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Monday, August 13, 2007

Is Texas about to execute Kenneth Eugene Foster just because he was an "innocent bystander" to a murder? (Important update at end!)

This post by Steve Verdon at Outside the Beltway, like the Radley Balko link he provided, and like the op-ed from The Nation's Peter Rothberg that Balko linked (and Verdon quoted from), all seriously chap my behind. Here's Verdon's entire post:

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."

LaHood’s actual killer, Mauriceo Brown, was executed in 2006. Foster, who was in a car about 100 yards from the crime when it was committed, was convicted under 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.

Now, if someone has principled opposition to the death penalty in all forms no matter the crime, that's one thing. If someone wants the U.S. Supreme Court to re-read the Eighth Amendment (again) to constrict the operation of the felony-murder rule in capital cases, that's at least an honest viewpoint (if, in my view, badly wrong). But these are just gross distortions, originally promulgated by capital punishment opponents, and then willingly swallowed wholesale and republished by people like Verdon and Balko who ought to know better. Instead, they've made themselves chumps for propagandists who are both willing and eager to tell lies by omission.

[Update (Mon Aug 13 @ 11:10pm): Prompted by this post from Patterico, let me make clear that I don't think either Verdon or Balko are "chumps" generally. I agree with the former often, and with the latter more than occasionally, and I respect both as a general matter, but I expect better of them than that they swallow this sort of stuff uncritically, which I think they must have done here. Also, I note that The Nation's online home page links to this op-ed with the blurb (italics mine): "Texas' insane capital punishment guidelines have condemned a man to death for witnessing a murder." One can't really blame whatever editor wrote that, however, since that's the logical reading of the facts Rothberg chose to include. — Beldar]

Here's a couple of hints that the op-ed is written with a bias and by someone who either knows or cares not about an honest discussion of capital punishment law: First, in the first sentence of the op-ed (which Verdon didn't quote), there's a gratuitous reference to the fact that Foster is black. There's no mention of race anywhere else in the op-ed, nor any issue about his race in the case. It's just a gratuitous detail inserted solely to play on regional bigotry and the assumption that, yup, all us Texans are racial bigots, happily convicting and executing our black folks without much regard to anything but their skin color. 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).

To his credit, OTB top blogger James Joyner added a couple of useful updates to Verdon's post to suggest that there might be more to the story, and for a non-lawyer, he did a fine job — identifying one of the two key SCOTUS precedents on point, and questioning the ridiculous assertion that no other state besides Texas permits executions under the felony murder rule.

I decided to look more deeply, however, and sure enough, the Fifth Circuit's opinion in Foster's case deals explicitly and in detail with all of this: Foster v. Quarterman, 456 F.3d 359 (5th Cir. 2006), cert. denied, __ U.S. __, 127 S. Ct. 2099 (2007).

Let's start with the "Foster was just driving, Brown got out of the car and got into an altercation 100 yards away" version. Here's how the Fifth Circuit describes the actual crime, based on the trial record (boldface mine):

On the evening of 14 August 1996, Foster and three others — Mauriceo Brown, DeWayne Dillard, and Julius Steen — embarked on armed robberies around San Antonio, Texas, beginning with Brown's announcing he had a gun and asking whether the others wanted to rob people: "I have the strap, do you all want to jack?" 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. The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by Mary Patrick.

Patrick testified: she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster's vehicle turn around and stop in front of Michael LaHood's house; Patrick approached Foster's vehicle to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster's vehicle and approach her and Michael LaHood; Michael LaHood told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael LaHood's face, demanding his keys, money, and wallet; Michael LaHood responded that Patrick had the keys; and Patrick heard a loud bang.

Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the night's earlier robbery victims.

(Apparently The Nation's Mr. Rothberg thinks that if your very diligent and accomplished armed robbery co-conspirator travels more than a few feet from the getaway car you're driving before he caps your joint robbery victim at point-blank range, that gets you off the hook. Sort of like you can't get XP in World of Warcraft if the other members of your party are too far away.)

Dr. Joyner [update: prompted by comments from Mr. Verdon, see comments below] was correct that Enmund v. Florida, 458 U.S. 782 (1982), is an important part of the governing precedent, but it has to be read against Tison v. Arizona, 481 U.S. 137 (1987). Tison permitted the execution of a capital defendant who was guilty of murder only under a "felony murder" theory, holding that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement."

