Editor’s note: This is the first of a two-part series revisiting discrepancies in the Fiske and Starr reports on the death of White House Counsel Vince Foster.
The Wall Street Journal finally let some of its readers know a few details about the continuing investigation into the July 20, 1993, death of former Deputy White House Counsel Vincent Foster that WND readers have known for a while. However, those details were disclosed to
readers of WSJ’s free online service, OpinionJournal.com, not readers of the hardcopy WSJ.
Prompting the disclosure was OpinionJournal.com’s Aug. 16 republication of a WSJ editorial from July 5, 1994, about former Special Counsel Robert Fiske’s investigation of the death. Supporting Fiske’s conclusion, the editorial states, “Barring some unimaginable new disclosure, we find no reason to
doubt that the former Deputy White House Counsel committed suicide in Fort Marcy Park, as first reported.”
Responding to that editorial in an e-mail that was published on OpinionJournal.com, I stated that it would be unfortunate if the WSJ feels the same way today about the death as it did in July 1994. As WND readers know, there have been very significant disclosures since that editorial was written proving that Fiske’s report and the 1997 report on the death by Kenneth Starr’s Office of Independent Counsel cannot be trusted. Once the credibility of those reports is destroyed, all that is left to support a belief in the government’s story is the raw evidence itself, not the opinion of Fiske or Starr.
Those OpinionJournal.com readers who saw my response learned that nearly 3,000 pages of that evidence, mostly documents generated by the United States Park Police and FBI investigations of the death, were publicly released by the Senate Whitewater Committee in January 1995. Supposedly Fiske and Starr based their reports on these official documents and others that have not yet been publicly released. Yet, when those documents are analyzed along with other documents that were later discovered in the National Archives or released pursuant to Freedom of Information Act
requests and lawsuits, it becomes apparent that there is not enough evidence to support the government’s suicide-in-the-park story and more investigation is needed.
I told OpinionJournal.com’s readers that I am an attorney prosecuting a federal Freedom of Information Act Lawsuit for photographs from that investigation against the Office of Independent Counsel in federal district court in Los Angeles. On July 12, 2000, a 2-1 published decision by the
United States Court of Appeals for the Ninth Circuit said, “Favish, in fact, tenders evidence and argument which, if believed, would justify his doubts” about the government’s official conclusion; see Favish v. Office of Independent Counsel (pdf file, requires Adobe Acrobat). The court’s qualification of “if believed” is significant because I did not ask the court to believe me. The evidence I tendered consists entirely of official government documents, mostly from the Park Police and the FBI. My credibility is not at stake; the government’s is. The dominant media did not report the Ninth Circuit’s statement to the public.
My published response also stated that on Jan. 11, 2001, the district court ordered the OIC to publicly release five original Polaroid photos of Foster’s body as it laid in the park. That also was ignored by the dominant media. The court’s decision is on appeal.
Left unpublished by OpinionJournal.com was most of my description of the evidence that I presented to the district and appellate courts. However, to its credit, opinionjournal.com published my website address so that its
readers could obtain the court documents and much of the evidence for themselves.
Among news organizations, WND has taken the lead in providing its readers with details about my lawsuit, the FOIA lawsuit by Accuracy in Media and the now-defunct lawsuit by Foster investigation witness Patrick Knowlton and his attorney John Clarke, who succeeded, over objections by Kenneth Starr, to get an appendix added to Starr’s report on the Foster death that was critical of Starr’s conclusion.
These lawsuits are important and newsworthy for several reasons. Primarily, they provide a vehicle to present the courts and the public with an analysis of the evidence from the government’s own investigative files that the dominant media has ignored. This evidence has been analyzed by non-government citizen researchers Hugh Sprunt, Hugh Turley, Michael Rivero, Rita Snook, Ray Heizer, Reed Irvine, J.C. Huntington and others, without whose work the lawsuits would not have been possible.
The lawsuits also do something else that the dominant media should be doing. They force the OIC and Department of Justice, under both Bill Clinton and Janet Reno, and George Bush and John Ashcroft, to either defend the Fiske and Starr reports, or allow the rest of the evidence to be publicly released. So far, both administrations have chosen to defend the reports. You can decide for yourself whether their defense has any merit. My appellate briefs document the following about the Fiske and Starr reports and the government’s defense of those reports. You will notice that the
great bulk of the government’s deception is done by using a favorite trick of sneaky lawyers, omitting important facts, as opposed to express falsehoods. There are many other examples of deception, by omission and commission, in the Fiske and Starr reports, but these are most of the examples I’ve presented to the courts:
The amount of physical damage is not fully reported by Starr.
