Perry commutes death sentence

From Staff Reports

Governor Rick Perry commuted the death sentence of a San Antonio man yesterday after accepting a recommendation from the Texas parole board to give him life in prison.
Kenneth Eugene Foster was scheduled for execution late Thursday evening.
In 1997, Foster was sentenced to death for his role in the 1996 capital murder of Michael LaHood. However, Foster sought to have his death sentence commuted to a life sentence after claiming he was merely the getaway driver.
According to court records, Foster said he drove his friends around San Antonio in a rental car and robbed at least four people before the slaying of LaHood
“It was wrong,” Foster said recently from death row. “I don’t want to downplay that. I was wrong for that. I was too much of a follower. I’m straight up about that.”
Their robbery spree, while they were all high on alcohol and marijuana, turned deadly when Foster followed LaHood home. One of Foster’s passengers, Mauriceo Brown, jumped out, walked up to LaHood, demanded his wallet and car keys, then opened fire when he couldn’t produce them. LaHood died instantly.
Brown ran back to Foster’s car and they sped away. Less than an hour later, Foster was pulled over for speeding and driving erratically. Foster, Brown, Dwayne Dillard and Julius Steen – all on probation and members of a street gang they called the Hoover 94 Crips — were arrested for the slaying.
Brown and Foster, tried together, were convicted of capital murder and sentenced to death. Foster was set to die 13 months after Brown. Foster’s execution would have made him the third Texas prisoner executed in as many days and the 24th this year in the nation’s most active capital punishment state. Foster’s scheduled execution piqued death penalty opponents who criticized his conviction and sentence under Texas’ law of parties, which makes non-triggermen equally accountable for the crime. Foster would join a number of other condemned prisoners executed under the statute, including one put to death earlier this year.
“After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment,” Perry said. “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 parole board voted 6-1 to recommend commutation, and Perry signed the commutation papers Thursday morning.
Perry’s action means Foster’s sentence will be commuted to life imprisonment as soon as the Texas Department of Criminal Justice can process this change
Perry was not obligated to accept the highly unusual recommendation from the board whose members he appoints. The commutation is the first in his more than eight years in office this close to an actual execution. The board decision was announced about seven hours before Foster was scheduled to die. Perry’s announcement came about an hour later.
“This is a new low for Texas,” said Larry Cox, executive director of Amnesty International USA, a human rights organization that opposes the death penalty in all cases. “Allowing his life to be taken is a shocking perversion of the law.”
In other news, the American Bar Association is taking issue with proposed regulations to implement a statute that offers states a drastically streamlined habeas corpus review in death penalty cases in exchange for improvements in their post-conviction defense process. In comments filed this week with the Department of Justice, the ABA said the proposed rule ignores key parts of the authorizing legislation and fails to follow what Congress outlined.
 At its core, the rule fails to abide by this compromise and would allow states to obtain streamlined review without ensuring that capital defendants receive competent counsel  in post-conviction proceedings, according to ABA officials.
The comments were filed in response to proposed rulemaking regarding the Certification Process for State Capital Systems.  ABA’s concerns included what it believes is a disregard for significant aspects of the implementing legislation. Specifically, the rules could result in the appointment of any counsel, rather than expressly calling for competent counsel to represent capital defendants in their appeals.
ABA officials said the rules also ignore statutory requirements that make it clear which defendants would face streamlined review, fail to establish uniform standards for states seeking certification, allow for ex parte communications between the attorney general and the state applicant, fail to provide  public scrutiny of public application claims and lack safeguards that enable state decertification.
 “The proposed rule proscribes no content for a state application other than an ‘attestation’ that the applicant is an ‘appropriate state official’ and an ‘affirmation’ that the state has provided notice of the request to the chief justice of the state’s highest court,” said an ABA spokesman. “By opting to fail to specify the requirements of the application, the Justice Department has proposed an unworkable mechanism that will result in arbitrary and capricious agency action. The proposed rule should require the state applicant to proffer some evidence that the state’s mechanism actually results in the appointment of competent post-conviction counsel to indigent capital defendants, the standards of competency for the appointment of counsel and the mechanism for compensation and expense reimbursement for counsel.”
 The association also recommended that the ABA ’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases be incorporated into the evaluation process in order to add objectivity to the process.
The Associated Press contributed to this story.