4/20/09 (CA):
Military Judge Erred as Gatekeeper, Leading to Injustice
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After more than nine years locked up in prison, fighting to overturn his 1999 rape conviction, Sgt. Brian W. Foster finally won his freedom in February. But the battle to restore his military rank, pay, career and life is just beginning.
A decade ago, while serving as a military police officer at Camp Pendleton, Calif., Foster told his company commander that he would refuse non-judicial punishment over allegations made by his estranged wife accusing him of raping her in 1995 and assaulting her from 1994 to 1998. Her rape claim surfaced amid a bitter divorce and custody fight over their two young sons.
Foster, now 35, figured he'd be acquitted at court-martial, where he was charged with rape, aggravated assault and making threats. What Foster didn't know was that about 90 percent of all general courts-martial end in convictions, either from the jury or through plea agreements, according to annual reports from the Navy's Judge Advocate General.
He also didn't count on a shoddy defense and prosecution, which convinced a jury to sentence him to 17 years in prison, bust him to private and cap it all with a dishonorable discharge.
Clearing his name would not be easy.
For nearly a decade, Foster has been known by many in the military legal community as the sergeant who refused NJP but got a 17-year sentence, noted Kevin McDermott, a California attorney who first filed papers in Foster's appeals case in 2000, after his Dec. 3, 1999, conviction.
Foster's marriage wasn't exactly the picture-perfect stuff of romance novels. The couple, engaged when he shipped out to boot camp in 1992, struggled at times with military moves to Hawaii and California and with their two young sons, according to court documents. But the marriage fell apart in 1998 and the couple battled through a divorce and custody over the boys.
Just when it seemed they would agree to a mediated custody agreement with joint legal and partial physical custody, the deal collapsed, and his wife's claim about the alleged rape and abuse was brought to the command's attention.
At the time, Foster was assigned to 1st Force Service Support Group's Military Police Company, where he says other Marines ostracized him for being a prospective single parent. Then the rape allegation surfaced, and his lieutenant told him the case would be pushed to battalion-level NJP, or office hours.
"I told them, 'Look, I did not do these things,' " Foster said. "I would have refused it, because it was bull crap."
One military defense attorney advised him to accept NJP, a proceeding that might have netted him much less punishment.
Now-retired Lt. Col. Colby Vokey, a former senior defense attorney at Camp Pendleton, met with Foster for NJP counseling, and the allegations of domestic violence didn't bode well.
"I kind of saw a train wreck coming," Vokey said. Foster "was very distrustful that he was going to have a fair trial at his battalion. I don't think Sergeant Foster was wrong."
Foster "maintained his innocence from the minute he walked in the office," Vokey said. "I believed him. The problem was I thought the risk [at trial] was just too great."
As it turned out, Vokey was right. Foster hired a civilian attorney and rolled the dice at a general court-martial. The jury didn't buy Foster's defense, and sentenced him to 17 years in prison, which he first served in base brigs before his transfer July 9, 2001, to the U.S. Disciplinary Barracks at Fort Leavenworth, Kan.
Foster's case languished for more than seven years at the Navy-Marine Corps Court of Criminal Appeals in Washington. The former military police officer lost hope, and accepted that he'd live out the rest of his life as a convicted felon and sex offender.
"I didn't do anything but work, eat, go to my cell and sleep," he said. "I just had no hope the court was going to hear my case."
Until, suddenly, the three-member panel gave it a review.
The court, in its 21-page opinion, questioned the fairness of Foster's trial, which it called "a muddled, hearsay-based case," and outlined a series of errors by the judge, prosecutor, defense attorney and delays by the appellate process.
On the rape charge, the court was critical of the military judge, who "abdicated his role as impartial gatekeeper" by allowing expert testimony from a government witness - a psychiatrist who once evaluated Foster's wife and at trial testified that she had nightmares and other trauma from abuse.
The doctor "went well beyond a medical analysis of the facts before her," the court ruled. "She adopted the facts as advanced by the alleged victim and cloaked them in a physician's white coat, presenting them as scientific findings" to the jury. Foster's defense attorney didn't object, and although the judge did instruct the jury to weigh the doctor's credibility, the court said, by then he was "unable to 'unring the bell.' "
"It is clear to this court that the prosecution attempted to bootstrap a rape conviction atop several instances of assaultive conduct," the court wrote, adding, "we are unable to conclude that the appellant is guilty of rape beyond a reasonable doubt. To the contrary, we hold that his conviction of rape was factually insufficient and was obtained as the result of other errors."
The Feb. 17 ruling set aside all convictions, but the court left open the option for the Corps to again file the assault charges. If Foster was convicted, however, the worst punishment he could receive would be a punitive discharge, because of the time already served.
"The rape conviction cannot stand," Appellate Judge John A. Maksym wrote in the opinion.
Assigned to medium security while in custody, the second of four security levels for prisoners, Foster was working in the prison barbershop when he was summoned to see the command's judge advocate. The officer told him his case was dismissed with prejudice, meaning the rape charge cannot be filed again, and shook his hand. Foster didn't understand it, at first.
"I thought it was a scam," he said.
It was welcome news, but bittersweet. Foster had already earned enough credit to be released in just 14 months. The good news was that the felony conviction was gone, as was the need to register as a sex offender.
Sources said the Marine Corps has decided against pursuing those lesser charges against Foster a second time. There had been no formal announcement of that decision as of April 9, and Foster's legal team had not been informed formally of a decision.
Foster now must salvage his personal life and relationship with his sons, and fight to save his career, regain his NCO rank and recoup thousands in back pay and benefits he believes are owed to him.
With thanks, MCN, © 2009
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