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.
[Updated October 18, 1997, to include Ken Starr's Report]
Former Independent Counsel Robert Fiske wrote in his report on the death of Vincent Foster that Mr. Foster's widow, Lisa, said that the official death gun "looked similar to one that she had seen in their home" although official government documents show she had not made any valid identification of the official death gun. These documents suggest that persons conducting the Fiske investigation deliberately tried to manufacture a misleading gun identification from Mrs. Foster in order to make it appear that Mr. Foster owned the official death gun prior to the day he died.
More specifically, the documents show that prior to the death, Mrs. Foster knew Mr. Foster had a silver-colored handgun. Yet the official death gun was black and several days after the death Mrs. Foster could not identify the official death gun from a photo because the gun depicted was not silver-colored. However, ten months later she was shown a gun she said "may be the silver gun" that was Mr. Foster's. Mr. Fiske used this statement in his report, without mentioning any color, to make it appear she gave a valid identification of the official black death gun.
Mr. Fiske's use of Mrs. Foster's statement was clearly deceptive. If she was shown a silver-colored gun at the later interview, then obviously she failed to give a valid identification of the official black death gun. Likewise, if she was shown the official black death gun at this later interview and identified it as being silver-colored, then equally obviously, she failed to give a valid identification of the official black death gun. No matter what color gun Mrs. Foster was shown at this later interview, given her response, it was clearly deceptive for Mr. Fiske to use her response as if it were a valid identification of the official black death gun.
According to Kenneth Starr, Mrs. Foster was unable to tell black from silver and she described a black gun as silver in front of her attorney, Fiske's deputy and at least two FBI agents, who all failed to do anything about her mistake or note it in the record.
Mr. Starr completely failed to explain or justify Mr. Fiske's use of Mrs. Foster's invalid gun identification.
Mr. Starr completely failed to prove that Mrs. Foster was shown the official black death gun ten months after the death. His failure to provide a credible and innocent explanation for the documented facts provides additional evidence that persons conducting the Fiske investigation deliberately tried to manufacture a misleading gun identification from Mrs. Foster by showing her a silver gun in May, 1994, while falsely telling her it was the official death gun.
A recently filed federal lawsuit alleges a government conspiracy to obstruct justice in the investigation of former White House counsel Vincent Foster's death. There is substantial evidence supporting at least one of the suit's allegations.
Although former Independent Counsel Robert Fiske concluded in June,1994 that Mr. Foster committed suicide in Virginia's Fort Marcy Park on July 20, 1993, the investigation was reopened by Mr. Fiske's successor, Kenneth Starr.
Charges of a cover-up in the Foster case rose to a new level on November 12, 1996, when a federal judge in Washington, D.C., unsealed a lawsuit filed by a witness in the case named Patrick Knowlton, who was in Fort Marcy Park the afternoon of Mr. Foster's death. His lawsuit alleges obstruction of justice by FBI agents detailed to the Office of the Independent Counsel under both Mr. Fiske and Mr. Starr.
The lawsuit also alleges that the Fiske Report makes false and misleading statements in furtherance of a conspiracy to obstruct justice in the case, including Fiske's statement about Mrs. Foster's alleged identification of Mr. Foster's alleged suicide weapon. (Complaint in Patrick Knowlton v. United States, Civil Action No. 96-2467 (NHJ), filed in U.S. District Court in Washington, D.C., at par. 24.)
The official public evidentiary record in the Foster case provides substantial evidence about the gun identification issue that will aid Mr. Knowlton. The documents involving the gun, taken alone, do not conclusively prove murder or that Mr. Foster died in a place other than Fort Marcy Park. But they show that the gun found in Mr. Foster's hand was black or dark-colored and that Mrs. Foster made an uncertain identification of a gun that was based either on her being shown a silver-colored gun, not the official black death gun, or on her being shown the official black death gun and her perceiving it as silver-colored. In either case, her identification was invalid and completely improper for use by Mr. Fiske to support his conclusion.
The documents and Mr. Knowlton's lawsuit raise questions about why it appears Mrs. Foster was shown a silver-colored gun if the official death gun was black; and if she was shown the official black death gun, why she believed it was silver-colored; and why, in any case, did Mr. Fiske use her uncertain identification as if it were valid?
These documents, ignored by the dominant media, became public as a result of hearings in 1994 by the Committee on Banking, Housing, and Urban Affairs of the U.S. Senate, the so-called "Whitewater Hearings." (Hearings Relating to Madison Guaranty S&L and the Whitewater Development Corporation--Washington, DC Phase, S. Hrg. 103-889.) Part of these hearings consisted of an investigation of the Foster death. The first two volumes of those hearings, as published by the U.S. Government Printing Office, contain official copies of documents created by the U.S. Park Police and the FBI in the course of their Foster investigation.
