-Communalist Vanguard Engagement, which is DRIVE. He is going to talk about that a little bit in this clip. It’s part of a long trend that I’ve seen over the years as I have interviewed some of these men, who are refusing to go to their deaths quietly. And the other goal of DRIVE, as Kenneth will talk about, is to expose the conditions on death row, which extend not only to the solitary confinement in which they’re held for their entire lives until they’re put to death, but also to the issues of how the mentally ill are treated by guards, to issues of their food, to their issues of their mail service, issues of sanitation, things like this. DRIVE was set up to give a voice to these issues, and Kenneth Foster has been a founder of DRIVE, and he’s been carrying this on. And so, he’ll talk about that.

AMY GOODMAN: Let’s go right now to that clip of Kenneth Foster on death row — he was interviewed by Renee Feltz — talking about DRIVE.

KENNETH FOSTER: We decided it was time to do something about what’s going on on death row. You know, for too long we’ve been stagnant. People are in a rut, you know. And in my concept, the only difference between a rut and a grave is the size, you know. So we had to step up and do something, so DRIVE kind of became like that plank that we strung up and then tried to get things rolling, because nobody knows what’s going on here, you know. And so, we wanted to bring to attention, you know, how they treat us back here, the things that they don’t do for us, the things that they don’t give us, the bad sanitation, the bad food, you know, the no TVs. We’re the only death row in America without a TV. I mean, it just makes no sense. You know, I mean, we have nothing. We’re in a cell 22 hours a day, and if you’re not spending your time doing something positive, I mean, you’re deteriorating. And these people like that. They seem to like watching people deteriorate.

So DRIVE was made to address those issues and also to encourage individuals to stop participating in the executions. Don’t collude. Don’t participate in this. How can we expect people in society to not participate, when we participate? We walk around, we smile like this a joke. This is not a joke. The joke’s on us. You go down there, you eat all this food, you know, these big old death [inaudible]. You know, that stuff isn’t even going to digest. You know, and I think that we humanize this process. People look at it: "Oh, well, he had fried chicken and steak and all this before he died. Must not be so bad." Yeah, it is that bad. It’s horrible. And it’s worse than you think.

So DRIVE became a platform. You know, it became an outlet, you know, a voice, where others could speak out. And, you know, it’s not limited to just one individual. I mean, black, white, Hispanic, Mexican — I mean, whatever you are, we invite you in. Put a voice out there. Speak out. You know, this is the front line. Texas is the front line. There is no other state doing people like Texas is. We’re about to surpass 400 executions this year. 400. I mean, to me, you know, we have to step up. We have to show that this is not OK. And that’s what DRIVE is about.

DRIVE is dedicated to nonviolent activity. That’s a must. I mean, we stress it has to be nonviolent. If we do anything violent, that’s the first thing they’re going to hop on. "See, they’re violent. This is why we’ve got to keep them caged up, and this is why they’re monsters." So we’ve made it a thing, we’re not going to do nothing, nonviolent. It’s going to be combative, we’re going to be resistant, but it’s not going to be violent. And so, that’s what DRIVE has been about.

AMY GOODMAN: That’s Kenneth Foster on death row, speaking through the phone to Renee Feltz , who — well, Renee, describe it. You’re on the other side of the glass?

RENEE FELTZ: That’s right, and we speak over a handset. And that’s how I record.

AMY GOODMAN: Let’s go back to Austin to speak with Kenneth Foster’s daughter Nydesha. She’s 11 years old, about the same amount of time that Kenneth Foster has been on death row. Nydesha, you’ve grown up visiting your dad in prison?

NYDESHA FOSTER: Yes. Since I was about — I was about one years old when the incident had taken place. And ever since he has been put into death row sentence, I have been — he’s been watching me grow up from behind glass, and I’ve seen him watch me get older from behind glass. And it’s a hard thing for me to do, but I get used to it, but it’s not a happy thing for me to do.

AMY GOODMAN: Have you ever touched your dad?

NYDESHA FOSTER: When I was one years old, before the incident happened. I have not touched my dad since probably ’96.

JUAN GONZALEZ: And when you speak with him, what are some of the things he tells you, in terms of continuing to have hope that he will be able to be saved?

NYDESHA FOSTER: Yes. He encourages me. That’s what keeps me strong about his case, because, you know, if I didn’t have him to encourage me, I would probably not be able to do anything, because I’d be so sad and stressed out. But it’s the manner of things that he does and, you know, how he listens to me, even when people don’t look or listen to us. It’s, you know, everybody — he calls me his little princess, and, I mean, I feel like I am his princess because of the things he does for me. 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, because of the type of things and the could-have-should-have-known stuff, and it’s just how the Texas law of parties, they just really need to take the time to listen, and my dad probably would not be in the predicament that he is in, if the law of parties would take the time to listen to us.

