Unless the Governor of Texas intervenes, the State will execute a person who did not commit or plan a murder. Everyone agrees that Mr. Foster did not kill anyone, nor did he participate in the killing in any way except for being present and then trying to get away from the crime scene. Only in Texas could this happen because of a unique provision called the law of parties.
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The death penalty is supposed to be reserved for the "worst of the worst." I interpret this phrase to mean that by presenting the aggravators and the mitigators, juries are supposed to weed out those individuals whose prior criminal history or whose crime really stands out from other homicides. While this cases constitutes a felony-murder, perhaps what stands out is that the victim was the son of a prominent citizen in the community. While a real test of this definition is not possible without some sort of proportionality review, it seems that the current case of Mr. Foster does not meet the "worst of the worst" standard.
The State agrees that Mr. Foster did not pull the trigger. He was driving the car in which three other individuals were riding, including the shooter who has already been executed. The evidence suggests that these individuals were smoking pot and had already committed several armed robberies. Under the doctrine of the law of parties, Mr. Foster should have know that the victim was about to be robbed and murdered by one of his accomplices.
The defense asks how Mr. Foster is supposed to have known this? And a federal judge agreed, only to be overturned on appeal. Question - since the earlier victims were not shot, how was Mr. Foster to know that the eventual victim was going to be shot even if he did know (conflicting evidence on this point) that he was going to be the victim of a robbery?
This issue aside, it seems clear from the evidence that Mr. Foster is not among the "worst of the worst" and that his death sentence is disproportionate, even in Texas.
For additional information on this case, please link to http://savekenneth.blogspot.com/.