EJF newsletter - False spousal rape charge led to decade in
Leavenworth prison for Marine Corps sergeant
Abstract
Embroiled in a hotly-contested divorce
Marine Corps Sgt. Brian Foster was awarded custody of their children in
California. Then his wife, Heather, fled to Colorado with the boys and sought
the help of a feminist attorney specializing in women's rights.
The California judge issued a kidnapping
warrant for Heather Foster. She then claimed she fled her husband's abuse.
Colorado, being a ³safe haven²
state, Heather was neither arrested nor charged.
Marine Sgt. Foster was then forced
to negotiate once again for custody of his children. When those negotiations
broke down Sgt. Foster found himself charged by his wifeıs attorney with
assaulting, raping and threatening his wife.
As a result of false allegations of
marital rape and domestic violence, Sgt. Foster was convicted by a general
court martial in December 1999 of all charges and 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, Kansas, before being released and his rank
restored on March 14, 2009, after a court of appeals vacated all findings of
the trial court.
Prosecuting marital rape radical feminist rules
Sgt. Fosterıs prison ordeal
began when a military jury at Camp Pendleton, California, convicted him of
spousal rape and related charges on December 3, 1999. A general court-martial
composed of officer members convicted Sgt. Foster, contrary to his pleas, of
rape, two specifications of aggravated assault, and wrongfully communicating a
threat in violation of Articles 120, 128 and 134 of the Uniform Code of
Military Justice, 10 U.S.C. §§ 920, 928, and 934.
He was then sentenced to
confinement for seventeen years, forfeiture of all pay and allowances,
reduction in rank to private (pay grade E-1), and a dishonorable discharge. The
convening authority (CA), Commanding General, 1st Force Service Support Group,
Marine Forces Pacific, Camp Pendleton, California, approved the sentence as
adjudged.
And there it lay for over nine
years.
What was the evidence for such a draconian sentence?
The following
observations are based on the findings of the court of
appeals.
Heather and Brian Foster were
married in 1993. In 1998 Sgt. Foster hired an attorney and filed for divorce in
California and was given custody of their children. Heather then kidnapped the
children and fled to Colorado. Following completion of requisite residency
requirements she then filed for divorce against Brian in Colorado despite the
pendency of the divorce case in California. The California judge issued a
kidnapping warrant for Heather Foster. She then claimed she fled to Colorado to
escape her husband's abuse. Because of her unproven and unsubstantiated claim
of domestic violence the warrant was never enforced.
Over the course of several
months the estranged couple engaged in civil discovery and custody-related
settlement discussions in California and Colorado. The primary issues pending
in both jurisdictions related to the conditions by which Brian and Heather
would share legal and physical custody of their two minor children. The civil
litigation between the parties was ultimately consolidated under the Uniform
Child Custody Jurisdiction Act with a judge from each state joining in pretrial
settlement efforts. Indeed, following mediation of the matter, the parties
agreed to a provisional agreement on custody in which Heather consented to Brianıs
joint legal and partial physical custody of their two children.
The record is opaque as
to the reasons for the collapse of this agreement, aside from references to
lapses of communication between the two civil attorneys. Almost certainly this breakdown
was a deliberate manipulation of the situation by Heatherıs radical feminist
(redfem) attorney. It is no surprise then that Heather's attorney in Colorado
reported the alleged misconduct to prosecutorial officials at Camp Pendleton,
which led to the charges against him.
Inventing a spousal rape charge
Rape charge based primarily on redfem attorneyıs report
The key witness against Sgt. Foster
was his spouse and alleged ³victim,² Heather Foster. Based largely on
the report of Heatherıs Colorado attorney, prosecutors alleged myriad instances
of spousal abuse and one incident of rape over the course of the marriage.
The record shows that Sgt.
Foster was convicted of rape solely upon the testimony of his estranged wife,
nearly five years after the alleged incident occurred, and corroborated only by
the victim's own statements to her friend nearly two years after the alleged
incident.
In the time between the
alleged act and her sworn testimony, Heather Foster, by her own admission, had
voluntarily participated in several instances of intimate sexual contact with
Brian, including the willing production of a sexually-explicit video.
Further, no
forensically-related evidence was introduced at trial and no official report to
any authority was made after the alleged rape took place. Indeed, the alleged
rape was only ³reported² to Marine Corps authorities by the alleged
victim's divorce attorney in the midst of a complicated and contentious custody
battle with Sgt. Foster when the coupleıs settlement agreement broke down.