The evidence does not show what one would expect from a .38 caliber high-velocity gunshot into the mouth: massive amounts of blood coming out of the nose and mouth, broken teeth from the recoil of the gun, a significant hole in the back of the head with lots of blood, brain and bone spatter on the surrounding area.
To the contrary, a Park Police officer who examined Foster’s body at the park testified that he saw a “pool of blood under his head, gun in his right hand, appeared to be a .38 caliber revolver, no sign of a struggle, no other obvious signs of trauma to the body.” This same officer reported that there “was no blood spatter on the plants or trees surrounding decedent’s head,” and testified that he did not observe any “blowout” from the back of the head. Additionally, an FBI report of its interview with the only medical doctor to view Foster’s body at the park says, “no blood was recalled on the vegetation around the body.”
Starr omits these observations from his report.
In papers filed with the district court, the OIC did not dispute these facts.
Evidence that initially there was no gun in Foster’s hand is not fully reported by Starr.
Although the official government story holds that Foster was found with a gun in his hand, the first person who officially found Foster’s body said that there was no gun in his hand. This witness testified that Foster’s hands were palms-up and empty. In concluding that this witness “simply did
not see the gun that was in Mr. Foster’s hand,” Starr cited the witness’ FBI interview in which the witness said that it was possible there was a gun on the back of Foster’s hand that he might have missed.
But Starr failed to tell the public that one of the body site photos shows a gun in Foster’s right hand that eliminates the possibility of there having been a gun on the back of Foster’s hand that went unseen by the witness. This photo, leaked to ABC-TV and published in Time and Newsweek, shows Foster’s gun-hand palm down, while the witness said the hand was palm up and empty. This photo shows the gun underneath the palm of Foster’s right hand with the back of Foster’s hand facing up. The gun is in a position where the witness could not have missed it if it was there when he saw Foster’s hand. This means that the only possible condition which the witness agreed
would account for his not seeing the gun is a condition that did not occur.
Starr also failed to tell the public that the witness testified that his concession (that he could have missed seeing the gun) was based on the FBI’s representation that Foster’s hands were palms-up with the gun concealed on the other side of Foster’s hand. The witness further testified that the FBI would not show him the photo. But when he subsequently saw it, he testified that it was not a picture of what he saw. Therefore, Starr failed to tell the public that he relied upon a statement by the witness that the witness later testified was based on a false representation by the FBI.
In papers filed with the district court, the OIC did not dispute these facts. Instead, the OIC stated that Starr’s report “does discuss the statements of the confidential witness. …” However, the point is that Starr’s report deceptively fails to discuss the most important statements by the witness, as described above. Apparently, the OIC cannot defend the Starr report on this issue.
Both Starr and Fiske used invalid gun identification.
Identification of the gun was a major problem for the government. Starr failed to tell the public that his predecessor, Fiske, who also issued a report on the death, used an invalid gun identification from Foster’s wife at the time of his death, Lisa. Nine days after the death, the Park Police showed Lisa a photo of the official death gun, which is blued steel and appears black. According to the Park Police notes of the interview, Lisa said she could not identify the gun because it was not silver. The FBI said that 10 months later, in May 1994, it showed Lisa the official death gun and she “believes that the gun found at Fort Marcy Park may be the silver gun which she brought up with her” from Arkansas. Fiske then reported, without mentioning the gun colors, that Lisa identified the official death gun.
Fiske’s use of Lisa’s statement was deceptive. If she was shown the black official death gun at this May 1994 interview and simultaneously identified it as being silver-colored, then she failed to give a valid identification of the black official death gun. Likewise, if she was shown a silver-colored gun at this interview, then she failed to give a valid identification of the black official death gun. No matter what color gun Lisa was shown at this interview, given her reported response, it was deceptive for Fiske to use her response as if it were a valid identification of the black official death gun.
Starr failed to explain why Fiske used Lisa’s invalid gun identification. Starr also failed to explain why, if Lisa was shown the black official death gun in May 1994, she reportedly simultaneously described it as silver without any of the FBI agents or attorneys present saying anything about
such a bizarre response. Starr also failed to tell the public that Lisa’s reason for not identifying the gun in the photo shown to her nine days after the death was because it was not silver. Also absent from Starr’s report is that the FBI expressly stated that Lisa believed the gun shown to her in May
1994 was silver.
