"Sentenced to death for leaving his crystal ball at home" (UPDATED)

In the early hours of August 15th, 1996, Mauriceo Brown, DeWayne Dillard, Julius Steen and Kenneth Foster stopped outside the house of Michael LaHood. Brown got out of the car, robbed LaHood, and then shot him. To convict Kenneth Foster of capital murder under the law of parties, the prosecution had to prove that there was a conspiracy between him and Brown to rob LaHood, and that Foster should have anticipated that murder might have occurred during the robbery. At the trial Brown testified that there had been no discussion of robbing LaHood before he got out of the car.

Dillard testified at a state appeal that after the shot was heard, Foster had appeared surprised and panicked. Steen signed an affidavit in 2003 stating that, 'There was no agreement that I am aware of for Brown to commit a robbery at the LaHood residence. I do not believe that Foster and Brown ever agreed to commit a robbery. I don't think that Foster thought that Brown was going to commit a robbery.'
-- Amnesty International press release, 8/24/07

Nevertheless, Kenneth Foster has been sentenced to death under the Texas "law of parties," said to be one of the broadest of its kind in the United States. Judging by this case, at least, the law is either overly broad or it has been unconstitutionally applied -- even under the relaxed standards of the 1987 Tison v. Arizona ruling, which requires that accomplices both have major personal involvement in the crime and display a reckless indifference to human life to be subject to the death penalty.*

I wonder if Texas law actually did the murder victim more harm than good. There had been prior robberies that night by the four men -- but Foster had actually asked for the robberies to stop. If Mauriceo Brown knew or suspected this, his murder of LaHood may have re-established his dominance over the group -- remember, we're not discussing particularly sensible people here -- instantly and unilaterally converting a waning robbery spree into a capital murder case, and tying his accomplices' fates to his own.

Whether that was Brown's motive or not, he's already been executed. Even if you're a supporter of the death penalty -- full disclosure: I'm not -- the question remains: is it right and just that Kenneth Foster also be put to death for this crime? If you feel the answer is "no", consider adding your name to this petition to Texas Governor Rick Perry. As Amnesty International USA's Larry Cox puts it, "In essence, Kenneth Foster has been sentenced to death for leaving his crystal ball at home. There is no concrete evidence demonstrating that he could know a murder would be committed."

Like torture, much of the war on drugs, and other misapplications of state power, the death penalty is more of a cancer on society than a cure for what ails it; legislatures and law enforcement are forever tempted to show "toughness" by broadening its scope, whittling away at exceptions, and -- all too often -- punishing and even executing the innocent as well as the guilty. It's institutionalized blood lust; the sooner we abolish it, the better.


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* The Tison case was decided by 5-4, with Justice Sandra Day O'Connor writing the majority opinion. In a 5-4 1982 Enmund v. Florida ruling, the Supreme Court enjoined the death penalty for accomplices in cases where the defendant did not himself kill, attempt to kill, or intend to kill.

NOTES: Supreme Court case links to Wikipedia. I learned of the case via an e-mail from Sarah Klemm of MD CASE; she writes there will be a vigil on the Supreme Court steps on Wednesday from 4:30 to 6:00pm, supporting a stay of execution for Kenneth Foster.

UPDATE, 8/30: Good news via KTRE-TV and AP: "Governor Rick Perry says he'll spare Kenneth Foster from his scheduled execution tonight and commute his sentence to life. In doing so, Perry accepts a recommendation from the Texas Board of Pardons and Paroles, which voted 6-1 today to urge the commutation." From Governor Perry's press release:"After carefully considering the facts of this case, along with the recommendations 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," Gov. Perry said. "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." Life is a hell of a long time for this, but maybe there's the possibility of parole. I'll be checking the "Save Kenneth Foster" blog for reactions; it documents state, national and world coverage of the case, as well as activism connected with the case.
posted by Thomas Nephew at 12:30:00 PM -- |    

 
The fraudulent case for this war -- and the next one
If I'm right in the prior post that various grounds for impeachment have been somewhat blunted by recent administration stratagems (and the collaboration, at some level, of leadership Democrats), what then?

For my part, I'm reordering my arguments for impeachment to raise something to the level it probably should have been at all along: the fraudulent case for going to war in Iraq. Short of proof and wide acceptance that there was something fishy about 9/11 itself, this is probably the most fundamentally understandable, politically compelling case for impeaching Bush and Cheney there is.

Moreover, revisiting the "mushroom cloud smoking gun", Downing Street memos, and all the rest of it would also be very relevant to the other news drumbeat in recent days: increasingly strident claims that Iran is behind attacks on U.S. soldiers, via "sophisticated" IEDs (so-called EFPs, "explosively formed projectiles").

