Tuesday, March 17, 2009

Article on Sgt Foster's release from USDB

We previously discussed NMCCA's unpublished but significant ruling setting aside the findings and sentence in the Foster case. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). Via NIMJ's web site, here's a link to a San Diego Union Tribune article about Sgt Foster's release from the USDB after spending more than nine years in confinement.


Anonymous said...

This is positively embarrassing for the USMC (and its parent organization, the US Navy). The Navy/Marine appellate system should be ashamed for letting this case languish for so long.

Anonymous said...

The criminal law shop that handled this case and the convening authority should be more embarrassed for letting it get referred in the first place.

Anonymous said...

First, let us note that ADC filed 20 enlargements of time before it filed its brief. It is also worthy to note that 2 of the reasons NMCCA granted relief were never raised by ADC. While I agree there is blame on many hands, shame on ADC too (who I believe was a paid civilian defense counsel).

Anonymous said...

I am not sure how many enlargements Mr. Sheldon was responsible for. However, I can say from experience that NMCCA routinely and without any justification gives civilian counsel any enlargement requested. Several times counsel have been told that "this is the last enlargment and a request for another enlargement will result in the case being submitted on its merits." Another enlargement is requested and the Court backs down with no consequences.

Anonymous said...

In cases of egregious defense delay, the N-MCCA should do what the Air Force Court has done in the past--make the civilian defense counsel appear at a hearing before the panel to explain why he/she needs another enlargement and when he/she expects to actually file the brief. It takes the pressure off the military appellate defense counsel who has likely read and read the case over the course of several years (and had to continually ask for enlargements of time) while the co-counsel had other fish to fry.

Anonymous said...

NMCCA did do that, they called defence counsel in on a chambers conference to explain themselves and press for information. Then the former Chief Judge specifically told GAD that he "disfavored" chambers conferences and the government should not press for them. Regardless, even after multiple chambers conferences and filings the Court still allows civilian defense counsel to dictate the scheduling.

Anonymous said...

But let's not take NMCCA off the hook here, with its multiple "lead judges" being cited as an excuse for the delay.

If each of the three judges would do their job as Congress intended, there would be no "lead judge" as all three would have had equal visibility.

There are many failures in this case for the JAG to look at, and I hope that one of them is at NMCCA.

I hope that he provides direction in no uncertain terms that an appellate judge cannot ethically sign his name to an opinion unless he has actually read the record of trial and the pleadings of the Appellant and the Government.

I know, I know, it sounds pretty radical...

Anonymous said...

Can anyone who has clerked for a Federal Appellate Court Judge, or even a state appellate judge provide any insight on whether those judges are required to read the entire record, or do so out of practice and custom?

As the military system is always being compared to the civilian system, I am curious as to what they do.

Ama Goste, what would the AFCCA have done if civilian counsel failed to show? I do not believe there is any real contempt power and pressing on without the benefit of the counsel for the appellant is akin to treading on thin ice. I recall that the AFCCA recently decided a case without the appellant's brief and, I could be wrong, but I think CAAF bounced that. So what are the solutions? The problem may be the statutes as CAAF is unlikely to back-up an attempt by the CCA to enforce orders that render an appellant without counsel as it implicates the statutory framework of mandatory appeal implemented by Congress.

Anonymous said...

Civilian judges don't have the duty under Article 66 to determine factual sufficiency, so they may not read the record.

But where Congress has intended military appellate judges to provide a secondary factual review, I absolutely think it is dereliction of duty to sign off on the sufficiency of a conviction without having personally read the facts.

That would be like a jury having one member listen to the trial while the others slept in the deliberation room, and that one member then backbriefed them on what happened, and then they all "vote" on guilt or innocence.

I don't care how smart, objective or competent that one member's backbrief is, that is still a mockery of the system. And that is what you have when one lead judge (or his clerk) summarizes the facts of a case for everyone else.

Anonymous said...

The CCA's just can't seem to win: In Roach the ADC didn't file a brief and didn't justify a delay so after a warning to the ADC that the Court was going to decide the case on the merits if nothing was submitted the Air Force court made its ruling. But CAAF slapped them back down for that....BTW in response to the prior post, I'm pretty sure all courts have contempt powers of some sort. At the very least they can rip apart a lawyer in the opinion.

John O'Connor said...

I agree with Anon 1133's comments at 12:56.

Angela Ehlers said...

I agree that this case is embarrassing to the USMC and USN. Sgt Foster's case is just one of the many that are "falling" through the cracks of a broken system. My husband Edwin is going through a similar situation now.

I am outraged that this is even allowed to happen. I have spoken to Sgt Foster and feel bad for what he went through, but it happens all too often in these types of cases. JAG likes their 90% conviction rate in general court-martial cases like these.

My husband Edwin is currently incarcerated at Leavenworth DB for a crime he did not commit. Just like Foster, there was no physical evidence only hearsay testimony. In Edwin's case the father of the alleged victim lied about taking his child to the Beaufort Naval Hospital when he learned of the allegations.

Once NCIS got the case they did not notify the Family Advocacy Program (FAP) per DoD Directive 6400.1, so the police and child protective services were never involved.

There is even a witness who was present when the mother of this child told the alleged victim to blame my husband. This witness was not allowed to testify (even though she was at the trial) because, as the witnesses mother put it "she (the witness) wouldn't change her story to match what the family accused Edwin of doing, so they wouldn't let her testify".

Can we say prosecutorial misconduct??? Possible unlawful command influence?? Are these not killers of court cases in the military?

There is another case, SSG William Perez USAF, ACM 36110, where his mother-in-law had her 2 young daughters accuse SSG Perez of sexually assaulting them. The children later recanted and stated that their mother made up the stories and told them to lie.

I ask, what the hell is wrong with these people? And what is wrong with our judicial system that allows these lies to perpetuate and causes the lives of innocent people to be ruined? It’s all politics. People want to believe the worst and unfortunately believe lying children and their parents.

In Edwin’s case, I’m curious to find out why the father of the “alleged” victim lied about taking her to the hospital? He told NCIS that day after he supposedly took her there that he was there several hours and denied treatment after speaking to staff members. Now I have documentation showing that he was never there and neither was his child in the month of June 2004. Where did he take her and why lie about? Unless maybe he has something to hide? Being that he is an Religious Program Specialist in the Navy and a victims advocate, he should know how the hospital system works and that they would be required to get the local authorities involved when the victim is a child, his family would have been investigated. He couldn’t have that so he by-passed the system by lying about where he was and what he did.

Then NCIS did a bang-up job investigating the whole case. Why didn’t NCIS find out if the child and her father were actually at the hospital? They acquired her medical records on June 16, 2004 and noted in the Acquisition of Medical Records that they look through her whole medical file and noted nothing of any importance. Where are the records from this supposed visit? There are none, and they didn’t think to check this? I can’t believe we pay these people to do their jobs.