The effect of Starr’s omissions are to obscure the possibility that Lisa was deliberately shown the wrong gun – a silver gun – in May 1994 so that there would be something in the record that could be presented as a Foster family member’s “identification” of a gun, without telling the public that she had identified a gun that was not found with the body.
In papers filed with the district court, the OIC referred to my statement that “Starr failed to explain why Lisa [Foster] reportedly identified a black gun as silver and why this invalid ‘identification’ was treated as valid” and stated that “Contrary to Favish’s assertion [the Starr report
on Foster’s death] at pp. 79-85 analyzes in detail the description and ownership of the gun, including Mrs. Foster’s recollections.”
However, although Starr’s report does contain such analysis, that analysis is inadequate because it still fails to explain why Lisa reportedly identified a black gun as silver, as it was being shown to her, in May 1994. If her description of the gun as it was being shown to her during the 1994 interview was erroneous, her error cannot be explained by a faulty memory. Her perception at that interview had nothing to do with memory. She was reporting her perception of a gun as it was being shown to her during the interview. Any such erroneous description only can be explained by Lisa lacking an ability to tell black from silver, her lying during the interview about her perception or the FBI agent failing to accurately report what Lisa said at the interview.
There is no evidence in the public record that Lisa is unable to tell black from silver, that she lied about her perception or that the FBI failed to accurately record what she said. Moreover, had she lied about her perception of the gun as it was being shown to her, characterizing a black gun as
silver, this should have elicited comment from those present. No such comment appears in the public record.
Starr came closest to explaining these issues when he said that in November 1995 Lisa identified “the gun recovered from Mr. Foster’s hand … although she said she seemed to remember the front of the gun looking lighter in color when she saw it during the move to Washington.” Thus, Starr implied that there never was a silver gun and for some unexplained reason, Lisa just thought all these years that a black gun in her home was silver!
But Starr’s implication that Lisa has a faulty memory about the color of the gun she and her husband owned is an inadequate explanation. Starr completely failed to explain how it is possible that Lisa could have been shown a black gun in May 1994 that she reportedly simultaneously described as silver. Again, her reported description at the May 1994 interview was not dependent on any memory of what a gun looked like when she saw it in the past. It was dependent on her ability to describe what she was being shown at the time of her description.
If she was shown a black gun at this interview, the OIC must explain why Fiske’s deputy, Roderick Lankler and Lisa’s attorney, James Hamilton, and at least two FBI agents apparently failed to note that in their presence, she described a black gun as being silver. The OIC also must explain why Fiske used that identification as if it were a valid identification.
Starr’s failure to explain these matters suggests that the more sinister explanation is true: At the May 1994 interview, Lisa correctly described the color of the gun she was shown at that interview. This is because the gun shown to her at that interview was silver and it was not the black official
death gun. In this view, she was deceptively shown a silver gun it was known she could recognize so that there would be something in the record that could be presented as an “identification” of the black official death gun.
According to Starr’s report, Lisa “stated to the OIC in November 1995, when viewing the gun recovered from Mr. Foster’s hand, that it was the gun she unpacked in Washington but had not subsequently found. …” However, this does not explain why Lisa would have described a black gun that was shown to her in May 1994 as silver, as it was being shown to her. Moreover, a verbatim transcript of this November 1995 interview is not public and therefore cannot be evaluated properly.
Starr’s report, and the OIC’s papers filed in the district court failed to explain why it was proper for Fiske to use Lisa’s May 1994 “identification” as if it were a valid identification of the black official death gun.
In its recently filed papers, the OIC stated that I “referred to some confusion among the statements of Mr. Foster’s widow regarding whether the gun she had been shown was black or silver.” It is more than “confusion.” It is conclusive proof that Fiske used an invalid “identification” from Lisa as if it were valid and Starr’s report did nothing to dispel that fact.
It also should be noted that Fiske and Starr failed to reconcile Lisa’s other reason for her initial failure to identify the black official death gun, i.e., because it didn’t have a “large barrel,” with their conclusion that she has identified it, despite the fact that it does not have a large barrel.
In papers filed with the district court, the OIC did not dispute any of the facts stated above relating to Lisa’s alleged identification of the black official death gun.
Tomorrow: Allan Favish explains how Starr misled the public about the police observance of the autopsy, Starr’s neglect of the FBI’s “no exit wound” memo, along with government obstruction of justice.