Innocent Marine freed after 9 years in prison - Marine Corps News | News from Afghanistan & Iraq - Marine Corps Times

Innocent Marine freed after 9 years in prison

OCEANSIDE, Calif. — 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 nonjudicial 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.

‘Maintained his innocence’

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.”

A trial of errors

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.

Rebuilding his life

Foster’s life didn’t immediately return to normal Feb. 20, the day he left Leavenworth a free man — but not a free Marine.

Officially busted in rank to private by the jury, 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.

His life, in short, is still a tangled mess.

“I am waiting to get everything resolved, all of these issues. My health care, a place to live, my paycheck,” Foster said by telephone from Kansas City, Mo., where he’s assigned to Mobilization Command’s Headquarters Company, about a half-hour drive from Leavenworth. “I’m planning to pursue the case in divorce court in Colorado and, at a minimum, have contact with the boys.

“I’m just basically putting my life together,” he said.

Despite the MobCom assignment, Foster has not yet received official orders. He holds tight to copies of the letter he received from the Navy telling him of the court’s decision, his reinstatement as a sergeant and his ordered release from Leavenworth.

Foster wears his stripes, but his latest paycheck from the Defense Finance Accounting Service only gives him the $1,400 a month for the E-1 pay grade resulting from the conviction, about half of what he should rate as a sergeant with 16 years.

His legal team has not yet determined how much he may be owed in back pay and benefits, but a Marine Corps Times calculation using 10 years of pay tables places the amount at about $250,000 in basic pay, plus tens of thousands more in lost basic allowance for housing that he’s less likely to ever see.

Foster was two years into a re-enlistment when he was convicted, but says he never received the full $20,000 re-enlistment bonus. He left Leavenworth without the birth certificate, Social Security card and driver’s license that he had on arrival. (His identity, Foster said, was stolen three times while he was imprisoned.)

He’s assigned to MobCom’s barracks and gets only $6.90 a month in partial housing allowance, the E-1 rate, less than the $8.70 that sergeants rate in partial BAH and far less than the $849 in full BAH that a typical sergeant living out in town would receive.

But Foster loves his single room — he calls it “the Fairmont of the Marine Corps” — for its equipped kitchen and queen-sized bed. He says he’s looking forward to preparing home-cooked meals again.

Foster, who had served seven years by the time he was imprisoned, would like to remain in the Corps. But with 16½ years in service, he’s technically beyond his re-enlistment contract’s end-of-active service date, and past the 13-year service limit for sergeants. He and his attorney aren’t sure if he would have to petition for a remedial promotion to pick up staff sergeant, or perhaps find some other avenue to salvage his career and make those years spent in prison count for something.

Foster’s divorce was finalized eight years ago. Attempts to reach his ex-wife were unsuccessful, and her divorce attorney declined to comment. For now, Foster awaits reuniting with sons Jacob and Nicholas, now teenagers, as he sorts out his legal options to regain custody.

“I was heartbroken over not having any contact with my boys,” he said.

Successes, so far, have been few. It took six weeks to get military health care approved. He learned April 6 that he’s now enrolled in Tricare, so he’ll finally get his release-from-confinement physical and get a fractured tooth fixed.

His uniforms from back in 1999 have disintegrated. Several Marines stepped up to help, including his new company first sergeant, who took him out to a steak dinner at Applebee’s in Kansas City and shopping for a new “Charlie” uniform, paid in part with $54 Foster got in his last prison paycheck.

He’s heartened to see them freely helping him piece his life together. “I’m really grateful for that.”

Foster recently ran a first class Physical Fitness Test, and he’s training hard to excel in the Combat Fitness Test.

Drill, though, is one of those things that’s requiring a bit of extra work. But he remains a good shot on rifle and pistol, and hopes to qualify as expert “for the first time in 10 years.”

“I’m trying to get up to speed as quickly as I can,” he said.

Foster has been fixing up his old truck, a 1997 Ford F-150, which he remembers as much newer than it now looks. But, he said, “the truck is paid for.”

He spent a week on leave reuniting with his parents in Tyler, Texas, and hopes to get a month’s leave approved to visit one of his brothers and meet his nieces and nephews. Although he’s got 54 days of leave on the books, “they owe me over 300 days” from his time confined, he said.