The documents show that no Park Police officer in the official public record who claims to have seen the gun at the park describes it as being anything other than black or dark-colored and no Park Police officer publicly describes it as being silver-colored. On July 21, 1993, the day after Mr. Foster's death, U.S. Park Police Investigator John Rolla wrote in his report that the gun found in Mr. Foster's hand was "dark-colored." (Supplemental Criminal Incident Record, S. Hrg. 103-889, Vol. 1, p. 150.) He said the same thing on July 29, 1994, while testifying under oath at the Senate Banking Committee's Whitewater hearings. (Testimony of John Rolla, S. Hrg. 103-889, Vol. 1, p.79.) In his deposition before the Committee on July 21, 1994, he testified that he told Mrs. Foster the gun found with her husband was "a black-colored revolver, .38 revolver." (Deposition of John Rolla, S. Hrg. 103-889, Vol. 1, p. 449.) Park Police Officer Peter Simonello, also a death-scene witness, wrote in his report on July 26, 1993, that Mr. Foster had his hand on a "black revolver." (Mobile Crime Lab Report Supplement, S. Hrg. 103-889, Vol. 2, p. 2160.)
Black and white photos of the official death gun taken by the Park Police show it to be totally black or dark. (S. Hrg. 103-889, Vol. 2, pp. 2407-2412). A color photo allegedly showing the official death gun in Mr. Foster's hand, broadcast by ABC-TV News in March of 1994 and printed in Time's March 18, 1996, issue, shows a gun all black or very dark in color--no silver.
Yet, when Mrs. Foster was interviewed nine days after the death by the Park Police, not the FBI, "[s]he was presented with a photograph of the weapon found with Mr. Foster's body, but was unable to identify it," according to Park Police Detective Peter Markland's August 5, 1993, written report. (Supplemental Criminal Incident Record, S. Hrg. 103-889, vol. 2, p. 2153.) The Park Police's handwritten interview notes say: "Not the gun she thought it must be. Silver six gun, large barrel." (S. Hrg. 103-889, vol. 2, p. 2227.)
At this point, apparently Mrs. Foster knew her husband had a silver-colored handgun prior to his death, but not a black or dark-colored handgun and since she was apparently shown a photograph of a black or dark-colored gun, she was "unable to identify" the gun in the photo because it was not silver-colored.
In May of 1994, FBI agents working for Mr. Fiske interviewed Mrs. Foster, showed her an actual gun, not a photo, and asked her if she could identify the gun. Stating that she helped Mr. Foster pack a silver-colored gun for the move to Washington, according to the FBI's notes of the interview, she said that the gun shown to her at the interview "may" be that silver-colored gun:
LISA FOSTER then examined a revolver which had been brought to the interview by the interviewing agents. FOSTER examined the revolver, which had also been found at Fort Marcy Park on July 20, 1993, and stated that she believed it may be a gun which she formally saw in her residence in Little Rock, Arkansas.
. . . .
LISA FOSTER believes that she may have seen the handgun which she examined previously during the interview at her residence in Washington. LISA FOSTER recalls that as she was packing her belongings in Little Rock in preparation for coming to Washington, D.C., she found a handgun inside a travel trunk which had been packed by FOSTER prior to his departure for Washington. Specifically, as LISA FOSTER was packing in Little Rock, she came across a silver-colored gun, which she then packed in with her other property.
. . . .
LISA FOSTER believes that the gun found at Fort Marcy Park may be the silver gun which she brought up with her other belongings when she permanently moved to Washington.
Notice the contrast between the two attempts to get Mrs. Foster to identify whatever gun was being shown to her. Nine days after the death Mrs. Foster was unable to identify "the weapon found with Mr. Foster's body"--presumably the black or dark official death gun--from a photo shown to her by the Park Police because it didn't show the silver-colored gun she expected to see. Yet when Mr. Fiske's FBI agents showed her a gun ten months later and apparently told her it was the gun found with Mr. Foster in the park, she gave an uncertain identification of the gun shown to her as one that "may be the silver gun which she brought up" to Washington--an identification that only makes sense if she was, in fact, shown a silver-colored gun at this interview.
