Kenneth Foster and the Texas Death House
Liliana Segura, The Brooklyn Rail, July/August 2007
In theory, the law of parties is “a well-recognized legal document,” says Houston defense attorney Clifford Gunter, and most states with the death penalty on the books include a similar provision for “non-triggermen.” Nevertheless, critics of the Texas law say it’s an aberration—a slippery legal statute that stands in direct violation of the 1982 Supreme Court decision in Enmund v. Florida. Still the “prevailing view,” according to Gunter, Enmund held that the death penalty was unconstitutional for a defendant “who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” In Texas today, the law or parties says exactly the opposite.
Even more troubling is the law in practice. When Justice Byron White wrote the Enmund decision in 1982, he observed that the Court was not aware of a single execution of someone who did not kill or intend to kill. What a difference another quarter-century makes. Months after Enmund was decided, Texas executed its first prisoner since the reinstatement of the death penalty in 1976. In the tidal wave of capital cases that followed, numerous defendants would be sentenced to die under the law of parties.
One was Norman Green. Green was charged for a murder during a botched robbery in an electronics store in 1985. He got death. His accomplice, the man who actually pulled the trigger, got life. The arbitrary result exemplifies what Green’s appellate lawyer, Verna Langham—who also handled Kenneth Foster’s first appeal—sees as the danger of the law of parties. “[It] is subject to such loose interpretation,” she told the Austin Chronicle in 2005. “A kid in the wrong place at the wrong time with the wrong people can end up being sentenced to death.” Green was executed in 1999.
No formal study has been done on the number of defendants subjected to the law of parties in Texas.