As was the case for Saddam's WMDs, the public evidence for claiming Iran is officially responsible for these EFPs remains tenuous at best. It's worth holding the Bush administration accountable for how empty the chief ground for invading Iraq was, just so we remember (1) why our troops are being attacked by IEDs of whatever origin in the first place and (2) how untrustworthy our so-called leadership is when making these kinds of claims.

Determined impeachment advocates -- whether the handful of vertebrates in Congress or the millions beyond the Beltway -- should see Bush administration tactics like the Gonzales resignation, the MCA, and the "FISA "fix" as annoying obstacles to impeachment, not as insurmountable ones. These tactics just affect the atmospherics of impeachment, not the fundamental necessity for it which each of the underlying issues -- partisan law enforcement, torture, warrantless surveillance -- so amply demonstrate. Regrettably, our country's alleged press corps and our country's alleged political leadership often pay more attention to atmospherics than to substance.

But no mere atmospherics can distract a country from being deceived into a war -- at least none should. That campaign of deception will always be a strong, clear cut reason for impeaching Bush and Cheney -- preferably before they strike again.



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NOTE: "claims" -- Frank James, "The Swamp" Chicago Tribune blog , 08/24/07 ("General: Iran's weapons vs. U.S. troops must stop").
UPDATE, EDIT, 9/2: EFP doesn't stand for "enhanced force projectiles." For more on why not to believe they're made in Iran, read "More EFP Nonsense," 5/7/07, and "Iran and the EFP Causus Belli," 8/31/07, by Bob Cernig ("Newshoggers").
posted by Thomas Nephew at 6:45:00 PM -- |    

 
The Gonzales resignation: a strategic retreat
Like a lizard shedding its tail to get out of trouble, the Bush administration has shed an expendable appendage to change the news cycle and get away with business as usual. The Gonzales resignation strikes me as part of a quite successful pattern of strategic retreats and counterattacks by the Bush administration, all designed to protect its impeachable and often flatly criminal core.

The FISA revision a couple of weeks ago remains Exhibit A in this respect. Bush's lawlessness in pursuing warrantless electronic surveillance was one of the clearest statutory-level "smoking gun" grounds for impeachment -- but the egregiously misnamed "Protect America Act" seemed to make legal precisely the actions even administration officials like James Comey objected to. Likewise, regarding torture, elements of the Military Commissions Act (MCA) may have had the purpose of insulating administration officials from legal, constitutional, and international law claims by retroactively applying its provisions to acts after September 11.*

These two bills represented Congressional collapses -- in the former case, inexcusably presided over by an "opposition" party allegedly representing me -- that arguably weakened the political case for impeachment on either of these grounds. This was because they enabled a cheap political retort along the lines of "you want to impeach them for stuff you just legalized?" -- whether or not that's true for every single act of warrantless surveillance, or cruel, degrading, or flatly torturous conduct carried out at Bush and Cheney's direction or with their blessing.

Turning to Gonzales, Robert Kuttner recently supported impeaching Gonzales as a kind of "baby step" towards prying loose more data about AttorneyGate and possibly proceeding with Bush and Cheney's impeachment at a later date. And Representative Jay Inslee (D-WA-1) is sponsoring a Gonzales impeachment resolution which Nancy Pelosi famously sighed and delicately rubbed her temples about a month ago. But in the face of continued Bush administration stonewalling of the Senate and House Judiciary Committee Attorneygate investigations -- i.e., investigations of impeachable voter suppression tactics and the partisan abuse of law enforcement -- maybe even Pelosi and Reid were becoming willing to move. Now, however, Gonzales' resignation may have blocked the "Gonzales impeachment" avenue towards Bush and Cheney's impeachment.**

Of course, what will come next instead is a struggle about Gonzales' successor, whether that successor is apparent frontrunner Michael Chertoff, current Solicitor General Paul Clement as "acting Attorney General," or perhaps even a recess appointment. What can we count on in that respect?

A couple of things, I think. First, Democrats will claim the Attorney General's resignation is an important victory to their credit -- never mind that too many of them voted to confirm his nomination in the first place, never mind that Josh Marshall and "Talking Points Memo" did more to bring down Gonzales (and Abramoff, and DeLay) than they or their pals in the mainstream media ever managed.