Under a trio of Supreme Court cases decided between 2000 and 2004 (Apprendi v. New Jersey, Ring v. Arizona, and Blakely v. Washington), a jury — not a judge or appellate court -- is now required to make both of those determinations.  However, those cases were not retroactive, and Foster's crime was in 1996.

The Fifth Circuit searched the entire record of the state-court proceedings to see whether any state court had made the requisite Tison/Enmund findings.  Like the federal district court, it quickly concluded that the trial jury had indeed made a finding of at least recklessness because it had affirmatively concluded, in answering one of the verdict questions, that Foster actually "anticipated that a human life would be taken." There was ample evidence in the record to support this conclusion by the jury. As the federal district court had written:

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 ....

So the jury was presented with, and the jury deliberately rejected as a factual matter, Foster's "I didn't realize anyone might be shot" pitch.

As to the "major participant" prong, the federal district court had agreed that there was ample evidence from which a jury could have made such a finding, if it had been asked that question in those words:

[W]hen arrested, Foster had a pair of cellular telephones from robberies committed a few nights before the murder of Michael LaHood; on the night Michael LaHood was killed, Foster drove his co-defendants around neighborhoods with which he was familiar; he shared in the proceeds of the night's earlier robberies; no evidence suggested anyone directed Foster "to take up his extended pursuit" of Mary Patrick's vehicle as she drove to Michael LaHood's house; and Steen believed Foster was in charge that night because he controlled where the conspirators drove and when they stopped.

Moreover, in summarizing the evidence against Foster, the Texas Court of Appeals had written (emphasis mine) that he

(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.

The Texas Court of Criminal Appeals had also noted that "a day or two before Michael LaHood was murdered, Foster, Steen, Dillard, and Brown had participated in another armed robbery; and, previously, Foster and a friend shot at people in a truck while driving alongside them on a highway."

Given the Fifth Circuit's disagreement with the federal district court as to whether only a specific jury finding of "major participation" was required to uphold the sentence, the Fifth Circuit held that the federal courts are bound by the findings of the Texas Court of Criminal Appeals on that subject.

There are reasonable grounds for argument as to whether, even given the non-retroactive nature of Apprendi and its progeny, the Fifth Circuit ought to have given this deference to the Texas Court of Criminal Appeals' opinion. The Fifth Circuit opinion does a sort of "See, here's how the SCOTUS picked and chose among record facts and appellate-court characterizations of them in Tison, and that's what we're doing too" routine that I find not terribly convincing. My guess, without having read the cert petition, is that that's what Foster's lawyers concentrated on as well, but they obviously couldn't get four votes for SCOTUS review. And if you want to write an outraged op-ed about that, then fine. [Update: See my extended wee-small-hours update below for more about this.]

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.

And Messrs. Verdon and Balko — grow some B.S. receptors, please? If you're going to post about a case like this one, at least read the danged opinion whose results you're condemning first, okay?


UPDATE (Tue Aug 14 @ 2:30am): I'm sufficiently troubled by Judge Barksdale's opinion for the Fifth Circuit panel to conclude that, had I been on the panel, without more than the explanation contained in his opinion, I would not have joined in it.

The problem is this: If you were to ask any of the Texas state-court judges — at the trial-court level, on the Texas Court of Appeals, or on the Texas Court of Criminal Appeals — the following question, I'm concerned that they'd have no answer: "Where exactly in the record is a specific finding, either by the jury, the trial court, or an appellate court, establishing Foster's 'major participation in the felony committed'"? Rather, I suspect they'd say, "Well, actually, we didn't make a finding on that one way or the other. That would have been for the jury to do, if anyone."

Yes, on this record, a jury clearly could have so found. Indeed, it's very, very hard to imagine that any rational jury would have failed to so find. Note that the relevant "felon[ies] committed" were the armed robbery and the conspiracy to commit armed robbery of LaHood — not the murder. Foster was up to his eyeballs in the plan to rob. But Foster's jury didn't find Foster guilty of "major participation in the felony committed" — not in those words — because it wasn't asked to.

On the other Tison component — "reckless indifference to human life" — I'll buy into the panel's conclusion that the jury's determination that Foster "anticipated that a human life would be taken" logically compels the conclusion that he was recklessly indifferent to human life. And according to a dissenting opinion from the Texas Court of Criminal Appeals: "The jury was also expressly instructed that should it find that in killing LaHood, Brown 'was acting independently of [Foster] in the commission of the offense of robbery,' it should acquit [Foster]." That certainly further ties Foster in.