Without any official report or forensic evidence of the alleged rape the
prosecution called on two of Heather Fosterıs drinking buddies for supporting
testimony.
Drinking buddy one
Mrs. Kolstee testified that
she was one of the Fosters' neighbors during the period when they lived in
Hawaii and that she and Heather shared baby sitting duty for each other,
shopped, and otherwise socialized together. Mrs. Kolstee testified that they
became ³very² close during their time in Hawaii. Despite their close
proximity and regular contact Mrs. Kolstee testified that Heather never told
her about any instances of abuse at the hands of her husband while they were
stationed in Hawaii.
Mrs. Kolstee did offer some
corroboration as to the charge of aggravated assault with a rifle, asserting
that she saw what she believed was the end of a rifle barrel through the
slot in the door at the Foster residence. Unfortunately, Mrs. Kolstee identified
the ³weapon² as a pistol in her statement to the Naval Criminal
Investigative Service before the trial. Her credibility was also hindered by
her discussion of the case with the alleged ³victim² the evening before
testifying at the UCMJ Article 32 Investigation.
As a result the appeals court
found that this witness' testimony was extremely general, at times confusing,
and contained factually unsupported opinion. More importantly, throughout
her testimony no reference was made to any knowledge of the alleged rape.
Obviously Sgt. Fosterıs defense attorneys were incompetent, which is confirmed
in the following episodes.
Drinking buddy two
Ms. Kossen on the other hand,
testified that Heather Foster had reported the alleged ³rape² to her
approximately two years after it supposedly occurred. This rather significant
delay seriously undermined the materiality, if not the credibility, of the
victim's statement to her friend and that friend's testimony. Moreover, the
testimony was admitted at trial as a prior consistent statement per Military
Rule of Evidence 801, Manual for Courts-Martial, United States (1998 ed.), not
as an excited utterance, or other statement contemporaneous with the alleged
rape.
Additionally, Ms. Kossen offered
testimony regarding her frequenting night clubs and drinking with Heather, and
testimony pertaining to yet another allegation of aggravated assault with a
weapon in California. However, she told investigators this was an
incident that took place in Hawaii.
In summary, the evidence as to his
culpability for rape was anemic at best.
What the Navy-Marine Corps Court of Criminal Appeals
found
The court of appeals found that within the four corners
of this case:
As a result the appeals court concluded
that the prosecution attempted to bootstrap a rape conviction atop several
instances of alleged assaultive conduct for which there was also little
substantiation. In short, the Government's evidence of rape in this case, aside
from Heather's testimony, consisted of statements by her to her friends and her
mother. None of these statements were made proximal to the alleged rape.
The appeals court was also significantly
disturbed by the fact that the allegations of rape were made in the midst of a
hotly-contested divorce and custody battle, after failed attempts at
settlement, under the terms of which the ³victim² was prepared to
surrender partial custody of her children to the man she later accused as an
abusive rapist.
Considered in the light most favorable to
the Government, a reasonable member of the trial court could choose to believe
the ³victim,² and to disbelieve evidence inconsistent with guilt. However,
under the facts presented, the appeals court was unable to conclude that Sgt.
Foster is guilty of rape beyond a reasonable doubt. To the contrary, the court
found that his conviction for rape was factually insufficient, and was obtained
as the result of other errors, discussed below. Therefore, the rape conviction
was not allowed to stand.
Admission of improper expert testimony otherwise known
as redfem ideology and dogma
The appeals court began by
reviewing the manner in which expert testimony was admitted during this
litigation with the proposition that ³the trial judge must determine at the
outset, pursuant to Rule 104(a), whether the expert is proposing to testify to
(1) scientific knowledge that (2) will assist the trier of fact to understand
or determine a fact in issue.²
They also considered the plenary
understanding in military law that expert testimony is not permitted to replace
the decision-making process of the fact finder or, more specifically, to
advance the expert witness' opinion as to the ³believability or credibility
of victims or other witnesses² in a case dealing with sexual assault.
The appeals court restated that
³expert testimony is admissible if it is relevant..., if its probative value
outweighs its prejudicial value..., and if the testimony will assist the trier
of fact...² In determining if a military judge has properly admitted expert
testimony, they then tested his decision for an abuse of discretion.
Testimony of pediatrician Dr. Mary Dully
The trial judge permitted the
prosecution to call Dr. Mary Dully, a pediatrician, who testified as to the
general subject area of domestic violence as dictated by her ideology.
One might reasonably ask how the
hell a pediatrician is qualified as an expert witness on adult rape?
