Well, apparently not.
Steve Verdon at Outside the Beltway writes that:
Kenneth Foster is innocent of murder. Even the State acknowledges this fact, but in three weeks Foster will be executed for the murder of Michael LaHood. Consider this another installment of "Our Stupid Judicial System."
His source is The Nation, which maintains that the convict, one Kenneth Foster, has been sentenced to die for a murder which took place 100 yards away from him.
the controversial Texas state “law of parties,” under which the distinction between principal actor and accomplice in a crime is abolished. The law can impose 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, Brown, left the car, got into an altercation and shot LaHood dead. 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.
Well, that sounds absolutely Gilbertian:
"Unfortunately, the code of the Mikado has no provision for 'not knowing', or 'having no idea', or 'not being there'."
Beldar thinks he sniffs some anti-death penalty bias in the story. First, there's a gratuitous reference to Foster's race – the only such reference in the cited article. Second:
...read the last sentence of that quoted paragraph. What kind of statute could the "this statute" reference be to, such that it even potentially could be applicable nationwide in defining what is or isn't murder? Well, yes — Texas is the only state in the Union that applies the Texas felony murder statute. In Florida and Arizona and a bunch of other states that follow the traditional felony murder rule, they apply their own state statutes (some of which are very comparable, and others less so).
But of course, you spotted that, didn't you? Any crime show junkie knows that there are lots of ways you can wind up guilty of murder even if you never touched the victim, or even if you never intended there to be a victim in the first place.
Then Beldar (linked above) cheated.
He read the fifth circuit appellate decision.
During the guilt/innocence phase of Foster's trial, Steen testified he rode in the front seat, looking for potential victims, while Foster drove. Steen and Brown testified to robbing two different groups at gunpoint that night; the four men divided the stolen property equally.
Some people might have been clued in by this behavior that a crime was going on.
The Court also found that...
...Foster could not have helped but anticipate the possibility that a human life would be taken in the course of one or more of his co-conspirators' armed robberies. By transporting a pair of pot-smoking armed robbers to and from one robbery after another, Foster clearly displayed the type of "reckless disregard for human life" the Supreme Court had in mind when it employed that term in Tison. Foster knowingly engaged in criminal activities known to carry a grave risk of death ....
in summary, the court found that Foster:
(1) actively participated in the group's robberies; (2) knew members of the group were using a gun to commit them; (3) shared the proceeds from them; (4) was the getaway driver; and (5) expressed no remorse when Michael LaHood was murdered. [Additionally,] after Brown shot Michael LaHood, Foster "drove him away ..., all the while telling Brown to hide the gun"; further, when police pulled over the vehicle, Foster encouraged Brown to hide the gun in his underwear.
Beldar's comment on this is:
In the meantime, I wish the opponents of capital punishment like Mr. Rothberg would quit lying by omission, trying to make someone like Foster look like an innocent bystander randomly sentenced to death by those fiends down in Texas just because he's black. Your dishonesty does your cause a disservice, and thereby ultimately makes you into an enemy of those on death row.
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