AMY GOODMAN: Nydesha, what do you tell kids at school? What do you tell your friends?

NYDESHA FOSTER: Well, I like to keep that my father is on death row in jail private. I’ve told my best friends, but nobody else. But I’m not ashamed of it at all. I’m really not. But, you know, when people say, you know, "your dad," I say I don’t have a dad. Or if they ask me what’s — we know what happened, I would tell them, but I didn’t really like take it out to the public. But there’s been a couple of times at school when I’ve been hurt because they talked about dad and different things.

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, even though — and, you know, 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. We just — you know, we adore each other, and we love each other so much. And I just think that if we fight for his life, that I don’t think that Texas should take away my father’s life.

AMY GOODMAN: We —

NYDESHA FOSTER: I think that the governor —

AMY GOODMAN: Go ahead.

NYDESHA FOSTER: I was going to say that I think that the governor and the Texas law of parties need to really, you know, take some time to look over his case and see that he is an innocent man.

AMY GOODMAN: We’re going to talk about what that kind of appeal involves. We’re talking to Nydesha Foster, Kenneth Foster’s 11-year-old daughter, grew up with her father on death row; Lawrence Foster, Kenneth Foster’s grandfather. When we come back from break, Tasha Foster, Kenneth Foster’s wife, and we’ll hear Kenneth Foster’s own words about being put to death.

[break]

AMY GOODMAN: We’re with the family of Kenneth Foster in Austin. Kenneth Foster on death row, scheduled to die three weeks from today. In studio here in New York, we’re joined by Renee Feltz, former KPFT news director, now in New York going to Columbia School of Journalism. Congratulations, Renee, on that. You interviewed Kenneth Foster when you were in Texas. Juan?

JUAN GONZALEZ: Yeah, Renee, I’d like to ask you about the victim in this case: Michael LaHood. Who was he? Tell us something about him and about his family’s reaction to all of the events that have occurred, and also the prosecution.

RENEE FELTZ: Well, Michael LaHood was a young man, about the same age as Kenneth Foster, and his father was a prominent attorney in San Antonio. Now, the family has observed — I know Kenneth’s grandfather observed this directly, that the senior LaHood had direct access to the judge in the case during the trial, and he was a strong presence in the courtroom during the trial. And it’s argued that this is why Kenneth Foster was tried at the same time in the same trial as the shooter, Mauriceo Brown, not separate trials, same trial.

AMY GOODMAN: The others in the car were not.

RENEE FELTZ: No. One of the others in the car turned state witness and copped a plea, and the other man was related to a different murder and wasn’t tried in this case. Now —

AMY GOODMAN: He was in the car, but he wasn’t tried under the law of parties?

RENEE FELTZ: No. He made a plea with the prosecution and, as his grandfather said, received a much lesser sentence. And this is partly why his access to the Kenneth Foster’s attorney was limited during the trial and that he wasn’t able to pre-interview him and then was hesitant to cross-interview him on the stand, when he made this statement that was ultimately used by the prosecution as the statement that was used to prove conspiracy and that he could have known that the murder was going to take place.

He since, in an affidavit, said that Kenneth Foster, just like him, could not have known that a murder was going to have taken place. That was the substantial part of the appeal, which was denied this week, was never heard by the Texas Court of Criminal Appeals. And they issued no clarifying statement as to why they decided not to accept this appeal, nothing.

Now, it’s clear that Mr. LaHood had a strong presence in the courtroom. It could be argued that that’s why the law of parties was used. I should note that the law of parties is a federal law — is a state law in many states, but it’s only used in capital punishment cases in Texas.

JUAN GONZALEZ: And the family’s — the LaHood family’s response to the pending execution now of Foster?

RENEE FELTZ: They have made no public statement about Kenneth Foster’s execution. His mother did support the execution of Mauriceo Brown, the shooter, in the last year. It could happen that they use their prominence to reach out to Governor Perry and to call for a halt to Kenneth Foster’s execution. Michael LaHood’s close friend has come out and described this murder as vengeance and called for it to be halted. And he’s used —

AMY GOODMAN: The victim’s friend.

RENEE FELTZ: Yes. So there are other people related to Michael LaHood that have come out and opposed the execution, but his family has remained silent, so far as I know, on Kenneth Foster’s case.

AMY GOODMAN: Bryan McCann, this issue of where the governor, how the governor and the Board of Pardons and Paroles weighs in, explain how it happens next.

BRYAN McCANN: In Texas, after all legal recourses are exhausted, the case then turns to the Governor’s Mansion. And in Texas, we have the Board of Pardons and Paroles, and they are individuals scattered throughout Texas who are appointed by the governor. They serve at the pleasure of the governor. And it is their duty to make a recommendation to Governor Perry on the case. And as you noted earlier, Keith Hampton has noted that we need five members of the Board of Pardons and Paroles to make a recommendation to Rick Perry to grant Kenneth’s relief.

