Rape charge led to decade in prison
By Rick Rogers (Contact) Union-Tribune Staff Writer
2:00 a.m. March 14, 2009
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.”