The report by Kenneth Starr’s Office of Independent Counsel about
President Bill Clinton’s conduct in the Monica Lewinsky matter caused
much controversy, but there was little or no argument about the report’s
factual accuracy. This is not the case with Starr’s other report, the
one in which he concluded that former Deputy White House Counsel Vincent
Foster committed suicide in Virginia’s Fort Marcy Park in July 1993.
That report, publicly released in October 1997, is replete with
significant factual omissions, distortions and conflicts with the
underlying official investigative record.
Some of those omissions, distortions and conflicts are about to be
scrutinized by the United States Court of Appeals for the Ninth Circuit
in a Freedom of Information Act lawsuit I filed seeking photographs of
Foster’s body as it laid in the park. The OIC is withholding the photos
on the basis of the privacy exemption in the FOIA, claiming that
Foster’s surviving relatives would suffer emotional grief if the photos
were released because the photos are “graphic, explicit, and extremely
upsetting.” Oral argument is scheduled for Nov. 1, 1999, in Pasadena,
Calif.
But the United States Supreme Court has never defined privacy as a
broad right to be free from emotional grief. Indeed, the Court’s leading
opinion on the FOIA’s privacy exemption, Department of Justice v.
Reporters Committee (1989), holds that privacy is defined as the freedom
to control information about oneself. Thus, given that there is no
information about Foster’s relatives in these photos, they do not have
any privacy interest in them.
While some lower courts have held that surviving relatives do have
privacy interests in photos of their deceased relatives, these courts
deviated from the Supreme Court’s ruling and thereby gave the FOIA’s
privacy exemption a broad interpretation that lacks support in the
FOIA’s legislative history and Supreme Court precedent. These rulings
further conflict with other Supreme Court opinions holding that the FOIA
exemptions should “be narrowly construed” to “ensure maximum disclosure”
because the “basic purpose of FOIA is to ensure an informed citizenry,
vital to the functioning of a democratic society, needed to check
against corruption and to hold the governors accountable to the
governed.”
Moreover, the claim by the Office of Independent Counsel (OIC) that
the photos are “graphic, explicit, and extremely upsetting” is dubious.
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 United States 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.
But even if Foster’s relatives do have a privacy interest in the
photos, they still must be released if that interest is outweighed by
the public’s interest in monitoring the government’s administration of
justice. Therefore, in order to demonstrate the exceptionally high
public need for disclosure in this case, I presented the Ninth Circuit
with several of the many examples of omissions, distortions and
conflicts infesting Starr’s Foster report.
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 rear 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 rear of Foster’s hand that went unseen by
the witness. This photo, leaked to ABC-TV and published in Time
magazine, 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 rear 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.
Identification of the gun was a major problem for the government.
Starr failed to tell the public that his predecessor, Robert Fiske, who
also issued a report on the death, used an invalid gun identification
from Foster’s widow, 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. Lisa reportedly said she could not identify the gun
because it was not silver. The FBI said that ten 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 clearly 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.
Starr also failed to explain why Park Police Chief Robert Langston
falsely told the public at a press conference on Aug. 10, 1993, that the
official death gun had been identified by the Foster family as one of
Foster’s guns. By the time of the press conference, Lisa had not
identified the black official death gun, in part because it was the
wrong color, and Foster’s sister, Sharon Bowman, failed to give a
credible identification of the official death gun. By Aug. 10, 1993,
nobody in the Foster family identified the black official death gun as
one previously belonging to Foster. Indeed, Fiske and Starr failed to
tell the public that largely because of its color, the black official
death gun could not be identified by Foster’s nephew, who was the
surviving family member most familiar with the family’s guns.
Starr’s discussion of the medical evidence also is deceptive. The
official government story says there was no neck wound and that Foster
shot himself in the mouth, leaving a one by one and a quarter inch exit
hole in the back of the head, three inches from the top. Starr dismisses
a report by one of the paramedics that there was a small bullet-like
entrance wound on the right side of Foster’s neck.