And it's also true that, under the AEDPA, federal courts are supposed to defer to state appellate court factual findings just as they defer to state trial court findings. The bold-faced language from the Texas Court of Criminal Appeals opinion that I quoted above in my original post (before this update) is close. But it's not quite a cigar. It's just barely conceivable to me that a jury might have found that Foster "actively participated," as the Court of Criminal Appeals wrote, and that Brown was not acting independently of Foster, and that Foster anticipated that someone might well be killed — but that, nevertheless, Foster's active and non-independent participation in the armed robbery didn't rise to the status of "major."

The real problem here, of course, is the SCOTUS making stuff up out of thin air, effectively grafting undefined and ill-considered federal constitutional requirements atop all states' widely varying felony murder statutes, all as part of trying to describe the moving target of the Eighth Amendment in a "living, breathing Constitution." Inhale, exhale, sneeze — it sort of comes down to what Anthony Kennedy feels are the sweet mysteries of life in any given SCOTUS Term. But given that Tison and Enmund are on the books, however, Texas and all the other states probably ought to have rewritten their felony murder statutes to track them. And Texas hadn't, at least when Foster was tried.

This seems, I know, like the narrowest of technicalities that I'm arguing. And indeed, it is. I have no doubt that Foster is a very bad man. Personally, I think it is overwhelmingly likely that if this same jury had been asked, "Was Foster's participation in the felony major?" they would have said that it was.

But that's the thing about due process. You have to dot the i's and cross the t's with the real jury, not with the imaginary one that you or I or Judge Barksdale might conceive. My guess and my doubts aren't what count. Neither are yours. Neither, to a considerable degree, are the appellate courts'.  Given that Tison had been on the books for some years before Foster's trial, someone — court or jury — in the Texas state-court system ought to have addressed its two requirements in those exact (if ill-defined) words. And I don't think either the jury nor any Texas state court has yet done so — not directly, not in anything that can fairly be characterized as a "factual finding." (I frankly doubt that Texas criminal procedure would permit the Texas appellate courts to do so, even if AEDPA would require the federal courts to defer to them if they did.)

Does that mean Foster is "innocent," or that he's being railroaded? Of course not. And I stress that (1) I haven't seen the entire record, and (2) this is, at best for Foster, a very close question. The people whose job it is to make these decisions — a category in which I'm not included — don't agree with me, and the odds are overwhelmingly likely that Foster will indeed be executed before this month is out. But there certainly are better, if vastly more technical and boring, arguments to be made in favor of Foster getting a retrial (limited to punishment) than those which Rothberg advanced.


UPDATE (Tue Aug 14 @ 9:30am): Steve Verdon has linked this post as part of a follow-up in his original post on OTB. Radley Balko has a new post up responding to this one. Mr. Balko seems immune to the concept of regional bigotry and insists that the death penalty is inherently racist, yada yada — all still without a hint that either race or Texas' history actually played any part whatsoever in any aspect of this case. But both writers have acknowledged that the case isn't as Rothberg described it, and I greatly appreciate their civil reponses. There are also some good comments, and some that are merely entertaining, over at Patterico's. If Mr. Rothberg has reacted — and I've left a couple of comments over on The Nation — I'm as yet unaware of it.


UPDATE (Tue Sep 18, 2012 @ 3:00am): I noticed this in the news at the time, but didn't remember to update this post until I came upon it tonight: On August 30, 2007, based on the recommendation of the Texas Board of Pardons and Paroles, Texas Gov. Rick Perry commuted Foster's death sentence to life imprisonment.

Posted by Beldar at 09:04 PM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Is Texas about to execute Kenneth Eugene Foster just because he was an "innocent bystander" to a murder? (Important update at end!) and sent a trackback ping are listed here:

» Kenneth Foster from The Agitator

Tracked on Aug 14, 2007 9:12:37 AM


(1) craig henry made the following comment | Aug 13, 2007 10:44:10 PM | Permalink

Great post.

I'm anti-DP, but there is no point lying about the facts in order to generate outrage as The Nation did.

(2) DRJ made the following comment | Aug 13, 2007 10:55:05 PM | Permalink

Good post. I wonder if Rothberg, Verdon, Balko or the Instapundit will link to it?

