A top cop once chose his badge over family. As his trial begins, that decision could cost him

Fifteen years ago, Keith Foster made a decision that could come back to haunt him in his coming drug-trafficking trial.

Fresno’s former deputy police chief chose to stay silent, instead of standing with his family, after officers shot and killed his unarmed nephew, Foster’s sister said.

Keith Foster is scheduled to stand trial next week on federal drug trafficking charges, the last defendant in a case that has ensnared two of his nephews, cost him his dream of leading his hometown police department and stunned his longtime friend, police Chief Jerry Dyer.

When Keith Foster’s trial begins, the witnesses listed for the prosecution include his nephew, Denny Foster – an alleged co-conspirator and the older brother of Eric Foster, who was shot to death in a confrontation with Fresno police 15 years ago.

The killing of the 25-year-old in August 2002 prompted his family to protest and file a federal civil rights and wrongful death lawsuit against the Fresno Police Department.

But as the family publicly questioned police, Keith Foster kept his distance, even after an autopsy showed Eric Foster, a robbery suspect, was shot four times in the back, said Foster’s sister, Kelly Foster-Nelum.

“Keith chose his badge over his family,” said Foster-Nelum, who is speaking out for the first time since her brother was arrested in March 2015. His trial is scheduled to begin Tuesday in U.S. District Court.

In a wide-ranging interview, Foster-Nelum, a past president of the Fresno chapter of the National Association for the Advancement of Colored People, talked about how her brother’s case has taken a toll on the family, how he hurt her feelings by blaming his family for his troubles, and her fear that he may not get a fair trial, largely because she says their nephew Denny Foster holds a grudge against Keith Foster.

Court records say Denny Foster, now 46, has accepted a plea deal in the drug-trafficking case and is listed as a prosecution witness. (Denny Foster faces up to nearly five years in federal prison, but in exchange prosecutors dropped 10 other felony charges.) Foster-Nelum believes Denny Foster could lie on the witness stand to get back at his uncle.

“Denny is going to throw Keith under the bus,” Foster-Nelum said.

“But why should anyone believe him?” she said, noting that Denny Foster admitted in his plea deal to being involved in criminal activity.

Foster-Nelum said she will be in the courtroom when the trial starts because of her unconditional love for her brother. But she added: “Keith made his own choices.”

‘A difficult time’

The case against Keith Foster, the former No. 2 man for Dyer, is the product of federal wiretaps and extensive undercover surveillance. A federal indictment charges him with participating in three separate conspiracies to distribute heroin, oxycodone and marijuana.

His co-defendants – nephews Denny Foster and Randy Flowers, Denny’s girlfriend Jennifer Donabedian, and Sarah Ybarra, Rafael Guzman Jr. and Ricky Reynolds – have accepted plea deals. Only Denny Foster has agreed to testify against Keith Foster.

The ill-feelings between Keith and Denny Foster began shortly Eric Foster was killed on Aug. 10, 2002, in an orchard near Martin Luther King Boulevard and Jensen Avenue, Foster-Nelum said. Her nephew Denny is Eric’s older brother.

While Keith Foster stood on the sideline, Nelum-Foster said, their family filed a civil rights lawsuit that contended Eric Foster posed no threat to the officer who shot him because he was unarmed and a police dog was clamped down on the man’s lower back, rendering him helpless. The Fresno Police Department and the District Attorney’s Office, however, ruled Eric Foster’s shooting was justified, saying officer Russell Cornelison feared Eric Foster was going to pull a gun from his waistband. Police later found a gun and a robbery victim’s wallet in Eric Foster’s overturned truck. Police also said Eric Foster was high on PCP and refused police commands to show his hands.

At a rally in late August 2002, the family’s lawyer, Hunter Pyle of Oakland, accused police of excessive force. “Whether or not he was on drugs is no excuse for him being shot in the back four times when he was unarmed in an orchard and not a threat to the community,” Pyle said.

Standing nearby was Dyer, who told the gathering that he is close to the Foster family, especially to Keith Foster, who at the time was the chief’s administrative assistant. Dyer said Foster had been asked and agreed “not [to] partake in the investigation.”

“It’s a difficult time for [Keith Foster]. It’s a difficult time for me,” Dyer said.

In July 2005, a federal judge ruled in favor of the Police Department and dismissed the family’s lawsuit in U.S. District Court.

‘A slap in the face’

Denny Foster could not be reached to comment for this story. But his lawyer, Mark Broughton, said Foster-Nelum’s assertion that Denny Foster will lie on the witness stand “is baloney.”

Broughton said he doesn’t know whether Denny Foster will testify; he said that’s up to the prosecution. “If called to testify, he will be truthful,” Broughton said.

Keith Foster, who resigned from the Fresno Police Department a week after his arrest in March 2015, is out of custody on his own recognizance. His attorney, E. Marshall Hodgkins, declined to talk about Foster-Nelum’s concerns and any defense to the charges.

Foster-Nelum said her brother hasn’t told her anything about his case. But she said she is angry at him because when he was arrested he blamed his family for his troubles.

According to court records, a day after his arrest, Keith Foster was headed to the federal courthouse with FBI Agent Daniel Harkness for his first court appearance. While in the car, he spontaneously blurted out “his family got him into this.”

