Kenneth Foster Jr. is scheduled to be executed in Texas later this month for a murder everybody agrees he didn't do. In fact, the man who did commit the murder has already been executed for it. The case is being cited by capital punishment opponents as obvious miscarriage of justice:
The case of Kenneth Foster Jr., scheduled to die next month for a 1996 murder in San Antonio, is further proof of how cruel, capricious, unjust and utterly insane our death penalty laws have become.
But consider the facts of the case. Foster was the driver of a car in which there were three other men, Dewayne Dillard, Julius Steen and Mauriceo Brown, and they were just "driving around," "goofing off, more or less, and smoking some weed." At one point, Brown announced that because they had a gun, they ought to "jack" somebody. Steen and Brown first got out of the car and robbed a Hispanic woman at gunpoint and later robbed a man and two women in a parking lot. Later, they stopped to chat with a "scantily clad woman" in a driveway. She accused them of having followed her car, at which point Brown got out of the car and started arguing with her. He then took out the gun and shot her.
Brown has already been executed for that killing. Dillard and Steen were persuaded to testify against Brown and Foster, who were tried together, for which Dillard received a 25-to-life sentence and Steen a life sentence. Foster is scheduled to die Aug. 30 unless the governor or a judge or the parole board steps in. All of Foster's supports say that, because he didn't plan the killing, in fact didn't even know Brown was going to do it, he should be spared.
That's where my "oh, come on" instinct kicks in. Those men were not just driving around and goofing off. They were actively looking for mischief to create. By the time of the killing, the gun already been used to rob four people, and Foster was still driving these people around. He might not have realized someone would end up getting killed that night, but it could not have come as a great shock. He was just a victim of circumstances, someone who was in the wrong place at the wrong time. He helped create the circumstances.