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Yesterday we noted that the Senate Armed Services Committee has asked the DOD IG to look into the issue of appellate delay in the Department of the Navy. The Foster case figured prominently in the committee report's discussion of the topic.
As we've previously discussed, Foster was confined for nine years for raping his wife until the Navy-Marine Corps Court of Criminal Appeals finally decided his case and held that the evidence was factually insufficient to prove beyond a reasonable doubt that he raped his wife. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). The court also set aside the other findings of guilty in the case and authorized his retrial on those charges. The Marine Corps subsequently decided not to retry him.
Today, this week's Marine Corps Times arrived at Casa CAAFlog, featuring a cover story on the Foster case. Don Lamothe, Road to Redemption, Marine Corps Times, July 13, 2009, at 22. The article includes some good news and some not-so-good news. In the good news department, Foster has been promoted to staff sergeant, has received about $275,000 in back pay (minus $90,000 in taxes), has gotten married, and will get to stay in the Marine Corps until he is eligible to retire as at least a staff sergeant. In the not-so-good news department, SSgt Foster hasn't received the allowances he would have received had he not been convicted and confined and might not receive them at all, can't be considered for promotion to gunnery sergeant yet--though he might have been eligible to compete for promotion to E-8 by now had he not been convicted and confined--hasn't yet received all of the uniforms he's required to have, and is growing impatient and critical. The article quotes Foster as saying that while his isn't "bashing all Marines here, . . . I'm just disappointed with my unit and the way they've taken care of me."
The article also reports that Foster "said he has been warned not to speak out publicly about his situation without permission, with several MobCom officers telling him it could be considered a challenge to authority and lead to court-martial." MOBCOM's spokesman says that "Foster hasn't been warned not to speak with the media but ordered to use Marine public affairs when doing to to ensure the release of a 'full and accurate message.'"
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Military justice research links
- 2008 Military Judges' Benchbook web site
- AFMAN 51-203, Records of Trial (1 Oct 1999)
- AFPD 51-2, Administration of Military Justice (7 Sep 1993)
- Air Force Instruction 51-201, Administration of Military Justice (21 Dec 07)
- Air Force Rules of Professional Conduct
- AR 27-10, Military Justice (16 Nov 2005)
- AR 27-26, Rules of Professional Conduct for Lawyers (1 May 1992)
- COMDTINST M5810.1D, Military Justice Manual (17 Aug 2000)
- Congressional Research Service, Statutory Interpretation: General Principles and Trends (March 30, 2006 ed.)
- Congressional Research Service, The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States (2002) with 2006 supplement
- JAGINST 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General (9 Nov 04)
- JAGINST 5810.2A, Military Justice Regulations (17 Sep 93)
- JAGMAN, JAGINST 5800.7E (20 Jun 07)
- Law Library Microform Consortium, Military Law Collection
- LOC military law collection
- Manual for Courts-Martial (2008 ed.)
- Manual for Courts-Martial, United States (2005 ed.)
- Manual of the Judge Advocate General (JAGMAN), JAGINST 5800.7E (20 Jun 2007)
- Military Justice, Army Regulation 27-10 (16 Nov 2005)
- UCMJ (as of 28 Jan 2008)
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Posts
9 comments:
Its shameful, but expected that SSgt. Foster is being threatened with court-martial for speaking with the media.
I wonder if the Blood-Sucking Ex-Wife will try to get her hands on the $275,000 of back pay. Maybe she can get that no good shyster that sent him up the river to sue for spousal support.
Her and her flea bag attorney should be put in a straight jacket for what they did.
Foster needs to seek Tucker relief period. I dont understand why the government(the MARINES() continue to put this man through this. This is how people in the enlisted ranks loose faith in their leaders. The requirements on reversal on appeals and how it relates to compensation are very very clear yet these idiots continue to make a mockery of the system. No one is surprised the idiots in his command would try to intimidate him about making all Americans aware of how this great organization of old's reputation is being ruinned by this incompetent group of officers. These officers needs to made to walk the plank. The TC who tooks this case to trial should be ashamed of himself. I dont understand how by continuing to be belligerent on their treatment of this wronged Marine enhances the mission of the Marine corp. What would be the reason for this man not receive his allowances?, what happened to the compensation bill for service members wronged?
As a life long defense counsel, I often feel the outrage expressed toward TC, but I generally try to stifle it. Not knowing enough about this case, I cannot say whether TC ought to be ashamed of him/herself. Remember, in the military, prosecutorial discretion is a myth.
Now the SJA... that's another matter. No doubt this person had some say in the processing of charges, and likely had at least some role in the 9(!) year delay in appellate processing of this case.
As for the other government malefactors WRT pay and allowances, this is either a) incompetence at its worst, or b) someone inserting their own notions of justice into the case. Either way, it's a criminal act.
To state the obvious: Allowances are for food and housing, which were provided to him while he was in custody. He may have other claims against the gov't for the case, but he shouldn't get paid for those twice.
Anon 1210,
Please re-read UCMJ Article 58b(c).
See also UCMJ Art 75.
I can appreciate SSgt Foster's frustration. I once tried to help out a client whose conviction was overturned. DFAS does not part lightly with its money.
I don't know why he's having trouble getting his full pay and allowances. DFAS's own regulation, DoD Financial Management Regulation 7000.14R, Volume 7A, Chapter 48, section 4809 clearly contemplates restoration of both pay and allowances.
(regulation available here: http://www.defenselink.mil/comptroller/fmr/07a/07a_48.pdf)
I agree w/John Lancaster--go w/the Tucker Act. The Marine Corps blew its chance to do the right thing (and its credibility) by telling SSgt Foster to shut up and threatening a court-martial. Give the gov't a taste of its own medicine.
What an incredible story. You'd think after getting worked over like this, the USMC would do everything in its power to make this guy happy and whole. Why continue to nickel and dime this poor fellow after taking his liberty for NINE FREAKIN' YEARS! While I don't know much about the prosecution of the case at trial, the post-set-aside actions are disgraceful.
I believe what Sgt Foster said. After meeting him in May, it doesn't suprise me that they are trying to sweep this under the carpet. They don't want any bad publicity, they figure they've had enough. I hope they brace themselves for a class action lawsuit and another slap in the face whe Edwin's story is out.
The crap these men have gone through is appalling. Pay him and let him say what he wants. The Marine Corps is the one who messed up here, not Sgt Foster.
Oh, and MOBCOM's comment about not threatining him with a court martial--you're joking right? I wouldn't go through the Marine Corps public affairs office to report the TRUTH about anything.
So far in my dealings with the Marine Corps (regarding Edwin's case), they have yet to tell the truth. Hell, even the court is trying to sweep this under the carpet and pretend like it never happened.
When is this crap going to end? I fully agree that SGT Foater should file a lawsuit under the Tucker Act, I plan on doing the same. A multi-million dollar class action lawsuit may just be the eye opener the Marine Corps and military justice system needs.
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