Former deputy chief Keith Foster, who disgraced his Fresno Police Department badge when he was convicted of federal drug charges last month, has hired a new lawyer who plans to file motions with a goal of acquitting Foster or giving him a new trial.
“Keith is innocent,” said Fresno attorney Michael McKneely, who relived E. Marshall Hodgkins as Foster’s attorney on Thursday.
Foster, 53, was convicted May 23 in U.S. District Court in Fresno of two felony charges – conspiring to distribute heroin and marijuana. He faces up to 25 years in prison and hefty fines when he is sentenced in October.
McKneely said Monday that Foster hopes to prove his innocence before he is sentenced because the jury deadlocked on five counts involving the distribution of oxycodone and one count that Foster used a cellphone in furtherance of drug trafficking. After the verdict, Hodgkins told reporters that the jury voted 7-5 for not guilty on each deadlocked charge.
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Keith is innocent.
Michael McKneely, Foster’s new lawyer
The deadlocked charges, McKneely said, are “indicative of flaws in the trial.”
He said he plans to file a motion to acquit Foster based on insufficient evidence presented by the prosecution. He also will file a motion for a new trial if he finds ineffective assistance of counsel by Hodgkins, jury misconduct or judicial error by Judge Anthony Ishii.
He has asked Ishii to give him until Aug. 11 to file the motions. After the prosecution’s replies to the motions, a hearing will be held in September. Until then, Foster will remain free on his own recognizance.
Prosecutors have the option of retrying him on the six deadlocked charges. As of Monday, that decision had yet to be made.
It’s unclear why Foster got rid of Hodgkins. McKneely said Foster called him sometime after the verdict and said he’s innocent and didn’t get a fair trial. Hodgkins declined to comment Monday, saying it’s Foster’s right “to have an attorney of his choice.”
The move to replace Hodgkins, however, brought mixed reaction.
Carl Faller, a former federal prosecutor in Fresno, said Monday that it’s unusual to switch lawyers, “but not unheard of,” while the case remains unresolved. Faller also said “it’s difficult to win either motion” proposed by McKneely. To prevail, Faller said McKneely has to find “a substantial error made by Ishii (during the trial) or a serious irregularity with the jury.”
“It’s a very high standard for both motions,” he said.
It’s an issue of credibility because who do they believe – Foster or his lawyer.
Fresno attorney Charles Magill
Fresno attorney Charles Magill, who followed the Foster trial closely, said McKneely’s best bet is to find ineffective assistance of counsel. That’s because Foster and Hodgkins weren’t “on the same page” during the trial, Magill said.
The case against Foster was built on wiretaps and surveillance of him by agents with the FBI and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. Prior to the trial, Hodgkins stipulated that it was Foster talking on the wiretaps about buying drugs.
During the trial, Hodgkins told the jury in opening statements that Foster was acting as an undercover detective. The undercover operations were so secretive that Chief Jerry Dyer and other top-level police officials testified in Foster’s trial that they weren’t aware of them.
But on the witness stand, Foster testified that he was neither undercover nor “deep undercover.”
“That’s absurd,” Foster told the jury. Instead, he said the wiretaps show he was collecting information about drug dealing that he turned over to narcotics detectives.
Magill said on Monday that Foster’s testimony put him at odds with Hodgkins, which could give rise to a motion of ineffective assistance of counsel. Foster’s testimony also put the jury in a bind, Magill said. “It’s an issue of credibility because who do they believe – Foster or his lawyer,” Magill said.
Because Hodgkins tried the case, it would be difficult for him to write a motion for a new trial that criticizes his trial tactics, Magill said. Therefore, it’s best for another lawyer to determine whether Foster had competent representation, Magill said.
McKneely, who has been a lawyer since 2001, said it is not his plan to besmirch Hodgkins. “He’s an excellent lawyer,” McKneely said. But, he said, trials are not perfect and lawyers, judges and jurors sometimes make mistakes. “People lose sight that no one knows what really happened,” he said. “That’s why it’s good to have another set of eyes to look over the trial transcript and see if any errors were made.”