Kenneth Foster is scheduledto be executed August 30 for the 1996 murder of Mike LaHood. Foster, the driver but not the shooter, was convicted under Texas’s controversial Law of Parties, as were more than 80 current death-row inmates. Local criminal-defense attorney Rusty Guyer, who has tried four capital-murder cases, put it into laymen’s terms for the Current.
The classic deal is, “Elaine, let’s go hit the 7-11.” “OK,” and you drive the car. So I’ve got the gun, I go in, and kill the cashier. So `you say,` “What the fuck are you doing?” That’s criminal responsibility.
As a criminal-defense attorney, what is your perspective on that?
I think that there’s a natural reaction, and it falls one of two ways: Well, he was in on the robbery but he wasn’t in on the death. And then it’s like, in for a penny in for a pound. And even though there wasn’t a contemplation of killing anyone, and it wasn’t discussed, and it wasn’t his idea, nor did he participate, he wasn’t the trigger man, they were joined together in committing robberies.
If I understand the order of events right, this was a `separate` altercation. They were saying `the gunman` got into a fight with this woman’s boyfriend, but it wasn’t one of their planned robberies.
When you have people that are engaged in a spree, it’s hard to really gain some sympathy for them. However, the pitch for anyone defending somebody `is` saying why should he be put to death? Life imprisonment for conviction of capital murder where he’ll serve at least 30 years is a severe penalty. Why the ultimate penalty for somebody who did not actually kill somebody?
Folks who are opposed to the Texas Law of Parties say that the way Texas applies this law is not constitutional because we’ve set the bar so low for complicity.
In setting a standard that is so low, look at our record. We are the execution champs, and I think that speaks to the Law of Parties and it comes back to, this penalty as it is on the books is supposed to be used for the worst and most heinous crimes involving the death of another. There was a time when any number of offenses could result in the death penalty, and of course now you have people talking about if you have repeated child abuse, recidivist child abuse, speaking of the death penalty. I guess what I’m struggling with is, this is a mindset that so many of our fellow citizens have, and they voice that.
When it comes down to who’s gonna serve on the jury, in order to qualify to serve, you have to be able to follow the law, and the law says you can put somebody to death. So you begin with 12 jurors who believe that this can happen. It’s really a question of legislation and not the application, because the application is, here it is, the legislature’s passed that, that’s the law, and if they say it’s OK, and the judge tells me that’s the law, you’re gonna get 12 jurors who say yes, I can follow that law.
It must be difficult to get in front of a jury and argue some of these intangibles, like to what extent someone was conscious of their companion’s plans.
District attorneys rarely try a close capital-murder case, unless they’re just absolutely forced to do so. The ones are: the people have given a confession. The evidence is just overwhelming, and you have the worst of the worst, and it’s really a matter of what else is a jury going to do. It’s just getting up and begging for someone’s life: That they’re young, that they’ll spend so many years in prison and never be a danger to anyone. I think to even seek the death penalty on a person on the Law of Parties, unless you truly had, let’s say, a smart, manipulative individual who coaxed, aided, and encouraged some other dumb hothead to kill somebody ... one of the difficulties that I have is that I believe it is so barbaric, and it is so clear to me that this is nothing more than just the most base revenge, and it is also a matter of almost human sacrifice. It’s kind of like, oh gosh, look at the crimes and ills that we have, and so the government executes so many people and that’s supposed to make us feel better, it’s supposed to make us believe that we’re fighting crime, it’s supposed to make us believe that tomorrow is gonna be a brighter day. •