HUNTSVILLE, Texas – Gov. Rick Perry, in a rare and uncharacteristic move Thursday, spared the life of condemned prisoner Kenneth Foster, hours before he was to be executed for his role in a San Antonio robbery-shooting.
The halt to Thursday's execution marked only the second time since Texas resumed carrying out executions in 1982 that the parole board voted to stop an execution this close to punishment time. And in that case, in 2004, Perry rejected the board's recommendation and the prisoner was executed.
But this time, Perry agreed with the Texas Board of Pardons and Paroles' equally unusual recommendation that Foster be saved from lethal injection.
"I was surprised, but I had faith he was going to do the right thing," Foster, 30, said as he was being taken from the Huntsville Unit of the Texas Department of Criminal Justice, where executions are carried out, for a return trip to the Polunsky Unit near Livingston, where death row inmates are housed.
Death-penalty opponents had launched a public-relations campaign to save Foster because they objected to Texas's unique so-called law of parties, in which each participant of a capital crime is held equally responsible. In any other state, the person who actually killed another person might be eligible for execution, but the driver or other participants might not be.
Foster's lawyer, Keith Hampton, estimated that at least a dozen other Texas death row inmates have been executed under the same law.
Last weekend, a group picketed outside Perry's Austin church.
"We commend Governor Perry for preventing this miscarriage of justice," Sue Gunawardena-Vaughn, director of Amnesty International USA's Program to Abolish the Death Penalty, said. "We also share the governor's concerns about Texas death penalty law and urge him to examine all injustices plaguing the capital punishment system in his state."
David Atwood, founder of the Texas Coalition Against the Death Penalty, applauded Perry for recognizing the death penalty "had been grossly misapplied in this case."
But Perry didn't object to Foster's execution on those grounds. Perry, a staunch supporter of the death penalty who has fought any attempts to water down Texas's laws on capital crime, said that capital murder defendants should not be tried together, as Foster and his co-defendants were.
"After carefully considering the facts of this case, along with the recommendation from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster's sentence from the death penalty to life imprisonment," Perry said in a statement.
"I am concerned about Texas law that allows capital murder defendants to be tried simultaneously and it is an issue I think the Legislature should examine."
Perry was not obligated to follow the 6-1 vote of the parole board, whose seven members he appointed. In the 2004 case, Kelsey Patterson, diagnosed as mentally ill, was executed after the parole board recommended Perry spare his life.
The U.S. Supreme Court was considering Foster's appeal when Perry's decision was announced.
Foster and Mauriceo Brown were tried jointly for the August 1996 shooting death of Michael LaHood, Jr., 25, during an attempted robbery on the driveway of LaHood's home in San Antonio. Brown was the gunman, and Foster the getaway driver. During the shooting, Foster was about 80 feet away, sitting behind the wheel of a rental car.
Brown was executed last year.
Foster appealed on the grounds that he didn't shoot LaHood.
"I didn't kill anybody," Foster told The Associated Press in a recent interview from death row. "It's hard for you to anticipate how Brown is going to react. Texas is saying flat out: You should have known better.
"In life, we have hindsight. Texas is saying you better have foresight. They're saying you better be psychic."
Nico LaHood, whose brother was murdered on the driveway of the family home, was frustrated with the outcome.
"No one requested to talk to us. No one. Nothing," he said after a reporter told him of Perry's decision.
LaHood, who watched Brown die, had planned to be in the death chamber later Thursday to watch Foster die. Numerous court appeals previously had failed to overturn the jury verdict, he said.
"For the governor to do that, I believe he folded to political pressure," LaHood said.
Foster acknowledged he and Brown and two friends were high on marijuana and alcohol and had robbed at least four other people in San Antonio that night when they followed LaHood and his girlfriend. Brown got out of the car, demanded car keys and a wallet from LaHood, then shot the man when LaHood didn't immediately produce them.
Brown ran back to Foster's car and they drove off. Less than an hour later, Foster was pulled over for speeding and driving erratically. Foster, Brown and two others in the car, Dwayne Dillard and Julius Steen — all on probation and members of a street gang — were arrested for LaHood's slaying.
Brown and Foster wound up on death row. Dillard is serving life for killing a taxi driver across the street from the Alamo two weeks before LaHood's slaying. Steen took a life sentence in a plea bargain.
Foster would have been the 24th inmate executed in Texas this year and the third inmate to die in as many days.
Five more lethal injections are scheduled for next month, including one next week.
Foster learned of the parole board's decision during a visit Thursday morning with his father. A warden told him of the governor's commutation about an hour later.
"The first thing I did was drop to my knees and say a little prayer," he said. "I owe a lot of people."