And I think it's Radley Balko, not Ridley.

(3) Patterico made the following comment | Aug 13, 2007 10:57:28 PM | Permalink

Nicely done. Though you have to recognize that Verdon's sin is worse than Balko's. Verdon's piece is misleading in and of itself, whereas Balko's post simply links someone else's dishonest piece.

(4) Beldar made the following comment | Aug 13, 2007 11:10:41 PM | Permalink

Thanks DRJ, duly corrected. And yes, Patterico, duly acknowledged.

(5) Patterico made the following comment | Aug 14, 2007 12:34:39 AM | Permalink

Of course, immediately after that, he is guilty of exaggeration in stating:

"Another example of the problems with plea bargaining. Note that in this case, an actual rapist went free because prosecutors strong-armed this guy into a guilty plea."

He provides a link to a story of an innocent man who entered a guilty plea to a rape charge. The story sets forth no evidence that the actual rapist went free "because" of the plea.

I sympathize with the innocent man, of course (who wouldn't?), but that doesn't give us all license to pretend that the actual rapist was on the verge of being arrested and convicted, and escaped punishment only because this guy was convicted. Maybe, and maybe not.

Maybe the actual rapist never would have been caught.

I guess saying that an innocent man spent time in prison and it stopped any investigation into the identity of the real rapist wouldn't have been dramatic enough.

(6) Steve Verdon made the following comment | Aug 14, 2007 12:35:39 AM | Permalink

Technically, I brought up the Edmunds v. Florida reference as well as the exceptions to Edumunds v. Florida.

And yes, the testimony of Mary Patrick is pretty damning in that exiting a car waring a scarf over one's face and carrying a gun isn't what one usually thinks of when a man wants to ask a woman for her phone number.

Still, one thing bothers me. Why didn't Dillard or Steen get tried for capital murder? Seems to me that they just as involved and reckless as Foster.

(7) Beldar made the following comment | Aug 14, 2007 1:54:03 AM | Permalink

Mr. Verdon: Thanks for commenting. Your point that you first brought up both of the relevant Supreme Court precedents in the OTB comments, after your original post, is well taken. I commend you for doing that, and repeat my commendation for Dr. Joyner for his updates to the text of your original post. I'm curious, though: If you were aware of those cases before your original post, why did you uncritically quote Rothberg's nonsense to the effect that Texas is the only state that applies its felony murder statute in capital cases? And if you became aware of them afterwards, why didn't you correct the original post? For that matter, why's the headline to that post still read as it does?

From the Fifth Circuit's opinion (emphasis theirs): "Pursuant to a plea agreement, Steen testified at trial against Brown and Foster; Dillard did not testify." I don't know whether the plea was to capital murder without the death penalty, or to some lesser crime, but that explains Steen.

As for Dillard: "As of the state-habeas evidentiary hearing, Dillard had already begun serving a life-sentence for another capital murder he committed with Steen." My guess is that there was also some sort of plea bargain in Dillard's case, since I can't find a state or federal court appeal from Dillard relating to this incident. But an entirely plausible alternative scenario is that the prosecutors didn't think he was as culpable, as a passenger, as either the driver (Foster), who appears to have stalked these victims for many miles, or the trigger-man (Brown), and that they didn't push for the death penalty against him.

In any event, it's a mistake to presume that all four co-conspirators were absolutely equally blameworthy, or that they must all share convictions for the precise same crimes and the same sentences. Each was entitled to, and got, separate justice; the sort of relativistic norm implied by your question is fundamentally contrary to the individual due process system that we cherish, even though that system quite often produces results that superficially appear to be at odds with one another.

I'm sure the prosecutors would agree with me that wheel-man Foster was less blameworthy than trigger-man Brown. Interestingly, one of Brown's spectacularly unsuccessful arguments in his attempt to avoid the needle, Brown v. Dretke, 419 F.3d 365, 372 (2005), cert. denied, 546 U.S. 1217 (2006), was that "the trial court's failure to sever his trial from Foster's may have allowed the jury to believe that it had to impose the death penalty on Brown, the triggerman, because it had imposed the death penalty on Foster, the less-culpable non-triggerman." But the prosecutors' argument to the jury, which the jury accepted and the courts have upheld, was that Foster was sufficiently blameworthy to justify the death penalty under Texas law, even if Brown was also more blameworthy than Foster.

