WATERTOWN A former Deferiet man twice convicted in Jefferson County Court of killing his ex-girlfriend in 1996 now claims in a federal action that he is wrongly detained.
Michial E. Foster, 58, filed a petition for the writ of habeas corpus in March in U.S. District Court for the Western District of New York, Buffalo. The action was transferred Thursday to U.S. District Court for the Northern District of New York, Syracuse.
Foster is serving a sentence of 25 years to life at Attica Correctional Facility for murdering Alicia C. VanVranken Wasilewski, his former girlfriend, at her South Meadow Street residence in May 1996. Her body was not discovered for more than a decade. It was found Sept. 15, 2007, in a wooded area off Ives Street Road. Foster was charged with the death two days later.
Following a trial in County Court in September 2008, Foster was found guilty of the killing. He appealed the decision, claiming that he should have had the benefit of counsel when he made incriminating statements to a confidential informant who had been placed in his state prison cell by the state inspector generals office. The state Appellate Division, Fourth Department, agreed, reversing his conviction in April 2010 and ordering a new trial.
At a second trial in October 2010, Foster again was convicted, and again he appealed. The second conviction was upheld by the Fourth Department in December 2012.
Foster has maintained in his appeals that it was impossible for him to have killed Ms. Wasilewski in the time frame outlined by prosecutors. Ms. Wasilewski recently had given birth to a premature boy and was making regular visits to Samaritan Medical Center to nurse the child. It was between scheduled feedings that prosecutors claimed Foster committed the murder.
In his federal motion, Foster contends, among other things, that there is new evidence in the case, maintaining that a nurses log from Samaritans neonatal unit from the day of Ms. Wasilewskis disappearance was not allowed into evidence at his trial.
Foster claims that had the log been entered into evidence, it would have proven his innocence, although he does not specify the probative value of the records.
He claims that prosecutors have offered differing times of death for Ms. Wasilewski in order to support their theory of when it occurred and that Foster was responsible. He argues that prosecutors cant change theory in midstream, contending that Ms. Wasilewski was alive and well at the time prosecutors claim she was dead.
As he has in previous appeals, Foster claims that inadmissible hearsay was allowed into testimony at both of his trials.
A retired nurse testified at the first trial that Ms. Wasilewski had told her that if she did not return to the hospital for a scheduled feeding for the baby, it was because she was dead.
The nurse was warned by prosecutors and Oswego County Judge Walter W. Hafner, who presided over the second trial, not to repeat the statement at the second trial, but she did.
Fosters attorney moved for a mistrial, which Judge Hafner denied.
The Fourth Department ruled that Judge Hafner properly instructed jurors to disregard the testimony, thus mitigating any prejudicial effect on Fosters defense.
In the federal action, Foster also contends that the appellate decision that overturned his first conviction and ordered a new trial did not go far enough, as the confidential informant whose full testimony was disallowed at the second trial had testified before a grand jury that voted to indict him on the murder charge.
Foster claims that a new grand jury should have been convened, with the new jury not allowed to hear the testimony that was later stricken.