It should be noted that the
universe of Dr. Mary Dully's experience is defined by her work in the Camp
Pendleton emergency room and her service with the San Diego Police Academy's
Primary Aggressor Course, where she taught officers how to identify the person
who ³may have exerted power and control and been the winner in a physical
altercation and helping officers on scene who is likingly [sic] the
primary aggressor and who is actually the looser [sic] in the physical
altercation.² So the bias and dogma of her training and background are
obvious from the outset. After reciting her professional qualifications, Dr.
Dully went on to outline her vision of what domestic violence was based upon
her ³training and experience.²
What followed was an
extensive colloquy with trial counsel that involved this pediatrician's
personal view of how domestic violence presents itself, and how both the
aggressor and victim are likely to act according to the DV industry playbook.
This discussion included offering the members of the trial court an ideological
basis for why a victim might take certain action, such as remaining with her
abuser over a long period of time, all in line with redfem DV dogma.
Notably, defense counsel did not
voir dire the witness at trial. Further, a review of the record reveals
that the trial counsel's questions and Dr. Dully's responses substantially
mirrored the factual theory of the case presented by the Government. Yet the
record is clear that the Dr. Dully reviewed no materials specific to this case
and certainly did not conduct an examination of either Sgt. Foster or his
estranged wife, Heather, in preparation for trial. In short, dogma and ideology
were introduced unchallenged as evidence in this criminal case.
This outline of what constitutes
abuse by this expert witness, and the close factual nexus between the call of
those questions and the Government's position at trial, brings Dr. Dullyıs
testimony very close to the nature of profile evidence of an offender, which is
forbidden under military law. While the appeals court did not hold that Dr.
Dullyıs ³evidence² strayed over the permissible line, having drawn so
very close to it, the Government's admission of Dr. Rusher's testimony
immediately thereafter, exacerbates the dangerous nature of Dr. Mary Dully's
unrestricted testimony.
Testimony of Lieutenant Commander Mary Rusher, Medical
Corps, U.S. Navy
Regarding the testimony of
Lieutenant Commander Mary Rusher, Medical Corps, U.S. Navy, the court of
appeals held that the military judge abdicated his role as impartial
gatekeeper, and erroneously admitted testimony which compromised the
credibility of this trial in its entirety. [emphasis added]
While the record indicates that Dr.
Rusher was a physician, board certified in neurology and psychology, her
testimony was that she was, in fact, a psychiatrist, who conducted a single
interview with the alleged victim in this matter. Therefore, the military
judge erred in permitting the members to consider Dr. Rusher's testimony.
In preparing their case for
litigation, the prosecution arranged for Heather Foster to meet once
with Dr. Rusher for an evaluation on November 10, 1999. The examination took
two hours. Dr. Rusher testified that she took a history from Mrs. Foster,
including a review of past substance abuse, history of abuse, social history,
medical history, conducted a mental status evaluation, and developed an
assessment.
Importantly, Dr. Rusher does not
simply explain to the members of the court what Mrs. Foster claims. In sharp
contrast to the fundamentals of admissible expert testimony, Dr. Rusher
delivered the factual assertions of the victim as a medical diagnosis.
The pertinent exchange with
trial counsel follows:
Q: What did you observe during the interview?
A: I observed that Mrs. Foster did indeed have
the symptoms of post traumatic stress disorder.
Q: And what are those symptoms that you observed?
A: The symptoms that I observed in her was [sic]
that she did experience a traumatic - actually, multiple traumatic incidents
where her life was threatened and the life [sic] of her children were
threatened; and she re-experienced this trauma through nightmares.
She would have
nightmares of her husband placing a gun to her head for several hours. She had
intrusive memories of the abuse where her life was threatened and the lives of
her children were threatened. She had graphic memories where she was told she
would be chopped up, and her children would be chopped up in small little
pieces; and they would have a slow painful death...
She also had avoidance
symptoms where she had difficulty going places that reminded her of the abuse.
For example, it was very difficult for her to come to California, because in
California was one of the places where the abuse occurred.
She had a numbing of
responsiveness where her effect at times or her expression were somewhat flat
and emotionless, which again is more -- one of the very common symptoms of post
traumatic stress disorder order [sic].
As set forth above, Dr. Rusher went
well-beyond a medical analysis of the facts before her. In short, she adopted
the facts as advanced by the alleged ³victim² and cloaked them in a physician's
white coat, presenting them as scientific findings to the members of the trial
court.
