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04-20-09, 11:57 AM
The case of Brian Foster is the most egregious abortion of military justice
JAG Corps “Keistered” Justice In Foster Case

By Jayme Evans Monday, April 20, 2009

No military prosecutions in recent history have garnered as much negative publicity for the U.S. Marines as have the cases of the Marines of 3/1 Kilo Company, ambushed in Haditha, Iraq, in November of 2005. But the wrongful conviction and imprisonment of another Marine further reinforces the public perception of something institutionally corrupt about the Navy Judge Advocate General Corps’ application of the Uniform Code of Military Justice.

U.S. Marine Corps Sgt. Brian Foster loves his country. His father taught him the importance of giving back in return for the freedoms Americans enjoy and that serving others was the highest calling. So Brian Foster enlisted in the Marines, entering boot camp in 1992 and marrying wife Heather in 1993. He excelled as an MP and made E-5 in only four years, earning two Good Conduct Medals, two National Defense Service Medals and six rifle and pistol Expert Medals in the process.

In 1998, embroiled in a hotly contested divorce, Foster was awarded custody of their children. Wife Heather fled to Colorado with the boys and sought the help of a feminist attorney specializing in women’s rights. Against Foster’s wishes, the California judge issued a kidnapping warrant for Heather Foster. Subject to arrest in Colorado, Foster’s wife claimed she fled her husband’s abuse. Colorado being a “safe haven” state, Foster’s wife was neither arrested nor charged. And like so many fathers these days, Foster was forced to negotiate for custody of his children. When those negotiations broke down, this Marine found himself charged with allegedly assaulting, raping and threatening his wife.

Contrary to his pleas, Foster was convicted in December 1999 of all charges. He was sentenced to 17 years confinement, stripped of his rank, all pay and allowances and given a dishonorable discharge. He served nine years, two months and 17 days of that sentence, most of it at the maximum security United States Disciplinary Barracks at Fort Leavenworth, Kan., before being released on appeal in February of 2009.

The case of Brian Foster is the most egregious abortion of military justice I have ever witnessed. Like an inmate smuggling contraband, the JAG Corps, the trial judge and the so-called experts “keistered” justice, offering up only verbal testimony. There was not one, single shred of corroborating physical evidence. There was no forensic examination, no DNA, no witnesses.
There was Heather Foster’s allegations, which came nearly five years after the alleged incident.
There was her admission that she willingly engaged in consensual intercourse with her husband, on multiple occasions after her alleged rape.
There was the incompetent testimony of Foster’s 6-year old son who was only 2 years old at the time of one of the alleged incidents and not yet born at the time of the other.
There was the conflicting testimony of one of Heather’s close friends who said she never mentioned being raped, juxtaposed with the testimony of another who said she did; testimony that was wrongly admitted as evidence of a prior consistent statement of fact.
There was the improperly admitted evidence of Lt. Cmdr. Mary Rusher who cloaked the victim’s allegations in a white lab coat, transforming those allegations into a medical diagnosis of PTSD, which was unlawfully accepted by the court as further evidence of the alleged rape.
There was the improperly admitted testimony of Dr. Mary Dully who did not examine victim or accused. Dully’s testimony amounted to what the appeals court said came dangerously close to “profiling.”

The process that convicted Brian Foster was riddled with errors, the cumulative effect of which deprived this Marine of his constitutional rights for nearly a decade. The trial judge failed numerous times to immediately correct the prejudicial errors and could not “unring the bell.” Any sane person would think that Foster’s release means his nightmare is over. It is not.

In their decision excoriating the prosecution, the appeals court ordered Foster’s immediate release, but rather than end his prosecution in its entirety, they tossed the rape charge with prejudice, ordered a new Convening Authority to examine whether to retry Foster on the remaining charges and set the maximum sentence at a bad conduct discharge.

Due to his burning desire to serve his country in the Marine Corps, Sgt. Brian Foster was illegally deprived of the constitutional rights he willingly swore to uphold. He spent nearly a third of his entire life in a maximum-security federal prison for crimes he did not commit. The government can never give back what they have taken from him, but a good start would be to drop the remaining charges and allow this innocent Marine to live out the remainder of his life in peace.

Key lawmakers with jurisdiction over the Navy are Rep. Ike Skelton, D-Mo., chairman of the House Armed Services Committee, Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee, and Sen. John McCain, R-Ariz., ranking member of the Senate Armed Services Committee.