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‘Obviously Fake’ Confession Among Other Errors Exonerates Brooklyn Man of Murder

By Nicholas Gardner

BROOKLYN – Kings County District Attorney’s Office along with The Innocence Project and WilmerHale Law Firm, released a 100-page report in early July, entitled “426 Years: An Examination of 25 Wrongful Convictions in Brooklyn, New York,” that details cases reviewed by the Kings County Conviction Review Unit (CRU) involving 25 individuals wrongfully convicted, and since exonerated.

The publication of this report comes at a time when thousands of people across the country continue to show their frustration with our nation’s criminal justice system.

Brooklyn District Attorney Eric Gonzalez said he released the report to “build community trust, especially now, when so many people in this country are expressing anger and despair with the system, we must reckon with and be transparent about the mistakes of the past.” He said he also wanted to “share the methods, analyses and findings of the CRU with others around the country who are engaged in this critical work, and with the public at large.”

Life sentence vacated after 7.5 years— In 2007, Miguel Foster was found guilty of murder in the second degree. He was sentenced to 25 years to life in prison, of which he served 7.5 years.

The CRU found his case problematic in many ways, including the sole eyewitness’ lack of credibility, the disregarding of four other eyewitnesses who did not identify Foster, the defense and prosecution’s questionable performance, police influence of identifications, the prosecution’s withholding of materials, and Foster’s “obviously fake” confession.

The incident in question occurred at a street corner in Brooklyn, where a gunman shot a 24 year-old male victim. Three eyewitnesses were interviewed directly following the crime, with a fourth witness coming forth following the victim’s wake.

This latter witness told investigators that she recognized the gunman as gang member “Ice Cold”, and that she had originally been too scared to come forward, but was compelled to do so after seeing Ice Cold at the victim’s wake.

This had upset her, and she agreed to meet with an investigator at a local park, where she identified Foster as Ice Cold in an array of photos. The detective then showed another eyewitness the same array, who also identified Foster as the shooter.

Foster was then arrested. After Foster’s arrest, the four eyewitnesses were presented with a lineup that included Foster; however, only one witness (the witness who met with investigators at the park) identified him as the shooter. One eyewitness even stated that he was “100% certain the shooter is not in this lineup.”

Foster initially told investigators that he was not involved in the homicide and did not know the victim. Foster retracted this statement, however, following the lineup, instead telling police that he knew the victim and was attempting to resolve a conflict involving a member of his (Foster’s) gang and the victim.

As Foster described the incident, he and the aforementioned gang member were walking down the street when they were confronted by the victim, who they believed to be drawing a gun. Foster’s fellow gang member shot the victim three times before fleeing the scene, and Foster proceeded to pick up the weapon and fired it once at the victim.

Foster claimed that he had missed the victim and ran home immediately after. This confession lead to Foster’s arrest for murder in the second degree.

Strangely, after a year in custody, Foster retreated from his story once again.

This time, Foster told investigators that he was not involved in the shooting, nor was he present at the scene. However, he did know who the shooter was— a local gang leader and personal friend known as Ice Cold.

According to Foster, Ice Cold made his way to Foster’s house following the shooting seeking a place to evade authorities and rid himself of the murder weapon. Foster also said that Ice Cold had been arrested for another shooting that occurred on the same block as the incident in question.

The trial prosecutor had access to the details of this case, where the sole witness who identified Foster as the shooter instead identified Ice Cold as the same man Foster was referring to.

This case was dismissed after the witness refused to further cooperate with investigators. Prosecutors went through with the trial, where Foster was found guilty of murder in the second degree and received 25 years to life in prison.

The CRU was skeptical of many aspects of Foster’s case, with the most prominent error existing in the first eyewitness’ identification. To begin, the eyewitness mentioned how she saw Foster at the victim’s wake, which prompted her to cooperate with investigators.

However, this could not have been true, considering Foster was incarcerated during this time. The eyewitness had also identified another individual as Ice Cold, not to mention that Foster was not even known by that nickname.

The prosecution decided to move on with the case with knowledge of this information, which they also failed to disclose to the press.

The eyewitness was relatively far away from the scene when the crime occurred, had at some point closed her eyes for six seconds, and was a known abuser of alcohol and marijuana. She had admitted to lying about seeing Foster at the victim’s wake, and confessed that the detective had suggested Foster to her in the first photo array she saw.

All told, the CRU deemed her testimony as totally discredited and concluded that she was not able to identify the shooter at the scene. They believe investigators both told her to testify against Foster and misled her into believing that she was one of three witnesses when she was the only one.

The CRU also contested the second eyewitness’ recount. This eyewitness failed to identify Foster in a more reliable lineup, and very uncertainly identified Foster during the trial. Another statement given by this eyewitness actually corroborated Foster’s claim that Ice Cold was the shooter.

Lastly, the CRU noted that Foster’s statement was telltale of a false confession. Foster was only 18-years-old at the time, and his confession contradicts many facts of the case. Foster claimed that he was pressured into placing himself at the crime scene, and that they did so by suggesting another suspect was cooperating and implicating Foster.

For these reasons, the CRU decided to vacate Foster’s conviction. In addition to the information already mentioned, the CRU found Foster’s counsel to be subpar, oftentimes making questionable decisions. After thoroughly investigating the incident, the CRU concluded that Foster’s claim was true, and that Ice Cold was indeed the actual shooter.

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About The Author

The Vanguard Court Watch operates in Yolo, Sacramento and Sacramento Counties with a mission to monitor and report on court cases. Anyone interested in interning at the Courthouse or volunteering to monitor cases should contact the Vanguard at info(at)davisvanguard(dot)org - please email info(at)davisvanguard(dot)org if you find inaccuracies in this report.

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