Posted on 04/18/2009 9:50:59 AM PDT by RaceBannon
Marine free after conviction tossed out Rape charge led to decade in prison By Rick Rogers (Contact) Union-Tribune Staff Writer 2:00 a.m. March 14, 2009
Brian Foster After spending a decade behind bars, a former Camp Pendleton Marine is now a free man because a military appeals court ruled that “a muddled, hearsay-based case” caused his spousal-rape conviction.
But anyone who thinks Brian Foster is bitter would be wrong. As Foster left the prison at Fort Leavenworth, Kan., on Feb. 20, he picked up his sergeant stripes and spoke candidly with his superiors.
“I told (them) I was happy to be back in the Marine Corps and that I'll go anywhere and do anything the Marine Corps wants me to,” Foster, 35, said during a phone interview yesterday from Belton, Mo. “I said I love my country and I love the Marine Corps and that unfortunately, these things happen in a free country.” Foster was handed a cell phone to call his parents in Texas. It took him a while to admit that he didn't know how to use a cell phone.
“Heck, I didn't know how to turn it on,” he said. His ordeal began when a military jury at Camp Pendleton convicted him of spousal rape and related charges on Dec. 3, 1999. He received a 17-year prison sentence. But in a February ruling, a three-member appellate panel cited a host of problems with the prosecution's case: There was no forensic evidence of the alleged rape. Foster and his wife, Heather, continued having sex for years after the alleged rape and even made a sex tape together.
The rape accusation arose during a contentious divorce and custody battle for the couple's two boys.
The court-martial judge allowed misleading or unreliable testimony from three witnesses.
Foster's lead attorney handled the case poorly, such as not cross-examining a crucial witness.
The judges dismissed the rape charge with prejudice, meaning it can't be refiled. Foster can be retried for aggravated assault and making threats linked to other alleged incidents, but the appellate panel said if he's convicted, his maximum punishment would be a dishonorable discharge.
Heather Foster couldn't be reached yesterday. She is said to be living in the Denver area with her two sons. The tremendous time lapse in having Foster's conviction reviewed – about nine years – caught the attention of the appellate court and outside experts in military law. “I've never bumped into something like this in 30 years of practicing law,” said attorney Kevin Barry McDermott, who represented Foster for eight months between late 2000 and early 2001. “From all the feedback I've gotten, no one can remember a case that took this long to get to a preliminary review.”
In the Feb. 17 ruling from the U.S. Navy-Marine Corps Court of Criminal Appeals, Judge J.A. Maksym wrote that the delay “incurred by this court's ineffective action amounts to nothing less than judicial negligence.” “We find the delay ... so egregious that tolerating it would adversely effect the public perception of the fairness and integrity of the military justice system.” Foster's case came at a bad time, said Michelle Lindo McCluer, executive director of the National Institute of Military Justice in Washington, D.C.
The Navy and Marine Corps' appeals system faced such a backlog of cases, she said, that the U.S. Court of Appeals for the Armed Forces eventually told those services to add staffing.
“It is a black eye for the military justice system,” said Tom Umberg, an Army Reserve colonel called to active duty in 2004 to prosecute detainees housed at Guantanamo Bay, Cuba.
“This injustice should have been resolved in 18 months,” Umberg said. “This was not the world's most complicated case.”
A spokeswoman for the appellate court said current rules require military appeals to be reviewed within 18 months of docketing.
Since Foster left prison, fellow Marines have spent more than $800 to buy him clothes and a steak dinner that he said he had been thinking about for 10 years.
“It was amazing to be treated so well,” he said. “This was something they did not have to do. It was their personal money.”
Foster said he endured prison thanks to his faith and the Rev. Carroll Thorne, a Catholic priest and Vietnam War veteran. He said Thorne preached courage and perseverance.
“He told me that he was constantly rooting for me,” Foster said. “He was just a great support.”
Foster hopes to persuade the military to give him back pay for the past decade. But most of all, he wants to serve in the Marine Corps until his retirement.
“Sometimes bad things happen to good people,” Foster said. “The courts, which I joined the Marine Corps to defend, ultimately made me free. It just took a little bit of time.”