Second, as commenter DAS argues in a Matthew Yglesias item about Gonzales, the new shape of debate will be "the Dems already drove poor AG AG out -- isn't that enough? now that the few bad apples are out, isn't the problem over?" In that respect, whatever replacement mechanism happens, deep thinkers like Joe Lieberman have already explicitly argued that Bush's cabinet level appointments -- Alberto Gonzales, in fact -- always deserve presumptive approval, presumably barring an axe murder or an illegal nanny in their background.

Thus, hearings about any eventual nominee (if there are any) will presume (1) he or she isn't worse than Gonzales, and (2) the President's institutional "right" to get whomever he wants.

By contrast, it will be deemed partisan, divisive, and unsporting to wonder whether there's any reason not to assume the next Attorney General will continue Gonzales' pattern of abuses of office, forward-leaning yes man behavior, and never failing to tell the "half truth, the partial truth and everything but the truth."




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NOTES: "FISA revision," "may have had the purpose," "presumptive approval," "forward leaning yes man" -- discussions at this blog; "half truth" etc. -- Senator Charles Schumer, reported by CNN, 7/27/07; "sighed" etc. -- Ari Berman, The Nation, 7/31/07 ("Why Pelosi Opposes Impeachment"); "recess appointment" -- Josh Marshall, "Talking Points Memo," 08/27/07; Other links may be supplied later.
* Marty Lederman ("Balkinization") disagrees that the MCA law also served this purpose, though his point may have been more about lower level military or intelligence officials violating Common Article 3 of the Geneva Conventions under administration detainee and interrogation policy than about protecting policymakers like Yoo, Rumsfeld, Addington, Haynes -- or Gonzales -- from charges like those prosecuted in the Nuremberg "Justice Trial".
** However, as Avedon Carol and John Conyers have pointed out, you don't have to actually be in office to be impeached -- after all, one of the consequences of conviction is that you can't hold federal office again. Considering that Gonzales has been on short lists for a Supreme Court nomination before, that would be no small thing. posted by Thomas Nephew at 6:33:00 PM -- |    

 
The Gerson Early Warning System
President Bush's idiotic speech to the VFW last week has been adequately skewered and roasted by others, saving me much time and effort -- thank you, all.* My small contribution is to observe that important elements of Bush's idiotic August speech were foreshadowed by equally idiotic June and July Washington Post columns by his former speechwriter Michael Gerson.**

One of Bush's many idiotic assertions was about the lessons of Viet Nam -- he claims to believe American troops weren't bombing and shooting there long enough:

Whatever your position is on that debate, one unmistakable legacy of Vietnam is that the price of America's withdrawal was paid by millions of innocent citizens whose agonies would add to our vocabulary new terms like "boat people," "re-education camps," and "killing fields."

Compare Gerson in June ("An Exit to Disaster"), retelling Kissinger's story about Cambodian prime minister Sirik Matak, who refused to be evacuated by the US from Phnom Penh as the Khmer Rouge approached:

Eventually, between 1 million and 2 million Cambodians were murdered by the Khmer Rouge when "peace" came to Indochina. Matak, Kissinger recounts, was shot in the stomach and died three days later.

Sometimes peace for America can produce ghosts of its own.

And again -- and more ominously -- in July ("Trouble with the Neighbors"):

These are realistic responses to the serious provocations of Iran and Syria: ramping up economic pressure on both regimes; intensifying operations within Iraq against foreign influence; and taking limited but forceful action against Syria's Ho Chi Minh Trail of terrorists.

(Emphasis added.) Right: military action against the Ho Chi Minh Trail worked out so very well for everyone the last time. Wrong. By many accounts, the U.S. escalation into Cambodia helped the Khmer Rouge gain recruits and support just by pointing to B-52s overhead.

Bush (and Gerson's) Indochina history lessons aren't just a misguided argument for digging in for the very long haul in Iraq. They're also a recipe for escalation and regional war -- and Gerson, for one, merrily asserts that's a good and simple thing, approvingly citing a former administration official (Bolton?) calling Syria "lower hanging fruit."

But "fair and balanced" is my middle name, and I'm therefore willing to entertain the idea that I'm completely wrong about all of this, and that we made a tragic mistake by pulling out of Indochina over 30 years ago.

So let's do what we can to correct that: let's dress up Bush in that flight suit of his and send him to Viet Nam for a long overdue tour of duty -- with Michael Gerson as his wing man.


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* For some good Bush-kebab, see Jim MacDonald ("Making Light"), several offerings by Josh Marshall ("Talking Points Memo") and hilzoy ("Obsidian Wings"), who leads with "Once upon a time, we used to expect our Presidents to have some idea what they were talking about."
** I wrote about both columns. posted by Thomas Nephew at 1:35:00 AM -- |