(8) Scott made the following comment | Aug 14, 2007 7:43:26 AM | Permalink

I found this via Patterico, and since you have a comments section, I could not resist.

I always have a major problem when attorneys discuss issues such as this: it rapidly becomes a discussion of how many angels can dance on the head of a pin.

You correctly point out that the DP rulings depend on the makeup of SCOTUS, and then begin to quote chapter and verse of other rulings that were made by politically and socially opinionated jurists with their own axes to grind.

Which is why people in general distrust lawyers and judges. Justice, to the great unwashed such as my self, seems very simple: What did a person do? In this case, a car full of people, with guns and drugs, tyrannizing the peasants like Visigoths. The unarmed deserve whatever terror can be visited upon them.

And someone gets killed. The solution? Hang as many of them as possible. Okay, there were 4, we are going to execute 2. That solves half of the problem, which is better than solving none of the problem. We, the citizens, have the right to protection from senseless violence. It may not be in the constitution, but it is the very essence of civilization.

(9) Beldar made the following comment | Aug 14, 2007 10:11:39 AM | Permalink

Scott: Thanks for the comment. I hope you'll visit again.

You're right — your solution isn't in the Constitution, and can't be squared with it.

I also concede that the flaw I'm arguing in the Fifth Circuit's opinion necessarily sounds to many folks — including many lawyers — like form over substance, and making certain obscure rituals and magic words and phrases paramount.

But one's view on those obscure rituals and magic words and phrases tends to change when it's one's own neck on the line. (Or one's brother or father or friend.) And some of us who've practiced within the system have seen those obscure rituals and magic words and phrases change outcomes during trials. So we take them seriously.

I believe in capital punishment, and I believe that the system mostly works here in Texas, where it is by no means a remote or theoretical punishment. But I'm big on making the State dot its i's and cross its t's. One of the reasons we have so many executions in Texas is that the courts have required prosecutors to do just that over the last 25 years, and they've gotten quite good at it.

Brown has already been executed. The three of these guys who didn't pull the trigger are going to spend lots of time behind bars, at a minimum. And my analysis notwithstanding — hah! — Foster's fate was probably sealed when the SCOTUS refused certiorari from the Fifth Circuit's decision in April.

(10) Steve Verdon made the following comment | Aug 14, 2007 12:43:31 PM | Permalink


Yes, I can see the plea agreement with Steen, but Dillard is still a bit of a mystery. Supposedly it was his gun. I'd think that would be as significant as doing the driving/targeting, and would certainly qualify as both major involvement/reckless disregard for human life. But maybe there is something that just didn't make it into these documents like a plea agreement and they didn't bring it in because they didn't need it.

(11) Rorschach made the following comment | Aug 14, 2007 1:02:48 PM | Permalink

I say take the bastard out back and put a bullet in his flippin brain and be done with it. It seems painfully obvious to me from the evidence presented that he knowingly and with full participation willingly participated in the armed robbery that lead to a death, and even if he had not participated up to that point he became an accessory after the fact when he drove the crew away and told Foster to hide the gun repeatedly. In for a penny in for a pound. line all three up against the wall and let the next of kin have some target practice. Better yet, hang them at high noon in the town square. The problem with the death penalty is not that it is used too often. The problem is that it has become too civilized and clinical and painless. it used to happen in front of everyone, and the convicted was shamed in front of the entire town in the moments before he died a painful agonizing death. Now he lies on a nice padded gurney and gets a nice tranquilizer and goes to sleep in a private little ceremony. The pain and shame of the crime is gone from the equation, no wonder it is not much of a deterrent anymore.

(12) Rorschach made the following comment | Aug 14, 2007 1:08:39 PM | Permalink

Excuse me, I meant to say Brown, not Foster above. Mea Culpa.

(13) DRJ made the following comment | Aug 14, 2007 3:36:06 PM | Permalink

I'm not as understanding when it comes to Radley Balko as Patterico is. Maybe that's because I'm just a racist, death-penalty-loving Texan.

(14) DRJ made the following comment | Aug 14, 2007 3:41:56 PM | Permalink

From Balko's update:

"Beldar responds with an in-depth analysis explaining how Texas' felony murder law was applied correctly, Foster was appropriately found guilty, and how the state and federal appeals courts were right to uphold his conviction and sentence.

