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Demetrius Foster

Other Michigan Exonerations with Inadequate Legal Defense
On the evening of November 16, 1998, 24-year-old Demetrius Foster went to Monique Brassell’s home in Detroit, Michigan, where he played cards with Brassell, Brassell’s cousin, and a man nicknamed “Face.” Shortly after midnight, Foster went to a bedroom to have sex with Brassell.

At about 1 a.m., 22-year-old Bobby Morris, Brassell’s former boyfriend and the father of her two children, came to the house to pick up some of his belongings which he had left behind when the couple broke up four months earlier. Morris, who was accompanied by three friends, became enraged when he figured out that Brassell was having sex with Foster. He forced his way into the house and choked and punched Brassell. Meanwhile, Foster, Face and Brassell’s cousin had gone to the basement. Morris yelled at them to leave and then used a sledgehammer to smash the rear window out of Foster’s vehicle, which was parked in front of Brassell’s home.

Morris, saying he was going to get a gun, left with his friends Javan Carter, Jerry Wallace and Deborah Hollins, who was driving their car. Foster left as well—he would later say he went to the home of a friend, Arthur Daniels, to play cards and arrived there at 2:15 a.m.

At 2:45 a.m., as Hollins stopped the car at Morris’s home to drop him off, a man walked up and fired multiple shots from a handgun as Morris tried to flee on foot. The gunman then fled. Morris was found in a nearby alley, mortally wounded by a gunshot wound in the back.

Foster was arrested on May 25, 1999, after Hollins identified him as the gunman and Carter told police that Foster looked like the gunman.

Foster was charged with first-degree murder with a firearm. He went to trial in Wayne County Circuit Court in January 2000. Brassell recounted the events at her home and said that Foster was angry that his vehicle had been damaged, and that Foster overheard her giving Morris’s home address to the police officers who responded to her house.

Hollins identified the gunman as Foster, although she admitted that she told police that the gunman was 5 feet 6 inches to 5 feet 7 inches tall and weighed 180 pounds—while Foster was 6 feet tall and weighed 240 pounds. Carter testified that Foster looked like the gunman, but he could not say that Foster was the gunman. Wallace, the other passenger in the car, was unable to identify Foster as the gunman.

Before the trial, Arthur Daniels, a friend of Foster’s, sent a letter to Foster’s defense lawyer saying that Foster had been at his home from 2:15 a.m. until 6 a.m. on the morning of the shooting, playing cards. Foster’s lawyer spoke to Daniels on the telephone for 15 to 20 minutes but did not call Daniels as a witness. Foster did not testify in his own defense.

The jury first declared that it was unable to reach verdict on the first-degree murder charge, but after the judge instructed them to deliberate on a lesser charge, the jury convicted Foster of second-degree murder with a firearm. He was sentenced to 30 to 50 years on the murder charge plus a two-year term to be served consecutively for the firearm conviction.

On appeal, the Michigan Court of Appeals remanded the case back to the trial court for a hearing on a claim that Foster’s trial lawyer had provided a constitutionally inadequate defense by failing to call Daniels as a defense witness. In February 2002, following a hearing, the trial judge, Bruce Morrow, vacated Foster’s convictions and ordered a new trial.

Morrow said, “I think you know that alibi is the number one defense if you’ve got it. And I think flat out, anybody that doesn’t explore it, doesn’t present it, I don’t care in their opinion they think the witness is poor. That you leave for someone else to decide. I think it’s ineffective not to present an alibi defense if that’s what you have. Period.”

Morrow likened Daniels’ testimony to baseball player Barry Bond’s then-historic home run performance (he hit a season record of 73 home runs in 2001), saying that Daniels “would put this one in the seats and possibly get the record.”

In May 2002, however, the Michigan Court of Appeals vacated Morrow’s ruling. In March, 2003, the appeals court upheld Foster’s convictions. In 2004, after the Michigan Supreme Court refused to hear an appeal, Foster filed a federal petition for a writ of habeas corpus alleging that he received a constitutionally unfair trial because of his lawyer’s failure to call Daniels as a defense witness.

The District Court denied the petition, holding that Foster’s lawyer was deficient for failing to raise the alibi defense, but that Daniels’ credibility was so questionable that the jury would have convicted Foster despite his testimony, given the other “substantial” evidence against him.

In July 2012, the Sixth Circuit U.S. Court of Appeals reversed the dismissal of the habeas corpus petition and ordered that Foster’s convictions be vacated and that he receive a new trial. The appeals court disagreed that the evidence against Foster was substantial.

“Hollins is the only witness who could identify Foster at the scene of the crime,” the appeals court said, but her physical description of the gunman was significantly different from Foster in weight and height. In addition, she testified at the trial that the gunman was wearing a green jacket—consistent with Brassell’s testimony—but at the preliminary hearing, she said it was a blue jacket.

“In that light,” the appeals court said, “there is a reasonable probability that, had defense counsel called Daniels…the jury would have found Foster not guilty.”

Foster’s retrial was set for May 28, 2013. On that date, when the prosecution reported that there were no witnesses present, the defense moved that the charges be dismissed and the motion was granted. The prosecution appealed and in September 2014, the Michigan Court of Appeals upheld the dismissal of the charges.

– Maurice Possley

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Posting Date: 6/29/2015
State:Michigan
County:Wayne
Most Serious Crime:Murder
Additional Convictions:Illegal Use of a Weapon
Reported Crime Date:1998
Convicted:2000
Exonerated:2014
Sentence:32 to 50 years
Race:Black
Sex:Male
Age at the date of crime:24
Contributing Factors:Mistaken Witness ID, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No