Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation. A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.
The official record contains unresolved contradictory information about whether Foster had a wound in the back of his head or somewhere on his neck, or both. The only medical doctor to examine Foster’s body at Fort Marcy Park, Dr. Donald Haut, wrote a two-page report, signed July 20, 1993, the day of death, that is internally contradictory. Page one of Haut’s report said that the death shot was "mouth-head;" but page two of Haut’s report said that the death shot was "mouth to neck."
The Haut Report has not been reproduced in any published government report, but it is available from the National Archives, and it was quoted in the Senate Banking Committee’s January 1995 report on the Foster investigation. The Senate Report said: "In his report, Dr. Haut wrote that the cause of death was a ‘perforating gunshot wound mouth-head’ ..." But the Senate Report also said:
In the narrative of his report, Dr. Haut wrote the following:
JULY 20, 1993 After anonymous call was received at 18:04 hours US Park Police officers found 48 yrs Caucasian male with self-inflicted gunshot wound mouth to neck on a foot path in Marcy Park [sic]. His car was parked in the parking lot but no note was found. MEDICAL HISTORY Unknown.
Therefore, inexplicably, the Senate Report quoted from both pages of the Haut Report, but failed to note that the quoted language is internally contradictory, i.e., "mouth-head" and "mouth to neck."
A "mouth to neck" description is significant because it contradicts the official autopsy conclusion of "mouth to head" and the conclusions of Fiske and Starr. As noted by Starr, the autopsy report "indicates ‘backward’ and ‘upward’ as the direction of the bullet through the head" and the doctor who performed the autopsy said the exit wound was "three inches from the top of the head." Starr said the "autopsy report and the reports of the pathologists retained by the OIC and Mr. Fiske’s office demonstrate that the cause of death was a gunshot wound through the back of Foster’s mouth and out the back of his head." Thus, officially, there was no "mouth to neck" shot.
Furthermore, common sense indicates that the difference between a mouth to head shot and a mouth to neck shot is significant. A typical gun-in-the-mouth suicide will result in a mouth to head shot—entrance wound in the roof of the mouth and exit wound in the back or top of the head—because this insures sufficient blood loss and brain destruction to induce death. A potential gun-in-the-mouth suicide victim does not want to make the exit wound in the back of the neck because that increases the chances of survival, most likely as a quadriplegic.
There is one other important fact about the Haut Report. It appears to have been improperly altered. The "mouth-head" language on page one apparently was altered so as to almost completely conceal what appears to be a four-letter word that was replaced with the word "head" slightly to the right of the concealed word. Is it possible that such a concealed word is "neck," as appears on page two of the Haut Report? This raises significant questions because it is generally known that it is improper to make an alteration to a medical record that completely obscures words. Proper alteration of a medical record is done by lining out any words that need to be changed so that any changed words can still be recognized and then initialing and dating the change. If the Haut Report was improperly altered, who did it, and why? Was the word "neck" on page two left unaltered because the person who may have altered page one failed to realize that the Haut Report is on what appears to be a two-sided, single-sheet form and the person was unaware of the second side?
Unfortunately, Fiske and Starr don’t do anything about this apparent alteration. Fiske completely ignores the Haut Report. Starr quotes from the apparently altered language on page one, well aware that there is a second page to the report that mentions "neck" instead of "head," as shown by the OIC document numbers Starr mentions.
Therefore, in telling the public that the Haut Report said the death shot was "mouth-head," Starr omitted other important information about the Haut Report. Starr failed to tell the public that page two of the Haut Report said the death shot was "mouth to neck," suggesting an exit wound in the back of the neck and directly contradicting the official autopsy report. Additionally, Starr failed to tell the public that the "mouth-head" phrase he quoted from page one, apparently was altered so as to almost completely conceal what appears to be a four-letter word that was replaced with the word "head" just to the right of the concealed word.
Thus, Starr left vital questions about the Haut Report unanswered that easily could have been answered. Starr failed to explain why the Haut Report appears to be altered, and if it was altered, he failed to explain what the original document says underneath the alteration.
If an OIC attorney presented an improperly altered portion of the Haut Report to the Special Division of the D.C. Court of Appeals as if there was no alteration, such an attorney may have violated the District of Columbia Rules of Professional Conduct, Rule 3.3(a)(1), (4) & (d). These rules prohibit lawyers from making false statements of material fact to a tribunal, offering evidence that the lawyer knows to be false, and failing to reveal to a tribunal that a fraud has been perpetrated upon the tribunal. Moreover, 18 U.S.C. § 1512(b) provides criminal penalties for one who "corruptly persuades another person ... with intent to ... cause or induce any person to ... alter ... an object with intent to impair the object’s integrity or availability for use in an official proceeding." If the Haut Report was improperly altered, this code section may have been violated.
Additionally, Starr failed to say what Dr. Haut says about his report. Significantly, neither Starr nor Haut have said that Haut’s report of a neck wound was erroneous. Most importantly, it would appear that a second autopsy is required when the official autopsy significantly conflicts with the initial report by the first doctor to examine the body and that initial report appears to be improperly altered. But Starr failed to explain why a second autopsy was unnecessary.
1. Report of the Committee on Banking, Housing, and Urban Affairs United States Senate on the Inquiry into the U.S. Park Police Investigation of the Death of White House Deputy Counsel Vincent W. Foster, Jr., S. Rept. 103-433, at 18 (1996).
2. Id. at 18 n.57 (emphasis added).
3. Starr Report at 111.
4. A leading medical textbook states:
When you make a mistake on a chart, correct it promptly. Never erase, cover, completely scratch out, or otherwise obscure an erroneous entry because this may imply a coverup . . . Erasures or the use of correction fluid or heavy black ink to obliterate an error are red flags.
. . . .
When you make a mistake documenting on the medical record, correct it by drawing a single line through it and writing the words "mistaken entry" above or beside it. Follow these words with your initials and the date. If appropriate, briefly explain the necessity for the correction.
Make sure that the mistaken entry is still readable. This indicates that you're only trying to correct a mistake, not cover it up.
Mastering Documentation at 304-305 (Springhouse Corp., 2d ed. 1999).
5. Starr’s Report said Dr. Haut completed a:
"Report of Investigation by Medical Examiner" after the incident; the report is stamped with the date July 30, 1993. OIC Doc. No. DC-106A-1 to DC-106A-2. The report states that the cause of death was " perforating gunshot wound mouth-head" and the means of death was "38 caliber handgun."
Starr Report at 27 n.57.