I can be contacted via email at: usmcbwfoster@gmail.com I will do my very best to reply to everyone. I am still fighting my case and the unfair treatment I am receiving. As of today, 06 April 2009, I still am being paid as a Private and not able to get dental or medical treatment. The MC seemed to have started an illegal allotment to my x- wife's divorce attorney and my x-wife in January 2000, totaling $6331.00, and I am told that if I want my pay I have to go to the divorce attorney to get it back! Incredible, never in a million years would I do an allotment to my x-wife's divorce attorney. Another piece to the puzzle falls in place as to why my SRB has been erased; was this to cover up misconduct? Time will tell. I am thankful for all the support out there. I am surprised at the response from people all over the country, people who I have never met. The fight for my freedom is not over as I have found out this week. I may have been released by the courts and the SECNAV but I am being treated like a prisoner still. I have no access to health care- refused treatment and told I can be transported out to civilian care if I get sick. I am being paid as a basic private, even though the SECNAV and the courts are calling me Sgt. Foster. DFAS refuses to recognize my status and I was told I will only get a check for about 20K. This is the equivalent of Private pay, based on the remainder of my original 4 year contract, of which 12 months were in Prison. Failing to recognize that I spent nearly ten years behind bars. Either way I feel That it is a slap in the face. What has happened to the US Military? Is there no longer a chain of command? Last time I checked the SECNAV was the SECNAV- not a person to ignore! Does this mean the fighting man and woman can ignore the SECNAV's orders to deploy, wear the proper uniform, Ect., Ect.?? Time will tell... remember we were in Baghdad in 3 days but a decision on a single Marine has taken over 10 years! My Head is still high and I will fight this to the end, until I feel justice has been rendered. God Bless Our Country.
================================================ On Fri, Apr 17, 2009 at 5:29 PM, Usmcbwfoster wrote:
Sir, thank you for your interest in my case and your support. You can reach my counsel Mr Kevin McDermott at warlawyer@aol.com He is the attorney that set the foundation for my release this year, his work back in 2000-2001 was not acknowleged by the command, only the appeals court.
Brian
================================================ Brian is going to be on Euphoriadev's radio show soon!!
Check this out. Good news and bad news.
This is what the GOvernment can do to you when you get sent to the brig.
Then, they leave it up to you to fix it.
Ping to this is the guy I was telling you about...
My prayers are with this Marine. He is now being jerked around by a bunch of REMFs. The commander and lawyers should spend 10 years in leavenworth.
Sgt Chris Cook USMC Fmr
Thanks, Race. I’m glad he finally found some justice, although there are still things that need to be straightened out.
“Foster’s lead attorney handled the case poorly, such as not cross-examining a crucial witness.”
No one seems to have mentioned this. I presume that he had little say in choosing his attorney, but it looks as if maybe this guy was part of the problem.
Was this just bad luck and bureaucratic negligence, or was there someone in the system who was working on behalf of his wife, I wonder?
http://jaghunters.blogspot.com/2009/04/i-received-this-email-from-marine.html
Additional info found here
The NCIS is the problem. People are guilty before proven innocent in these trials and normal rules of evidence are not allowed
We witnesssed this in the Hamdania incident and Haditha, both had cases of survielence video taken that was used by the prosecution but denied to the defense, orders written by senior officers that were later denied to the defense...
Purjery by NCIS officers on the stand with no follow up
Look up attainder. Know what they tried to do to AIG? Make them pay back money after telling them the money is okay?
They were pronounced guilty without a trial and punished at the same time.
That is what isbeing done in court martials today
The Democrat Socialist Party blocked Bush judges for 8 years, setting the course we are now on.
...unless, of course, this was entirely inside UCMJ.
I’m thinking if that happened to me, I’d put on the happy face, too. And all the people who put me in the brig would slowly and mysteriously disappear...
This man needs a good lawyer. I can't believe they are stonewalling him on backpay after wrongly jailing him for a decade! Insane.
“People are guilty before proven innocent in these trials and normal rules of evidence are not allowed”
Sounds like the corrupt ‘family’ courts too.
As grandparents my wife and I are going through hell trying to get our grandkids, 3 and 1 from going to strangers. I will be dead if this takes 10 years. The stress of the prospects of losing blood family because of corrupt social workers and judges is devastating. They get more $$$ if kids are taken out of family.
Wow...
Unbelieveable! It is unconscionable that his wife and her lawyer are receiving money under these circumstances.
God bless him.
Update via personal email from Pvt.Sgt. Brian Foster, released in February after 10 years of bogus confinement, bogus everything - at Leavenworth and beyond - to find an illegal allotment to his ex-wife’s attorney and himself, with jack squat.
Lawsuit needs filed against the corps.
If they gave money to some one not authorized to receive it - then they threw away their money - not the money of the entitled recipient.
WOW!! Prayers that this Marine gets back “everything” he had to give up!!
Thanks for the pings. At least this Marine is free to walk again with his head held proud. So sad what happened to him.
Wow, I am glad that he is free. Who is this guy’s congress critter? We all need to email his rep. Enough emails, and things will change quick.
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