The struggle that saved Kenneth Foster

By: Lily Hughes and Bryan McCann

Austin Abolitionists

It is an unspoken assumption among many in the abolitionist community that Texas is a lost cause. A state that has executed over 400 people since 1982 does not give one much cause for optimism.

However, on August 30, 2007, the Save Kenneth Foster Campaign proved otherwise. After a summer of struggle, we stopped Kenneth’s execution on the very day it was to take place. We also made a bold statement about what is possible in Texas and the kind of movement we need to end the death penalty.

Kenneth Foster Jr. was sentenced to death in 1997. He killed no one.

While there are innocence claims on death rows across the nation, Kenneth’s case is different. No one disputes that he did not shoot Michael LaHood Jr. on August 14, 1996. Mauriceo Brown did, and he was executed for the killing in 2006. However, Texas is unique among death penalty states in its use of the “Law of Parties.” This statute enables prosecutors to seek the death penalty against individuals for the crimes of others on the basis of their presence.

On that night in 1996, Kenneth was driving his grandfather’s rental car around San Antonio. With him were Mauriceo Brown, Dewayne Dillard and Julius Steen. Near the end of the evening, Brown exited the car and shot Michael LaHood.

Because the men in the car had been involved in two robberies earlier that evening, prosecutors argued that Foster should have anticipated harm would come to LaHood. With Steen testifying for the prosecution in order to receive a lighter sentence, both Mauriceo and Kenneth—who were tried together—were sentenced to death.

Since the trial, Brown, Dillard and Steen have all sworn that no one in that car, least of all Kenneth, had any reason to anticipate a robbery or a murder when Brown left the car in front of the LaHood residence. There was no conspiracy. As Kenneth’s attorney Keith Hampton has noted on many occasions, convicting someone under the Law of Parties when there was no conspiracy is unconstitutional.

This is, however, Texas. Though Kenneth’s sentence was once thrown out by a federal judge, the Fifth U.S. Circuit Court of Appeals reinstituted it, while at the same time acknowledging the constitutional defect in the original conviction.

The legal system had, in no uncertain terms, failed Kenneth. After the Texas Court of Criminal Appeals denied Kenneth’s final appeal, even his lawyer became convinced this was a political, and not a legal, fight.

Kenneth’s case was unique in other ways as well. First, Kenneth was very lucky to have the unwavering support of his family. Shortly after he was sentenced to death in 1997, his grandfather Lawrence began contacting activist groups like the Campaign to End the Death Penalty (CEDP), telling anyone who would listen about his grandson’s case.

Kenneth’s own activism on death row as a founding member of the DRIVE Movement also drew activists to his case. As he became politicized under the worst of conditions, Kenneth was quick to reach out to activists like Mario Africa, the Welfare Poets and the CEDP.

Another important strength of the Save Kenneth Foster Campaign was the excellent relationship we had with Kenneth’s lawyer, Keith Hampton. The legal community does not always agree with the idea of building visible protest campaigns around death penalty cases. Shortly after Kenneth received his execution date, we began corresponding with Keith. We agreed that we needed to have a visible campaign that would highlight the message that no one should be put to death for being in the wrong place at the wrong time.

The work that the CEDP and the anti-death penalty community in Texas have done over the years also made a difference. Our previous work around specific cases, working with family members and in coalitions, were key elements to building a successful campaign.

So last spring, when we learned Kenneth had a date, the CEDP was able to call for a meeting to kick off the Save Kenneth Foster Campaign, drawing Kenneth’s family, his legal team, including his civil attorney Mary Felps, and other activists into a summer-long struggle for Kenneth.

Following some heated debates about strategy and tactics, the Save Kenneth Campaign was able to unite around the slogans of “On Death Row for Driving a Car” and “Wrong Place, Wrong Time” in order to convey the idea of the Law of Parties.

Kenneth was involved in all of the debates, putting forward ideas for our political message as well as about possible events. Through letters and visits, we were able to have Kenneth’s input into the campaign at every step of the way.