It is well established that ³...to put
an impressively qualified expert's stamp of truthfulness on a witness' story
goes too far.' An expert should not be allowed to go so far as to usurp the
exclusive function of the jury to weigh the evidence and determine
credibility.'² However, this is a standard tactic of ³expert²
witnesses introduced by radical feminists in domestic violence trials for the
reason, as here, that it frequently works to condemn a male defendant.
In reviewing Sgt. Fosterıs case, the court noted that
the military judge took no action to correct the tone and content of Dr.
Rusherıs testimony during the tenure of her recitation to the court martial
officers. The Court of Appeals for the Armed Forces (C.A.A.F.) has stated that:
³...it is [dangerous] for judges to
receive uncritically just anything an expert wants to say. The evaluation of
expert testimony does not end with a recitation of academic degrees. Everything
the expert says has to be relevant, reliable, and helpful to the fact finder. A
rational and demonstrable basis is the sine qua non of expert opinion.² United
States v. King, 35 M.J. 337, 342 (C.M.A. 1992).
As a result to appeals court
concluded the testimony of Dr. Rusher was plain and obvious error.
Though the military judge failed to
recognize this and take action to prevent the improper testimony, he ultimately
recognized the threat it posed to the neutrality of his members, albeit not
until the expert witness had concluded her testimony. At the close of her
testimony, the military judge, without defense prompting, provided the members
a curative instruction. The law is clear that such a curative instruction is the
³preferred² remedy for correcting error when the court members have heard
inadmissible evidence, as long as the instruction is adequate to avoid
prejudice to the accused.
Generally courts assume that members are able to
comport themselves with a curative instruction in the absence of evidence
suggesting otherwise and apparently in Sgt. Fosterıs case the members made an
honest effort to comport themselves with the trial judge's instruction.
However, the appeals court decided that
in view of the testimony in conjunction with the entire trial, they were left
convinced that the military judge was unable to ³unring the bell.² They
further concluded that the error did ³substantially sway² the members in
their decision to convict Sgt. Foster, and to impose a punitive discharge and
substantial confinement in his case. Thus, this error materially prejudiced
Sgt. Fosterıs substantial rights.
Now allow an incompetent witness who wasnıt even born
when the ³rape² occurred
Adding injury to insult the trial
judge permitted the members to hear the testimony of an incompetent witness in
the form of Jacob Foster, the six-year-old son of the ³victim.² The
childıs testimony was permitted without the military judge conducting an
Article 39(a), UCMJ, session so as to make an assessment of the child's
competence and probity.
After the child, who was coached and
alienated from Sgt. Foster by his mother, began testifying the trial court
found that the boy had not been born at the time of one of the charges about which
he was testifying. Further, he was approximately two years old at the time of
the most recent alleged act. When that was discovered the military judge
excused the members of the trial court.
After consultation with counsel, the
judge ordered the testimony to be stricken and instructed the members to
disregard it. One can only wonder why defense counsel didnıt demand a
mistrial at this point? But when it is noted that the Judge Advocate
General (JAG) defense attorney for Sgt. Foster was Lt. Kathleen Kadlec, USN,
the picture of the ³incompetent defense² becomes a bit clearer.
Were this the only error, the appeal judges felt they
could rely on the members of the trial court to assiduously abide by their
instructions to mitigate the error. But this testimony amounted to at least the
third retelling of the victim's story, including one retelling by a physician
as a matter of medical fact, and another who recited dogma as proven in every
case of abuse.
Cumulative error
In view of all these errors the appeals court
found that the accumulation of errors described above required them to evaluate
the fairness of the appellant's trial using the cumulative error doctrine. The
scope of their evaluation of the errors in the case was made:
³,,,against the background of the case as a whole,
paying particular weight to factors such as the nature and number of the errors
committed; their interrelationship, if any, and combined effect; how the
[trial] court dealt with the errors as they arose (including the efficacy or
lack of efficacy of any remedial efforts); and the strength of the
government's case.²
Considering the improper testimony of Dr.
Rusher, combined with the dogma of Dr. Dully, and the stricken testimony of the
boy, the appeals court concluded that these errors called into question the
basic fairness of Sgt. Fosterıs trial. They also questioned the efficacy of the
trial courts curative instructions in that the military judge acted late with
regard to both Dr. Rusher's improper testimony and the child's coached
recitation.
The appeals court also noted that the
Governmentıs case was not strong, being based almost entirely on the statements
of the ³victim² and some testimony that Sgt. Foster was an abusive
husband. They stated that but for the cloaking of the victim's statements in
the physician's lab coat of Dr. Rusher they were unable to discern whether the
members of the trial court would have convicted Sgt. Foster on any charge. They
characterized the entire case as muddled and hearsay based.
