I'm writing you this open letter to suggest that you provide clemency to Kenneth Foster, Jr., who is scheduled for execution soon. However I think you should do so for reasons which likely disagree with the Texas Moratorium Network, which is asking folks to send letters in support of commuting Foster's death sentence.
Instead, I think that from your perspective as death penalty supporters, it's paramount that the punishment be reserved for those who actually committed the crimes of which they're accused. Not even prosecutors believe Kenneth Foster pulled the trigger; that person was himself executed last year, so the crime has already been avenged. The issue is whether Foster, the driver, knew what the shooter planned.
Three judges on the Texas Court of Criminal Appeals agreed that "the applicant has identified new facts that might support a bare claim of actual innocence, under Ex parte Elizondo, (3) and would therefore allow the applicant to proceed on his fourth claim for relief." These judges would have granted him a stay of execution "to allow him to pursue this claim through the ordinary course of habeas corpus proceedings." (Here is the dissenting opinion written by Judge Tom Price and joined by Judges Charles Holcomb and Cheryl Johnson.)
The minority opinion states, that based on the new evidence "it appears evident that the applicant could not be guilty of capital murder under either of the theories of the law of parties that were submitted to the jury."
The problem with the CCA majority opinion is that they refused to address new facts, or minority arguments, apparently relying on a narrow statutory interpretation to say they cannot consider new evidence of any stripe, even if it points to innocence! Consider the arrogant brevity of the majority opinion, which decided against the defendant across the board but addressed none of the arguments substantively, in a death penalty case, no less, in the face of actual innocence claims! Indeed, this open letter to you may be longer than the court's opinion.
Gov. Perry and Chairwoman Owens, the Texas Court of Criminal Appeals has abdicated its responsibility in this case, as it has now many times before. Texas Monthly called it the "worst court in Texas," and these kind of decisions explain why.
If you support the death penalty and want to retain Texas' authority to exercise it, I suggest you stop Kenneth Foster's execution. The US Supreme Court has used the CCA's contorted (or in this case non-existent) legal reasoning to justify banning execution of those who commit crimes as juveniles or who have low IQs. Now the CCA majority is pressing the envelope once again in ways that invite a federal backlash.
I think you need to seriously consider the possibility that if Texas begins approving executions in the face of evidence of actual innocence, we may see a court-ordered moratorium in this state. Executing people who may be "actually innocent" without reviewing the evidence leaves an air of uncertainty around the death sentence, and could even turn the public against the practice. Right now they support it, but they won't if provably innocent people are killed.
Increasingly I've come to believe that, if the death penalty is ever abolished, at least in this state, it will not be because its opponents succeed politically but as a backlash to its overzealous implementation.
Foster is not blameless for his actions that night, but it seems highly likely that capital murder was not among the crimes for which he is culpable. Indeed, the minority opinion did not suggest releasing Foster, who was 19 at the time of the alleged offense, but granting him habeas relief and a chance to have his innocence claims and new evidence tested in court. He deserves that chance before he is killed in the name of the state.
Thanks for your time, and I hope you'll do the right thing.
See more info about Kenneth Foster's situation at www.freekenneth.com, or contact the governor's office and the Texas Board of Pardons and Paroles to object to the execution of Kenneth Foster Jr.
Gov. Rick Perry
Mail: State Capitol, P.O. Box 12428, Austin, TX 78711-2428
E-mail: Use the form at www.governor.state.tx.us/contact
Texas Board of Pardons and Paroles
Mail: P.O. Box 13401, Capitol Station, Austin, TX 78711