Throughout June, the group held weekly meetings to work on outreach to media and the public. We pursued outlets like Democracy Now! as well as mainstream media in Texas and nationally. We held a petition and letter drive and did fundraising, including a campaign of speaking in churches and gathering signatures and money after services. We held tables and took petitions, fact sheets and leaflets to any event we could think of in order to spread the word.

We also set out a plan of activist events and quickly began building a statewide rally for July 21 that drew hundreds to Austin to march for Kenneth. Featured speakers were Mario Africa of MOVE in Philadelphia and Shujaa Graham, an exonerated death row prisoner from California. Kenneth’s father and grandfather spoke, and the event was emceed by Kenneth’s cousin, Beverly Fisher.

Members of the New York City-based hip-hop group the Welfare Poets and friends of Kenneth performed, including exonerated Illinois death row prisoner and blues musician Darby Tillis. The rally also featured a brilliant speech and dance performance by Kenneth’s 11-year-old daughter, Nydesha Foster.

Nationally, the CEDP coordinated a phone jam for July 20 to coincide with the rally.

This rally really kicked off our media campaign. We began to get a lot of coverage. Throughout the summer, we garnered favorable editorials in almost all of the major Texas newspapers and had a continued presence on local television news, plus Web sites like Yahoo News, and

Democracy Now! featured Kenneth’s case as a news item, and later dedicated an entire show to his story. By the end of the summer, the Nation magazine had picked up the story, as well as ABC News, BET News, Court TV and the New York Times.

In early August, we learned that the Texas Court of Criminal Appeals had denied Kenneth’s final appeal, and we began to focus more earnestly on the Texas Board of Pardons and Paroles and Gov. Rick Perry.

In Texas, the governor cannot grant clemency without a recommendation from the Board of Pardons and Paroles. The board is appointed by the governor and is made up of seven members who never meet, send in their votes by fax and rarely make a recommendation for clemency.

On August 14, the Austin CEDP chapter hosted a forum titled “Fighting to Save Kenneth Foster: Family Members Speak Out!” Over 50 people attended.

We next held an event in San Antonio on August 18 featuring several hip-hop acts from San Antonio, and political speakers such as Mario Africa of MOVE. The highlight of the evening was a performance by Kenneth’s wife, Tasha Narez-Foster, performing the song she wrote for Kenneth “Walk With Me.” Nydesha Foster also rapped on the song, and the performance brought many of us in the audience to tears.

On August 21, we held an emergency rally for Kenneth that drew over 200 people. The rally included civil disobedience in solidarity with the protest being launched by Kenneth and other death row inmates inside the walls. A small number of activists sat in front of the gates to the Governor’s Mansion, demanding that the Governor personally receive letters written by Kenneth’s family asking him to stop the execution.

The crowd kept up an energetic rally chanting throughout. Although dozens of state troopers surrounded the folks sitting in at one point, they decided not to make any arrests. Instead, they let us take over the busy city street in front of the gates for over two hours.

This prompted participants to conclude that Perry would rather have a large crowd breaking the law in front of his home than to actually answer to the family of Kenneth Foster. Chants of “Governor Perry, you’re a coward!” followed, and the rally broke up with no arrests, but on a high note of having taken the streets for Kenneth.

We were back at the governor’s mansion on Saturday, August 25. About 70 people held a long chain of all the signed petitions and also a long banner papered with hundreds of clemency letters. This time, Perry drove out of the mansion, so we know he saw us!

The next day, a small group of activists took the petition and letter chains to Perry’s church in a posh west-Austin neighborhood. We held the displays and let Perry’s fellow congregation members know about the Kenneth Foster case.

Finally, we planned to have a press conference and rally to respond to the recommendation by the Board of Pardons and Paroles. Earlier in the summer, members of the board had met with Kenneth, a highly unusual move. And on Monday, August 27, the board took testimony from Kenneth’s family, also highly unusual.

