There is extensive coverage of Kenneth Foster’s case linked at http://www.StandDown.org

Texas Moratorium Network has put up an alert on the Kenneth Foster website for people to write members of the Texas Legislature asking them to urge Governor Perry and the Board of Pardons and Paroles to stop the execution. Grits for Breakfast has an excellent open letter to the Governor and BPP about Foster

I’m writing you this open letter to suggest that you provide clemency to Kenneth Foster, Jr., who is scheduled for execution soon. However I think you should do so for reasons which likely disagree with the Texas Moratorium Network, which is asking folks to send letters in support of commuting Foster’s death sentence.

Instead, I think that from your perspective as death penalty supporters, it’s paramount that the punishment be reserved for those who actually committed the crimes of which they’re accused. Not even prosecutors believe Kenneth Foster pulled the trigger; that person was himself executed last year, so the crime has already been avenged. The issue is whether Foster, the driver, knew what the shooter planned.

Three judges on the Texas Court of Criminal Appeals agreed that “the applicant has identified new facts that might support a bare claim of actual innocence, under Ex parte Elizondo, (3) and would therefore allow the applicant to proceed on his fourth claim for relief.” These judges would have granted him a stay of execution “to allow him to pursue this claim through the ordinary course of habeas corpus proceedings.” (Here is the dissenting opinion written by Judge Tom Price and joined by Judges Charles Holcomb and Cheryl Johnson.)

The minority opinion states, that based on the new evidence “it appears evident that the applicant could not be guilty of capital murder under either of the theories of the law of parties that were submitted to the jury.”

The problem with the CCA majority opinion is that they refused to address new facts, or minority arguments, apparently relying on a narrow statutory interpretation to say they cannot consider new evidence of any stripe, even if it points to innocence! Consider the arrogant brevity of the majority opinion, which decided against the defendant across the board but addressed none of the arguments substantively, in a death penalty case, no less, in the face of actual innocence claims! Indeed, this open letter to you may be longer than the court’s opinion.