Foster is not sure if he’ll ever get those back.

But he may be one of few people who have made money on the stock market lately. He’s invested $1,500 from the tiny amounts of money earned working in Leavenworth’s shops, including his 80-cent hourly wage barbering, and so far has made about $300 on that investment.

Remembering Leavenworth

Life at Leavenworth wasn’t easy, nor is it designed to be. Foster spent the first month of that hot, humid summer in lockdown.

“They basically reinterrogate you,” the one-time military police officer said. “They let you know right away that you’re stripped of everything, even your human dignity.”

After a month, he was moved into general population, where he was paired up with another prisoner in cells that stretched eight floors.

“It was loud,” he said. “I just remember thinking, ‘Man, there is nothing here. There is no hope.’ ”

He fell into a routine, working in the prison’s shops and exercising, reading and writing letters home. He often would speak with other prisoners, telling stories or exchanging tips on workout techniques, and catch news and sports on a dozen channels on the prison’s satellite TVs.

Foster clearly remembers the Sept. 11 terrorist attacks, when he was heading to the showers before a shift in the chow hall and caught the TV image of one of the Twin Towers on fire.

“It must be the History Channel,” he thought, remembering the earlier attack in 1993.

In the chow hall, he turned on one of the TVs and watched as the second hijacked plane flew into the other tower. Some cooks brought in a radio, and they spent their shift washing pots and pans, listening to news reports.

“It was just a terrible day,” he said. Several years later, they watched news reports of the attacks in Baghdad and the Marines’ battles in Fallujah.

For most of his confinement, Foster was one of about 40 Marines at Leavenworth. “We all knew each other,” he said. Each Nov. 10, they would say “happy birthday.”

Working in the prison’s barber shop, he earned a barbering certificate, something he hopes will pay off as a civilian career. “I’m looking for something quiet and laid-back,” he said.

On the job, he’d often trim hair for the death-row inmates. At one point, three Marines bided their time there, until recent years, when their appeals took them off death row.

“I did my best to bring my best and bring a positive attitude and lift their spirits,” he said. He knew about their murder convictions, although “you see a different side when you’re on the inside. They are so isolated.”

Stepping out to freedom

Foster walked out of Leavenworth, passing security personnel at the post’s main gate that, before the Sept. 11 terrorist attacks, he recalled was just an unsecured entrance. Tucked inside his green duffel were some underwear, socks and toiletries, plus a pack of tuna fish in case he couldn’t find something to eat.

Foster soon realized that the world had changed.

“What happened to the dollar menu? Stuff is getting smaller. You pay more for smaller stuff,” he said. “I remember the large cup at Burger King,” he added, noting a large cup of soda “is now the medium size.”

After a few hearty meals celebrating his release, however, he learned that his digestive track was slow to adjust from the “mushy” food he got in prison.

For years, it was hard to comprehend that life elsewhere was moving forward.

“You’re really, really isolated,” he said. “You could read and write and watch TV, but you never really knew. Now, I’m out there. I’m coming along. It’s like I was in a coma, and I’ve got a lot to learn.”

After nearly 10 years of living the forced routine of prison, his new life is mind-numbing. Upon his release, one of his brothers gave him an iPhone, and a staff sergeant took him shopping for a laptop computer.

In prison, he said, he had no access to the Internet, computers, even a typewriter, so he read lots, especially about finance and investing. Now, “it seems that electronics are everywhere,” he said.

“Everything is coming to me so fast,” Foster said. “There’s a lot of stimulation. There are a lot of fast-moving parts. Texting — what is that all about?”

Back in the day, Foster was a gung-ho Marine, one of three brothers who at one point served in uniform together. Today, he’s relieved at his release, but bitter when he realizes how wrong his trial and appeals were. To Foster, the military justice system, and everyone in the courtroom at his trial, failed him.

“The Marine Corps could make the situation right,” he said. “The Marine Corps has to step up and make the situation right in this case.”

With his life still uncertain, Foster doesn’t quite yet taste freedom.

“I still kind of feel like I don’t have it,” he said. “It’s kind of like being treated like I’m still a prisoner, and I’m not getting the respect of a sergeant.”