-Caveat Lector-
The other Starr Report
By Allan J. Favish
� 1999 WorldNetDaily.com
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.
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