http://brieffortheappellant.blogspot.com/2007/08/dont-blame-law-of-parties-blame-anti.html

Don’t Blame the Law of Parties; Blame the Anti-Parties Charge

The death penalty seems commonplace in Texas with almost 400 condemned inmates awaiting their turn in the death chamber (read about them here), and Governor Perry has expressed his belief that executions are wholeheartedly supported by Texans (read some of his views here). But Texas prosecutors should only seek the death penalty in the worst of the worst cases (in Governor Perry’s words, “the most horrible crimes committed against our citizens”). Foster’s case was not one of these. Foster did not pull the trigger during a robbery that ended a life, as journalists and newspapers have widely reported; rather, he was the getaway driver. (Read some of the news stories here and here). Many of these same reports indicate that Foster received the death penalty under the “law of parties,” which many columnists and their readers view as unfair and a practice that should be ended.

The notion that a defendant can be sentenced to death under the “law of parties,” however, is incorrect. As alluded to in the Fifth Circuit’s opinion quoted above, in a Texas death penalty trial there are two stages: “the guilt or innocence phase,” where the jury determines whether the accused is guilty of capital murder, i.e., killing someone while in the course of committing another felony (like robbery), and “the punishment phase,” where the jury determines whether the defendant (who it has already determined to have committed the capital murder) should be sentenced to life in prison or to death.

In the first phase, the guilt or innocence phase, a defendant may be found guilty under the law of parties. Texas law is clear that in a capital murder prosecution or any other criminal prosecution for that matter, “A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” (Read Penal Code Section 7.01 here). As pertinent in Foster’s case, “[a] person is criminally responsible for an offense committed by the conduct of another if . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” (Read Penal Code Section 7.02 here). In Foster’s case, the jury believed beyond a reasonable doubt that Foster aided in committing the robbery that resulted in murder. He was the driver of the vehicle used to commit a string of robberies using a gun that culminated in the final robbery where the victim was shot and killed. It does not appear that anyone questions that Foster was complicit in the crime, and it appears that the jury was correct in finding him guilty of capital murder as a party, i.e., promoting and assisting in a robbery where the victim was murdered. But being found guilty of capital murder does not automatically result in a death sentence.

A death sentence may only be given after the second phase of the trial, the punishment phase. In this phase, the jury is asked to answer several special issues. (Read Texas Criminal Procedure Article 37.071, Section 2 (b) here). One of these special issues (37.071, Section 2 (b) (2)), commonly referred to as the “ant-parties special issue,” states, “[I]n cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code [the “law of parties” referenced above], whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.” So, knowing that Foster did not pull the trigger, the jury had to find beyond a reasonable doubt that even if Foster did not intend for the robbery victim to be killed, Foster “anticipated that a human life would be taken” in promoting and assisting in the series of armed robberies that eventually resulted in a murder.

Under the facts of Foster’s case and the capital punishment law, it is not unreasonable that the jury found beyond a reasonable doubt that Foster anticipated that by robbing people at gunpoint, a victim would likely be killed. But just because the jury’s determination is legally sound, it does not mean that such a decision is morally correct. And the jury still had an opportunity to spare Foster the death penalty under these circumstance. Indeed, the jury was required by law (Section 2 (d) (1)), that in “deliberating on the [anti-parties special issue], it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant’s background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty.” (The emphasis has been supplied). So, even though it knew that Foster did not pull the trigger and probably did not intend the death of the robbery victim, the jury did not find these “circumstances of the offense” to be persuasive enough to spare Foster the death penalty; the jury believed the fact that Foster must have “anticipated that a human life would be taken” in promoting and assisting in the crimes was enough to impose the ultimate punishment.

While Foster is certainly no angel, his crime does not rise to the level of the worst of the worst of crimes deserving of death as a penalty. The jury in his case, apparently, disagreed. But public outcry, media attention, and an unlikely decision by the Texas executive branch returned some semblance of morality to Texas’s tarnished criminal justice system. If the people of Texas want to prevent the imposition of the ultimate punishment in cases where it is clearly not deserving, they need to understand the mechanisms of capital punishment.

A public outcry to do away with the “law of parties” will never be successful. First, it was not the problem in Foster’s case because it is not applicable to the question of life or death. Second, the law of parties is necessary in prosecuting many other crimes that have been traditionally categorized as accomplice-type crimes (a term no longer used in Texas criminal law), like a burglary actually committed by one person and planned by another but both people are guilty of the underlying crime.

The public outcry needs to be directed at the language of the anti-parties special issue that allows the imposition of the death penalty, in cases like Foster’s, where the evidence shows that the defendant only “anticipated that a human life would be taken” and no more. This phrase is what led to Foster receiving the death penalty, not the “law of parties.” And doing away with the phrase will move Texas justice one step closer to being fair, albeit a tiny step.