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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?
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:
- Heather Foster made no report to medical or law
enforcement authorities of the rape,
- She engaged in long-standing intimate contact with her
³rapist² for years following the incident, including a
home video in which she plays a starring role.
- Prosecutors presented no forensic or contemporaneous
testimonial evidence that corroborated Heatherıs rape
allegations.
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 Œan
impressively qualified expert's stamp of truthfulness on a
witness' story goes too far.' An expert should not be
allowed to Œgo 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
http://www.ejfi.org/
455 Bear Creek Road
Colorado
Springs, Colorado 80906-5820
Personal home page:
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