Foster-Nelum also said it was wrong for her brother to tarnish the family’s name.

“We were raised to be responsible and accountable for our actions,” she said. “For my brother to blame his family is a slap in the face to our parents.”

Foster-Nelum is married to community activist Johnny Nelum, who also is a past NAACP president in Fresno. Over the years, Foster-Nelum said she has fought against injustice in Fresno and has seen many times how non-minorities get breaks, while people of color often don’t.

She brought up the case of Damon Dyer, who is Chief Dyer’s nephew. In June 2008, Damon Dyer was sentenced to three years probation and a year in the county jail after he pleaded guilty to selling oxycodone and cocaine to an undercover informant on multiple occasions, court records say.

The sentence imposed by Fresno County Superior Court Judge Rosendo Peña was well below the 13-year prison term sought by the prosecution and recommended by the county Probation Department. Even Peña noted that Damon Dyer, then 27, has “not performed well on probation” stints resulting from past brushes with the law.

But the judge also noted that Damon Dyer had “endured more than the typical defendant” because of his relation to Jerry Dyer and the case’s subsequent notoriety.

But Foster-Nelum wondered if her brother will get the same benefit of the doubt at his drug-trafficking trial.

God-fearing parents

Foster-Nelum said the public needs to know that she and her brother were raised by God-fearing parents: Irwin Foster Sr. was a church deacon and his wife, Dorothy Foster, was a foster mother to more than 400 children.

Foster-Nelum said her parents raised them to tell the truth and help others in need.

Irwin Foster Sr. had 14 children – eight with his first wife, Annie Foster, and four children with Dorothy Foster. Irwin and Dorothy Foster also adopted two children.

As a church deacon, Irwin Foster Sr. ran a prayer service three times a week and counseled people with drug or alcohol problems, Foster-Nelum said. He also led the drive to bring a shopping center to southwest Fresno. The southwest policing substation at the shopping center is named after Irwin Foster Sr., who died in 1999. Dorothy Foster died in 2010.

“Our father and mother were good people,” Foster-Nelum said. “That’s why Keith’s arrest is so embarrassing. Never in a million years would I think this would happen.”

Keith Foster is now 53 years old. Foster-Nelum will be 51 on June 12. They grew up together in the family home on Poppy Avenue near Elm and Church avenues in southwest Fresno.

As children, Foster-Nelum said her brother was a smart, sensitive kid who liked to play cowboys and Indians. His life changed around the sixth grade when a bully took his lunch money and ordered him to steal candy from a local store. His sister gave this account:

After Keith Foster stole the candy, Foster-Nelum told their father. Their father grabbed his son and spanked him as they walked to the store. Irwin Foster Sr. then told the store owner that Keith Foster would be working for him until he paid his debt for stealing the candy.

Irwin Foster Sr. was not done. He walked to the home of the bully and confronted his mother. According to Foster-Nelum, her father told the woman that he had “just tanned his son’s hide” and that he was going to “tan her son’s hide if he ever bullied Keith again.”

The bully left Keith Foster alone. But the incident had a lasting impression on Keith Foster. He decided to become a police officer, his sister said. “I’m going to put bad guys in jail,” Keith Foster said, according to his sister.

Going to be a policeman

Foster-Nelum said her brother planned a rigid timeline to achieve his goal. He took karate lessons and tested out of Roosevelt High School early.

He was among eight black officers who went to the State Center Peace Officers Academy in the mid-1980s — a stepping stone to landing a job with the Fresno Police Department. At the time, the police force was nearly all white.

He started in patrol in June 1987, then went to narcotics investigation. His boss was then-Sgt. Jerry Dyer.

In August 1996, Keith Foster, then a sergeant, was shot and wounded during a raid at a drug house in southwest Fresno. He suffered two superficial wounds in the upper body and abdomen and spent several hours at Valley Medical Center, the former county hospital.

In April 2000, Keith Foster became a lieutenant. Five years later, he was promoted to captain and put in charge of the Management Support Bureau, where he was responsible for hiring and training personnel. He also was northwest policing commander.

In 2007, Dyer promoted Keith Foster to deputy chief, putting him in command of the Police Department’s support division, which includes records, video policing and graffiti eradication efforts. In March 2013 he became commander of the patrol division, overseeing the city’s four policing districts.

His career ended in late March 2015 when federal investigators arrested him after he allegedly took a stash of oxycodone to Flower’s home. The next day, as he headed to the courthouse with a federal agent, court records say, Keith Foster blurted out that “he had let his boys down and the community down.” Keith Foster also said “he had let Jerry Dyer down, (that) he was next in line to be the police chief, and he just wanted to talk to Jerry Dyer,” court records say.

Keith Foster resigned on April 3, 2015, one week after his arrest. His sister said her brother’s words were hurtful.

“He talks about these boys he let down. What about his family?” Foster-Nelum said.

“Keith has done some great things in his life,” Foster-Nelum said. “But he also is accused of some horrible things. I pray that the scales of justice be balanced by way of Keith because the federal prosecutor has made deals with the devil.”

This story was originally published May 5, 2017 at 11:19 AM with the headline "A top cop once chose his badge over family. As his trial begins, that decision could cost him."