Once they have made their recommendation, if they make a recommendation against clemency, then it is a done deal. Then there is no decision for the governor to make. If they make a recommendation in favor of clemency, then it becomes up to Governor Rick Perry. He can choose to side with the Board of Pardons and Paroles and grant clemency, but he can also choose not to.

And it’s kind of the open secret within the state of Texas that the Board of Pardons and Paroles, while officially independent of the governor, does respond to political pressure from Governor Rick Perry. So if there is a political climate where Rick Perry feels it is in his best interest to grant clemency, he can impose that kind of pressure on the Board of Pardons and Paroles. But in terms of the way the legal dynamics work, it begins with the Board of Pardons and Paroles recommendation, and then the ultimate decision is up to Rick Perry.

JUAN GONZALEZ: I’d like to bring in Tasha Foster, wife of Kenneth Foster. Could you talk to us about what it’s been like these past few years? I understand you’re an artist and have attempted to tell your husband’s story in your song. Can you talk to us about what it’s been like all these years hoping to be able to save him from the death penalty?

TASHA FOSTER: It’s very difficult. It’s very difficult to fight something that you don’t know — you really don’t know what you’re up against. I mean, when I first got involved into this, I didn’t know how hard it would be. Would it easy to — I mean, would it be something — I mean, the case was so clear, so would it be something that, you know, we would be able to persuade the world of? And I didn’t really know. And throughout the years, you just notice that you keep getting into these dead-end streets, and that gets — it gets harder by the minute. I mean, I can’t describe what it feels like to walk out of that prison, you know, seeing him sit there, and, you know, every time having this feeling like I’m literally walking out of his life.

And I tried everything that was within my reach to let the world know about the story. I did a music video on the song I did for him. You know, I tried to reach out to the people that way. I noticed that just talking about is not helping. And I just noticed that whatever you do, you continue to feel helpless all the time, because it’s never enough, and there’s never enough people listening to you, and there’s never enough people that know about the case. It’s really hard.

AMY GOODMAN: Have you had any contact with the LaHood family or friends? I mean, Renee just talking about what one of Michael LaHood’s friends said, that Kenneth deserves and is receiving punishment for his role in the tragedy that night, but whatever punishment Kenneth does deserve for his role in my friend’s cruel murder, execution should not ever have been or be an option. He said he didn’t pull the trigger or encourage Mr. Brown to pull it in any way, nor was he even aware that the murder was being contemplated or had been committed until after the fact. This is Michael LaHood, the victim’s friend. Have you had any communication with anyone there?

TASHA FOSTER: No. We have had no communication with the LaHood family. It’s basically a choice, because we don’t want to disrespect them, and we don’t want them to feel that we are completely forgetting about their loss. And we just kind of kept away from that to just be on the safe side of things. And recently they — there’s a documentary. An Italian TV station is doing a documentary on us, and they went to visit them, and they had talked to them about the case, how they felt about it, how they felt about all the activism going on for Kenneth. But that’s basically the only thing we’ve had. I mean, Kenneth’s father wrote a letter to the family a while back. Kenneth himself did that, too, now. But other than that, we try to not be in touch with them, because we didn’t want to offend anybody.

JUAN GONZALEZ: I’d like to ask Lawrence Foster, grandfather of Kenneth Foster. You’re 80 years old. You’ve lived most of your life, I think, in Texas. You’ve seen all of these executions occurring in your state and the state become an international pariah in terms of the death penalty, so many of them African Americans, disproportionately. Your thoughts about the death penalty in Texas and what it’s done to your state, the citizens of your state?

LAWRENCE FOSTER: First of all, I have never been in favor of the death penalty. This is something that man has established, and by such I just do not approve of it. Seeing all of the deaths that have occurred through execution, even though it was not me nor my immediate family in any of them, I could feel — I felt saddened because of such. And to know that we are a civilized state, a civilized nation, and that we are literally — well, yeah, well, we are literally killing people. In fact, I would almost say it’s murder, because we know that it’s going to happen, and it is premeditated. And is this killing murder or what?

And we often have a tendency to ridicule other nations about how they treat their citizens. Maybe we should take a look at ourselves and try to correct some of the things that we are doing, rather than trying to — and really be a lead in the world, be leaders in the world, not just something that will degrade America or degrade Texas. You see, Texas is part of America. And when something happens here, Europe, Asia, various other countries, say, "That is the United States." And they have a tendency to label the United States, because of one little particular area. And I think that we should be a little more cognizant of what we are doing here. I say "we," the state itself. I mean, I’m not going to ridicule the state to any extent, but there are so many things — there are certain things that should be corrected. I don’t feel good over the death penalty.