It is important to recognize that Mrs. Foster's mention of a gun that "may" be Mr. Foster's silver gun necessarily refers to the gun she examined at the May 1994 interview, not some other gun. According to the notes of that interview, she was shown a gun that was "brought to the interview by the interviewing agents" and "which had also been found at Fort Marcy Park on July 20, 1993." It was this gun that was "examined" by Mrs. Foster. There is no evidence that she was asked to view more than one gun at that interview. Therefore, when the FBI reports that Mrs. Foster "believes that the gun found at Fort Marcy Park may be the silver gun which she brought up" to Washington, the FBI's reference to "the gun found at Fort Marcy Park" describing Mrs. Foster's identification, coupled with the FBI's description of the gun it showed her as the gun "found at Fort Marcy Park," necessarily means that she was refering to the gun shown to her during the interview as being silver-colored.
Mr. Fiske ignored most of this in his June 1994 report, writing only that "Lisa Foster stated that the gun looked similar to one that she had seen in their home in Arkansas and that she had brought to Washington." (Report of the Independent Counsel In Re Vincent W. Foster, Jr. (Fiske Report, p. 38), S. Hrg. 103-889, Vol. 1, p. 213.) However, Mr. Fiske failed to mention his report was based on Mrs. Foster being shown a gun she believed was silver-colored--a description incompatible with the official black death gun depicted in the official photos, testimony and reports. Mr. Fiske also failed to mention that when she was shown a photo nine days after the death by the Park Police, presumably of the official black death gun, she could not identify the gun in the photo because it was not silver-colored. Mr. Fiske also failed to mention that in May 1994, Mrs. Foster either was shown a gun whose color was different from that of the official black death gun, or was shown the official black death gun and misperceived its color so as to render her identification invalid.
Unlike the Fiske Report, which does not mention a gun color, the Senate Banking Committee's January 1995 report on the Foster death expressly mentions a single gun color--silver. The Committee's report implies the official death gun is silver-colored and that Mrs. Foster identified a silver-colored gun. Inexplicably, however, the Committee failed to reconcile its report with the official documents, instead writing:
Mrs. Foster examined the revolver recovered from Mr. Foster's hand and stated that it may have been a gun which she had seen in her Little Rock residence.[fn.]
[fn.] Mrs. Foster had seen a silver colored handgun inside a travel trunk when she was packing for the family's move to Washington. . . . While unpacking the gun in Washington, Mrs. Foster saw the gun and commented on it. . . .
She believed the gun found in Fort Marcy Park may be the gun which she brought to Washington with the rest of the family's belongings.
(Madison Guaranty S&L and the Whitewater Development Corporation--Washington, DC Phase, 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, Vol. 1, p. 30.)
Thus, the Senate report leaves the reader with the impression that the official death gun was silver-colored and that Mrs. Foster made an uncertain identification of it as being Mr. Foster's silver-colored gun. The Senate report failed to mention that the official death gun is black as depicted in the Park Police photographs, the color photograph broadcast by ABC-TV, and in official reports and testimony by Park Police personnel. The Senate report simply rubber-stamped the Fiske Report and continued the deception.
While it is possible that the FBI showed Mrs. Foster the official black death gun ten months after the death and she misperceived it as silver-colored, this explanation is nonsensical.
First, there is no evidence Mrs. Foster is unable to tell black from silver. In fact, there is evidence that her ability to discriminate between different colors was sophisticated. In her FBI interview she described the color of the family's Honda as "taupe or grayish" and as being "a light color." (FBI FD-302 Report of Interview with Elizabeth Braden Foster, S. Hrg. 103-889, Vol. 2, p. 1642.)
Second, according to the FBI's notes, those attending the interview included Mrs. Foster's attorney James Hamilton, Mr. Fiske's deputy Roderick Lankler and at least two FBI agents. (FBI FD-302 Report of Interview with Elizabeth Braden Foster, S. Hrg. 103-889, Vol. 2, p. 1633.) If she did misperceive the color, it is virtually certain someone would have called this obvious error to her attention or noted it in the record. The publicly available documents do not reveal any such misperception by Mrs. Foster.
Moreover, any identification of a black gun as silver-colored by Mrs. Foster should not have been used by Mr. Fiske as if it were a valid identification.
When interviewed by the author on February 5, 1997, Park Police officers stood by their official statements that the official death gun was black. Mr. Rolla said, "The gun was black." When asked to explain why the FBI reported that Mrs. Foster believed the gun shown to her by the FBI was silver-colored, he said "ask the FBI ... ask Fiske ... ask Lisa." Mr. Simonello said, "I took the gun out of his [Foster's] hand" and "the gun looked black." When asked if the gun could be described as gray or silver, he said, "no." Asked to explain Mrs. Foster's reported description of the gun shown to her by the FBI, he said, "I don't understand that myself."