But the only medical doctor to view Foster’s body at the park wrote a
two-page report that is internally inconsistent. On the first page it
states that the death shot was “mouth-head,” but on the second page it
states that the death shot was “mouth to neck.” Moreover, the report
appears to have been improperly altered. Underneath the “mouth-head”
language on page one, there appears to be a “whited out” four-letter
word that was replaced with the word “head” slightly to the right of the
concealed word.
Both Fiske and Starr failed to tell the public all the facts about
this medical report. Fiske completely ignored it and Starr quoted from
the apparently altered language, while failing to tell the public about
the apparent alteration, and about the unaltered language mentioning a
neck wound. Starr also failed to explain why the report appears to be
altered and what, if anything, is written underneath the apparent
alteration.
The medical evidence was further distorted because Starr falsely
implied that the Park Police observed the entire autopsy when they did
not do so. Starr reported that several Park Police officers observed the
autopsy, and quoted one of the officers who wrote that after he briefed
the autopsy doctor, the doctor “started the autopsy.” But Starr failed
to tell the public that the next sentence in the officer’s report says,
“Prior to our arrival, the victim’s tongue had been removed as well as
parts of the soft tissue from the soft pallet (sic).” Starr’s omission
is significant given that this is an autopsy of a man who allegedly
fired a gun into his mouth while leaving behind unresolved questions
about a right-side neck wound whose track might have gone through the
tongue and soft palate.
Additionally, Starr failed to tell the public that the autopsy doctor
violated policy by beginning the autopsy before the police arrived, and
that the autopsy doctor refused to tell the police the identity of his
assistant.
Two days after the autopsy, an FBI agent sent a memo to the director
of the FBI stating, “Preliminary results include the finding that a .38
caliber revolver, constructed from two different weapons, was fired into
the victim’s mouth with no exit wound.” Neither Fiske nor Starr
mentioned this memo. Nor did they explain the conditions that would make
it possible for a .38 revolver to be fired in the mouth without making
an exit wound. Also unmentioned is whether the FBI director did anything
to resolve the contradiction between this memo and the official autopsy
report of an exit wound. The memo was released in response to a FOIA
lawsuit.
Starr also omitted important evidence about Foster’s arrival at the
park. Starr mentioned four people who were in the park at a time when
Foster was probably already dead and his gray car should have been in
the park’s parking lot. Starr mentioned that one of these people
reported seeing a brown car, not Foster’s gray car. But Starr failed to
mention that the other three people also reported seeing a brown car,
not Foster’s gray car. Yet, Starr inexplicably concluded that Foster’s
gray car was in the lot at this time.
At this point you might be comparing Starr’s OIC with O.J. Simpson’s
criminal defense team, and you would have good reason. Simpson’s
discredited expert witness, Dr. Henry Lee, was hired by Starr. Starr
said Lee’s examination of Foster’s clothes revealed no evidence that
Foster’s body had been dragged. But Starr failed to tell the public
that, according to the Park Police, they dragged Foster’s body when it
began to slide down the hill during an examination. Starr failed to
mention these Park Police descriptions of the body sliding up and down
the dirt path and failed to reconcile them with Lee’s apparently
erroneous conclusion.
The OIC probably wants the American people to forget about Starr’s
other report. But the FOIA gives private citizens an opportunity to
uncover government corruption and incompetence even when it may not be
popular to do so. The Ninth Circuit now knows that the government’s
Foster reports are so unreliable that had they been produced for a
private entity, payment on the check would have been stopped.
Clearly, the OIC is trying to prevent disclosure of additional
evidence that might further expose government deception. But the
erroneous lower court opinions distorting the FOIA’s privacy exemption
create the possibility of legal action against the OIC by Foster’s
relatives should it release the photos without a court order. The OIC
can protect itself by endorsing those erroneous opinions and forcing the
court to decide. But the Ninth Circuit needs no such protection, can
reject those opinions, and thereby preserve the FOIA’s integrity.
Allan J. Favish is an
attorney specializing in civil litigation. Mr. Favish’s appellate
briefs are available at his
website.
