After a decade in military prison, innocent man still wants to serve

McClatchy NewspapersJune 9, 2011 

WASHINGTON — Brian Foster is back on the beat, against all odds.

Foster, 37, is a Marine Corps gunnery sergeant and a military policeman. He may even be a better cop for his ordeal — spending nearly a decade in Leavenworth for a crime he didn't commit.

"I think the prison time actually benefited me," Foster said. "When I go on calls now, I don't make assumptions; I look around more."

The Detroit native has served nearly 19 years in the Marine Corps, more than half of them as an inmate unjustly incarcerated at the U.S. Disciplinary Barracks at Fort Leavenworth, Kan. Now he's hoping to extend his military career, and has applied to be a warrant officer.

Foster currently is a watch commander for the military police unit responsible for law enforcement at Marine Corps Base Quantico. The sprawling facility, 35 miles south of Washington, trains officers like those who once put him away.

A military jury convicted Foster of spousal rape in late 1999 and sentenced him to 17 years. In February 2009, the U.S. Navy-Marine Corps Court of Criminal Appeals dismissed the charge as flimsy and denounced the excruciatingly long post-trial delays.

"Sergeant Foster's case," his appellate attorney David Sheldon said, "represents one of the gravest miscarriages of justice I have known in the Uniform Code of Military Justice."

Foster isn't tall, but he's solidly built. He looks visitors in the eye when he speaks. In prison, he converted to Roman Catholicism. He worked in the prison woodshop, where he excelled, and he became a master barber. He's an excellent shot.

Foster survived Leavenworth intact, and is now married again, but there are lasting wounds.

His first wife, whose accusations amid a bitter divorce led to his conviction, now has custody of his two sons. They were young when he went to prison; one son, at the age of 6, was summoned to testify at the court martial. Now, Foster's sons are teenagers and don't deal with him much.

"I miss them terribly," Foster said.

During his imprisonment, Foster grew estranged from his parents. They still aren't talking. He is also challenging the Marine Corps itself, filing a complaint with the Board for Correction of Naval Records in an effort to secure back pay.

"I'm not asking for any bonus pay, or anything like that," Foster said. "I'm just asking for what I'm entitled to."

Foster enlisted in October 1992. A year later, he married his first wife.

Foster's career pretty much prospered. The marriage didn't. He filed for divorce, his wife complained of abuse, and the divorce proceedings turned ugly. During the acrimony, the wife told her divorce attorney that Foster had assaulted her. Then, the claim escalated, as the ex-wife claimed he'd raped her, five years earlier.

When the initial allegations came to the attention of Foster's superiors, they apparently considered it typical divorce slash-and-burn. They proposed fining Foster and confining him to barracks for 14 days.

Foster turned down the deal. He said he was innocent. Then he turned down another, stiffer non-judicial punishment. The allegations escalated. Military prosecutors charged him with rape and secured a 17-year sentence.

In Leavenworth, Foster tried to keep his nose clean. He read, exercised and prayed. The joint had gangs, racial divisions and prison power plays, but Foster said he knew that "if you got into any trouble at all, your chances for getting parole were gone."

Finally, Foster secured a follow-up hearing, where the judges called the prosecution's evidence "anemic at best." With equal force, the appellate court chastised itself.

"Had 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," the U.S. Navy-Marine Corps appellate court noted.

The original appellate judge assigned Foster's case, a 2009 internal Navy review found, "did not have an adequate military justice litigation background and...was not well-suited to the appellate bench." This judge did nothing for 18 months, and then retired.

Another judge had the case for five months, and then was transferred. An experienced judge took over, but then retired. An inexperienced Marine Corps colonel took the case and did nothing for three months until yet another judge took it over and finally wrote the opinion that made Foster a free man.

"The system," Foster said, "took terribly long."

He pauses, briefly; a man adding up all he is owed.

"This," Foster says, "is taking terribly long."


U.S. Navy-Marine Corps Court of Criminal Appeals decision in United States v. Foster

DOD IG's report on military justice

Status of military justice in the Navy


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McClatchy Newspapers 2011

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