As a result they vacated all the
findings of the trial court.
Unreasonable delay for review
The tremendous time lapse in having
Sgt. Fosterıs conviction reviewed about nine years caught the attention of
the appellate court and outside experts in military law.
³Iıve never bumped into
something like this in 30 years of practicing law,² said attorney Kevin
Barry McDermott, who represented Foster for eight months between late 2000 and
early 2001. ³From all the feedback Iıve gotten, no one can remember a case
that took this long to get to a preliminary review.²
Sgt. Fosterıs 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 Corpsı 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.
³It is a black eye for the
military justice system,² said Tom Umberg, an Army Reserve colonel called
to active duty in 2004 to prosecute detainees housed at Guantanamo Bay, Cuba.
³This injustice should have been resolved in 18 months,² Umberg said.
³This was not the worldıs most complicated case.²
Regarding prejudice the appeal
judges found that this case is one in which the post-trial delay is so extreme
as to ³...give rise to a strong presumption of evidentiary prejudice.²
They then concluded that Sgt. Foster was clearly prejudiced by the post-trial
delay after his general court-martial, and considered that as weighing heavily
in his favor.
The primary factor in their evaluation was the determination
that the Government failed to prove Sgt. Foster guilty of rape by legal and
competent evidence beyond a reasonable doubt.
The appeals court also concluded that had just one of the
seven previous lead judges in this matter conducted a thorough assessment of
the record of trial in a timely fashion the extensive errors embracing this
case would have been discovered and Sgt. Foster would have faced, at worst, the
prospect of a new trial on all but the rape charge.
In short, nearly ten years of delay makes a difference
in a case where the alleged instances of misconduct took place years before the
actual trial. As a result of all the factors cited they determined that
Sergeant Foster's conviction for rape was improper as the Government did not
and could not establish his guilt. Therefore, he served nearly ten years of
confinement in large measure for an alleged offense of which he should not have
been convicted and that likely never happened.
The appeals court then considered
the egregious delay in the reviews of Sgt. Fosterıs case and concluded that
there was a due process violation resulting from the post-trial delay in
processing this case. They found the delay ³...is so egregious that
tolerating it would adversely effect the public's perception of the fairness
and integrity of the military justice system.² Further, they concluded that
the error created by the unreasonable delay is not harmless beyond a reasonable
doubt. Even if it was harmless, the court was also aware of their authority to
grant relief under Article 66, UCMJ, and stated that in this case, irrespective
of the due process violation, they would have chosen to exercise that authority
because of the unique circumstances.
As to an appropriate remedy the judges
considered dismissing all charges and specifications with prejudice. However,
they found that Sgt. Foster would be able to defend himself against any
remaining charges.
So as to compensate Sgt. Foster for
the actual prejudice discerned from ten years of confinement served in large
measure for an offense which they dismissed, they limited Sgt. Fosterıs further
exposure to any adjudged sentence to nothing more than a punitive discharge.
Should the rehearing result in conviction, court of appeals believed that
limiting Sgt. Fosterıs possible sentence will serve as adequate relief for the
deprivation of his right to speedy post-trial review. The Equal Justice
Foundation most emphatically disagrees. The injustice of nearly ten years
confinement at Fort Leavenworth on trumped up, vindictive, self-serving false
allegations should free this Marine without question or reservation.
Findings
The charge of rape was dismissed with
prejudice and cannot be retried. The remaining findings and the sentence were
set aside. The record was returned to the Judge Advocate General for remand to
an appropriate Convening Authority with a rehearing authorized. Sgt. Foster was
ordered to be released from confinement forthwith and that was done on March
14, 2009. He is now back in the Marine Corps with his rank restored. He is
still trying to collect back pay for nearly 10 years of confinement.
This is by no means the only case
the Equal Justice Foundation has seen where members of America's Armed Forces
have been falsely convicted based on perjury, false allegations, radical
feminist (redfem) dogma and ideology, incompetent defense counsel, and biased
and dysfunctional courts. But Sgt. Brian Foster's case well illustrates the
need for the Foundation and why your support is needed.
Charles E. Corry, Ph.D., F.G.S.A.
Former Marine and
Father
of a disabled Marine
veteran
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Charles E. Corry, Ph.D., F.G.S.A.
President
Equal Justice Foundation
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455 Bear Creek Road
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Personal home page: http://corry.ws
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Franklin