HOUSTON — Kenneth Foster Jr. did not kill Michael LaHood Jr. But he's set to die in Texas today, just as if he had.
Under a state law that allows accomplices to be executed, Foster was sentenced to death for driving the getaway car in a botched robbery that led to a shooting.
Foster maintains that he had no idea a murder was about to take place, an account backed by the three other participants in the crime -- including the man who actually killed LaHood and was executed last year.
But a jury concluded that Foster, 30, conspired to commit a string of robberies that evening 11 years ago in the San Antonio area, and should have foreseen that LaHood would be killed because an earlier heist had turned violent. So according to Texas law, he was as responsible for LaHood's death as if he had fired the gun.
Texas has executed 402 people since the Supreme Court lifted a ban on capital punishment in 1976 -- more than four times as many as the next-closest state. Foster, in fact, is to be the third man put to death by the Lone Star State this week, and the 24th of the year.
The fact that Foster is to be executed for a murder he did not directly commit has turned his case into an international cause celebre. South African Archbishop Desmond Tutu, along with thousands of other death penalty opponents, has written Gov. Rick Perry to demand Foster's life be spared.
Much of the effort has been led by Tasha Foster, a native of the Netherlands who performs as a rapper under the stage name Jav'lin. Though the two have never so much as touched, she married Foster three months ago after exchanging letters with the death row inmate, who has written two volumes of poetry while behind bars.
The Texas Board of Pardons and Paroles, which rarely has recommended that a sentence be commuted, was expected to reject a request by Foster's lawyer that his punishment be reduced to life in prison. That would leave him with a final appeal to the U.S. Supreme Court.
"I am proud to be an American, and a Texan also, but we would not expect to see something like this in this country," said Foster's 55-year-old father, Kenneth Foster Sr. "I just can't get past this. Why should he give his life for a life he did not take?"
LaHood's relatives reject any attempt to paint Foster as an innocent. Though he did not pull the trigger, they argue, he allowed it to occur by driving the actual killer, Mauriceo M. Brown, to the spot where he shot LaHood. In 1994, Foster had shot at several people and was given probation -- a light sentence by Texas standards.
"Foster was the captain of that ship. If he truly didn't want to be involved, he could have said, 'Get out of my car,' " said Nico LaHood, the victim's brother, who said his parents never recovered from the night they found their 25-year-old son shot dead. "This is a person who had personally shot people before. The same system that he's blaming actually gave him a chance, and he blew it."
The European Union, which opposes the death penalty, this month urged Texas to declare a moratorium on capital punishment, arguing that "there is no evidence to suggest that the use of the death penalty serves as a deterrent." That drew a rebuke from the governor's spokesman, Robert Black, who said residents overwhelmingly supported the state's tough brand of justice.
On the night of Aug. 14, 1996, according to court records, Foster and three friends set out on an armed robbery spree while drinking heavily and smoking marijuana.
Foster, who was 19 at the time, was driving. From the front passenger's seat, Julius Steen looked for people to "jack," or rob. In the back seat, Brown held the "strap," or .44-caliber gun, which belonged to the other passenger, DeWayne Dillard.
The foursome already had committed two robberies -- hitting a woman in the eye during one -- when they began tailing a car driven by a woman who was following LaHood to his home. She stopped in front of the LaHood residence. Brown got out of the car and argued with LaHood before shooting him in the face.
Bexar County prosecutors tried Brown and Foster jointly for capital murder. Steen agreed to testify for the prosecution and received a reduced sentence of 35 years to life. Dillard was convicted in a separate capital murder case and is serving a life sentence.
Steen testified that he "understood what was probably fixing to go down" when Brown got out of the car -- a statement widely considered to have secured Foster's 1997 conviction. In 2003, Steen recanted that, saying he only had believed a murder might occur after seeing Brown and LaHood arguing.
A federal appellate judge ruled in 2005 that the evidence against Foster did not warrant the death penalty. But that ruling was overturned a year later by the U.S. 5th District Court of Appeals in New Orleans, which said Foster had acted with "reckless indifference to human life."
Robert C. Owen, a law professor at the University of Texas at Austin, said he believed there was ample precedent to seek the death penalty against a co-conspirator in a murder. But he questioned whether Foster deserved such harsh punishment.
"What is most troubling about the Foster case is not the law, but how it has been applied," Owen said. "The law was intended to punish people who truly anticipated that someone was about to be killed. The facts here do not suggest that."
Foster's lawyer, Keith S. Hampton, said he was resigned to the fact that his client probably would die.
"You have already executed the guy who killed LaHood," a frustrated Hampton said. "What exactly is the point of giving this man the death penalty?"