I think the point is that many people believe the death penalty is reserved for the worst and most egregious offenders, and are thus troubled that a man can be executed for a murder that he not only didn't intend to happen, but that he didn't actually directly commit. Whether or not the law was applied properly is beside the point. If the law allows for a guy in Foster's position to be executed, then there's something wrong with the law."

Translation: Beldar is right about this case but so what? The Texas felony murder law is wrong and should be changed.

(15) Mark L. made the following comment | Aug 14, 2007 5:15:14 PM | Permalink

I have heard it said that what you hear three times is true, but what was the fourth repeat for, DJR?

(16) DRJ made the following comment | Aug 14, 2007 6:15:32 PM | Permalink

Beldar and Mark,

I promise I did not post 3 times. I only posted once but it gave me an "Internal Error" code immediate afterward, and apparently that triggered multiple posts.

Sorry. Please delete the extra comment ... or all of them if you want.

[Not your fault, and easily fixed — Beldar]]

(17) DWPittelli made the following comment | Aug 14, 2007 8:31:56 PM | Permalink

We are properly free to argue that felony-murder statutes are morally wrong. We are not properly free to deliberately mislead when objecting to them, as Rothberg did when he told his readers that Foster's link to a murder was driving a car, one of whose passengers "left the car, got into an altercation and shot LaHood dead... Foster maintains that he did not know that Brown would either rob or kill LaHood."

(18) DRJ made the following comment | Aug 14, 2007 9:55:08 PM | Permalink

Good point, DW, and I agree with you. I was quoting Radley Balko's latest post and concluded with an admittedly sarcastic "translation" of what I think his post really meant. Sorry for the triple post and the confusion!

(19) Ed Darrell made the following comment | Aug 14, 2007 10:46:20 PM | Permalink

Texas' reputation is stained, so it's easy to believe that Texas might execute another innocent man. I mean, what other state fought for the right to execute a guy for a murder that someone else confessed to -- and won, and executed the guy? The decisions from our Court of Criminal Appeals don't assure most Americans about the high quality of Texas law.

Clean hands, you know. Texas ain't got 'em.

(20) antimedia made the following comment | Aug 14, 2007 11:49:40 PM | Permalink

Fortunately, few Texans give a damn what you or anyone else thinks of our legal system. Down here we don't coddle criminals and we don't believe in imposing sentences that are never carried out.

Beldar, by now you should know that liberals routinely lie to "prove" their points. You're just too gracious to state it publicly.

(21) Kelly made the following comment | Aug 15, 2007 11:08:48 AM | Permalink

Thanks for a great review of the pertinent law! That's why I came.

(22) Ed Darrell made the following comment | Aug 15, 2007 11:40:54 AM | Permalink

Down here we should care about justice. Someday there will be people at the U.S. Justice Department who give a damn. Or we'll have a lot of kids who can read in the state. And they will say, "Innocence isn't a reason to stop an execution? Let's see how that works when YOU are the guy on the gurney, eh?"

Only in Texas could people wear their "don't bear false witness" Christianity on their sleeves, chest pockets, gimme caps and have it tattooed on their behinds, and then turn around and execute people known to be innocent.

Look at the coverage this case has gotten. The guy sounds like a bad actor -- but in a race between bad actors, Texas comes out behind a guy who commits armed robbery for fun.

An honest state might worry about why people think that.

(23) DRJ made the following comment | Aug 15, 2007 1:52:40 PM | Permalink

My sympathies, Ed. It looks like you have three-peat-itis like I did earlier. I'm also sorry you have to live in Texas since you clearly don't appreciate the viewpoints of your fellow Texans.

(24) antimedia made the following comment | Aug 16, 2007 4:21:13 PM | Permalink

Ed, despite your claims to the contrary, Texas is not executing an innocent man. Look up innocent in the dictionary. You won't find Foster there. Beldar has most ably explained what felony murder is, so there's no point in trying to clarify it because you refuse to listen.

Down here we DO care about justice. The kind that keeps citizens safe and puts bad guys in jail or to death. If that isn't the kind of justice you seek, then move to the People's Republic of Kalifornia, where you will find many like-minded victims and much more of your money being siphoned off by a bloated government.

Here's a clue, not that you'll get it. I give you a gun and ammo. I drive you to the bank. I wait in the car while you go in to rob the place.

I'm guilty of robbery, just as you are. And if you kill someone, I'm also guilty of murder.

If you can't comprehend that, move to the PRoK.

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