AMY GOODMAN: Mr. Foster, I wanted to bring Renee Feltz back in to describe for us a tape we’re going to play. It’s from the Department of Texas. Can you explain what this is? And it has to do with people resisting their deaths on death row.

RENEE FELTZ: Yeah, just briefly, the DRIVE movement, as we said earlier, does engage in nonviolent resistance against their executions. Tony Ford, in late 2005, a supporter of the DRIVE movement, not a founding member, did engage in this nonviolent protest. Now, I requested a "use of force" tape from the Texas Department of Criminal Justice, which is something they have to make every time they use force against a prisoner, which they did in this case. If you listen very closely — it’s not very good audio on the videotape — you can hear him stating that his actions are a nonviolent protest against his pending execution, which was ultimately stayed in order to look more closely at some DNA evidence.

AMY GOODMAN: So people have to really listen carefully. This is Tony Ford as he is being executed? Right before?

RENEE FELTZ: No. Tony Ford had a pending execution, which was later stayed. He didn’t know that at the time. And so, he was nonviolently resisting, and that’s what this is video of.

AMY GOODMAN: OK. People can watch or take a listen.

TONY FORD: [inaudible] peaceful, nonviolent protest against my execution date, all execution dates in this [inaudible] this month, next month, next year. The indifference the administration shows [inaudible] nonviolent protest against execution. It’s nothing but a mockery, a spit in the face of myself and anybody else who may still —

AMY GOODMAN: Radio listeners can go to our website to see this video from the Department of Corrections. It’s got lots of static and everything. He was saying, Renee?

RENEE FELTZ: He was basically saying this is nonviolent, peaceful protest. And he was speaking specifically about his execution and the execution of others on death row. He was on a gurney there, you’ll see, and that’s because they basically would pick him up out of the dayroom and handcuff him and then put him on a gurney to roll him back to his death cell.

AMY GOODMAN: Before we end the show, we want to play a last clip of Kenneth Foster, speaking about what he would do if he were pardoned and released from prison.

KENNETH FOSTER: We decided it was time to do something about what’s going on on death row. You know, for too long we’ve been stagnant. People are in a rut, you know. And in my concept, the only difference between a rut and a grave is the size, you know. So we had to step up and do something, so DRIVE kind of became like that plank that we strung up and then tried to get things rolling, because nobody knows what’s going on here, you know. And so, we wanted to bring to attention, you know, how they treat us back here, the things that they don’t do for us, the things that they don’t —

AMY GOODMAN: We’re going to go to this last clip of Kenneth Foster. That one, you heard earlier. This is Kenneth Foster on death row, interviewed by Renee Feltz, as they spoke on the phone through the glass.

KENNETH FOSTER: I would definitely like to get out there and do a lot of organizing with the guys out there. These guys are out there. You know, death row is kind of a curse and a blessing, because due to being on death row we’ve come across people all across the world and different types of support. You know, I like to look at what Nanon Williams is doing. Nanon Williams was on death row, and he was a juvenile, and he got commuted to life. And he’s down on [inaudible] unit, out there organizing and holding educational classes and things like this.

I mean, I would very much like to get out there and maybe start up something like a printing press. You know, you’ve got so much talent in here. You know, I mean, guys really have done something with themselves, and I really think that they need to be heard. I would like to do something like a press, you know, where I can get these guys work out there, just kind of show guys, man, that they got to get past all this racism, all the segregation, you know, the whole gang mentality. You know, we got to reform them out of this.

And they need somebody. You know, it always takes one person. You know, you look at somebody like George Jackson, he was one man. You know, Malcolm X is one man. You know, these were individuals that totally changed history. They changed it, just being one person. And I believe — you know, there’s a quote that says, "One man with courage can be a majority." And I think that applies to myself. And that’s what I would like to do out there, you know, show these guys, you know, you got to reach for more.

And, see, the system likes that. They like to keep them discombobulated, keep them fighting, keep them off their toes, so they can’t unite. That’s what they wanted to do with DRIVE. They want to break us down, you know, ban our family members and all this type of stuff here, you know, to keep us off our toes.

And so, I mean, I know that if I was out there, that’s definitely what I would be doing. I mean, I would be a servant. I would be giving back. I mean, that’s all I’ve been doing for, you know, many, many years of my life here. I mean, I’m dedicated to activism. I mean, it’s in my heart. I’ve found that that’s been my calling. And, I mean, even as a little boy, you know, now that I look back, you know, when I was in the church and doing the Easter plays and the Christmas plays, and I would get up there and do this, this, that and the other, you know, I see that that’s something that I should have been doing. And, you know, I had to come here to see that that’s what I need to be doing. So if I was out in the population, I would definitely be pushing for that.

AMY GOODMAN: Kenneth Foster on death row, slated to die three weeks from today. And that does it for our broadcast. Renee Feltz says he will nonviolently resist.

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