The board was expected to put out its recommendation on Tuesday. It then pushed the announcement to Wednesday. The state had already carried out an execution on Tuesday night, with another scheduled for Wednesday, and Kenneth’s scheduled for Thursday. Protests were scheduled for Wednesday during the day in Livingston outside the death row unit, and for Wednesday night in Huntsville, where executions take place.

John Joe Amador, whose execution was planned for Wednesday night, was also participating with Kenneth in protests against their planned murders.

With Kenneth’s scheduled execution only one day away, folks were feeling nervous, tense, excited and scared. One minute we were up, the next we were down.

On Wednesday night in Austin and Huntsville, dozens of people gathered to protest for John Joe Amador and to hear the Board of Pardons decision. But by 6 p.m., the board had still not made an announcement. We also learned that the state would carry out the execution of John Joe Amador that night.

Most people were planning to go to Huntsville on Thursday to protest the murder of Kenneth Foster. Family members and some activists were already there—some were taking part in final visits.

On Thursday morning, five of Kenneth’s family and friends were preparing themselves to have to witness the horror of his state-sponsored murder. Everyone was on edge, speculating about what the board and Perry would do.

Around 11 a.m., as many of us prepared to get in our cars to go to Huntsville, we learned that the board had voted 6 to 1 in favor of commutation. Not just clemency or a stay, but commutation!

Now it was up to the governor. And the only other time the board had recommend clemency, Perry had let the execution go forward.

Finally, around 12:15 p.m. on August 30, we got news that Perry had commuted the sentence. Kenneth was given a sentence of life, and in addition, the governor used his statement to criticize the way cases are prosecuted in Texas.

Those of us in Austin started gathering together, overwhelmed with joy and relief. We called down to the friends and family in Huntsville and had incoherent conversations that featured a lot of excited shrieking and tears of joy.

Dozens of family and supporters gathered at the mansion that afternoon to respond together to the news. There, we talked about the victory we had won, how the struggle wasn’t over, and how we could take this victory with us into the ongoing battle against the death penalty. Later, we had a big celebration party and danced the night away!

The Board of Pardon and Paroles and the Governor had received over 11, 000 letters calling for clemency. President Jimmy Carter, South African Archbishop Desmond Tutu and actress Susan Sarandon had all come out for Kenneth. Sportswriter Dave Zirin had organized a statement from Jocks 4 Justice, a group that includes Olympic medal winners and pro sports players.

The New York CEDP chapter had organized meetings, protests and press conferences, and were an integral part to the media campaign from the very beginning. CEDP chapters in Chicago and D.C. organized rallies for Kenneth. People called, faxed, wrote and e-mailed from all over the world in support of Kenneth.

Texas is known as the “belly of the beast” when it comes to executions. Rick Perry has never granted clemency before, unless the courts had effectively made the decision for him. Under Perry, over 160 people have been executed, exceeding the number carried out by his predecessor, George W. Bush, who oversaw the execution of 152 people. During his tenure as Texas governor, Bush only granted clemency one time on the recommendation of the parole board.

For those of us fighting around single cases and against the death penalty in Texas, there have been very few victories. Yet our movement here was able to save the life of Kenneth Foster, Jr. We showed the Texas death machine is vulnerable to pressure.

New studies show that support for the death penalty has been steadily declining for the last 20 years. Even in Texas, there has been a decline in support for capital punishment. Texas courts have been repeatedly rebuked by higher courts for their rulings on a number of death penalty appeals.

It is in this climate that we were able to build a successful activist campaign, which not only saved Kenneth Foster Jr. but also won a historic victory against the death penalty. The Austin CEDP is prepared to take the momentum of this victory into our ongoing fight against the death penalty in Texas.

Kenneth has always recognized the importance of the larger struggle. In a message written shortly before he was scheduled to die, he told his supporters: “Regardless of what happens to me, the Law of Parties still exists. I need you all to realize that I am not the only man on death row sentenced like this, and it would be a grand insult to me and my plight if the fight against the Law of Parties stops with my case. PLEASE do not do me like that.”

Kenneth, we will not do you like that! We will keep on fighting against unjust laws, to save people’s lives, and to end the death penalty in Texas and everywhere!