Mr. Simonello said that the photo broadcast by ABC-TV News and printed in Time magazine is the death-scene gun. He said it was one of the Polaroid photos that were taken.
Mr. Simonello said that until the author showed him the FBI's typewritten notes of the interview with Mrs. Foster he was unaware of Mrs. Foster's belief that the gun shown to her by the FBI in May 1994 was silver-colored.
The public record does not support speculation that Mrs. Foster misperceived a black or dark gun as silver-colored. Instead, the weight of the evidence makes it much more likely that the official death gun was black and Mrs. Foster could not identify a photo of the official death gun because she did not recognize the gun as Mr. Foster's silver-colored gun. The weight of the evidence also makes it much more likely that she did not identify any gun as being Mr. Foster's until she was shown a silver-colored gun by Mr. Fiske's FBI agents; and it was this identification Mr. Fiske used in his report to make it appear she had identified the official black death gun.
Whether somebody deliberately mislead Mrs. Foster into identifying a gun that was not the official death gun and then used her identification to make it appear she had identified the official death gun, is a valid question that Mr. Starr should answer. Did Mr. Fiske, his staff and/or his FBI agents trick Mrs. Foster and write a deceptive report? Is this the "smoking gun" in an alleged cover-up in the Foster death investigation?
Reasonable speculation is that somebody in the FBI or Mr. Fiske's office deliberately tricked Mrs. Foster into identifying a gun as possibly being the death gun so that Mr. Fiske could have some language in his report that linked the official death gun to the Foster family prior to the day Mr. Foster died. This is because a finding of suicide is generally more plausible in the case of a gun owner when the gun found in the hand of the deceased was owned by the deceased. A gun found in the hand of a deceased gun owner that has no previous link with the deceased raises suspicions of staged suicide and murder as opposed to real suicide.
Given Mrs. Foster's reaction to the photo of the black gun nine days after the death, Mr. Fiske easily could have known that to get anything close to an identification of a weapon from Mrs. Foster ten months later, she would have to be shown a silver-colored gun. The evidence suggests this was done and Mr. Fiske wrote a description of Mrs. Foster's "identification" that omitted any evidence of the trick apparently played on her.
This deception regarding Mrs. Foster's alleged identification of the official death gun is supported further by the FBI's notes of its interview with Mr. Foster's nephew, Lee Foster Bowman. According to the FBI's notes, Mr. Bowman went hunting over ten times with his grandfather and was able to describe his grandfather's gun collection--which was later inherited by Mr. Foster--in significant detail. According to those notes:
BOWMAN said he knew the difference between a pistol and a revolver.
. . . .
BOWMAN was shown the .38 caliber colt revolver believed to have been used by VINCENT FOSTER, JR. on July 20, 1993 to kill himself. BOWMAN was asked if he recognized this weapon. BOWMAN said, "The gun does not ring a bell particularly". BOWMAN said the ".38 caliber" nature of the weapon was familiar, but that he didn't remember the black handle and the dark color of the metal. He indicated that he was familiar with the cylinder and barrel portion of this size or caliber of a weapon except for the color of the metal.
Mr. Fiske failed to mention Mr. Bowman's statements about the gun color in his report and completed his report before Mr. Bowman's FBI interview had been transcribed from handwritten notes to typewritten notes. The Bowman interview occurred June 28, 1994. The Fiske Report is dated June 30, 1994. (Report of the Independent Counsel In Re Vincent W. Foster, Jr., S. Hrg. 103-889, Vol. 1, p. 181.) The typewritten version of the FBI's Bowman interview notes was transcribed July 5, 1994.
If Mr. Starr is going to issue an honest and thorough report about the Foster death, he will have to answer several important questions.
First, if Mrs. Foster was shown a silver-colored gun ten months after the death under conditions implying to her that it was the official death gun, when the official death gun clearly is not silver-colored, why was this done?
Second, if Mrs. Foster was shown the official black death gun ten months after the death and misidentified it as possibly being Mr. Foster's silver-colored gun, why did Mr. Fiske present her erroneous identification as a valid identification in his final report?
Third, no matter what color gun was shown to Mrs. Foster ten months after the death, given that she identified it as silver-colored and the official death gun was black, why did Mr. Fiske present her clearly invalid identification as a valid identification in his final report?
Fourth, why would persons conducting the Fiske investigation engage in such deception and obstruction of justice if the Foster death was merely a suicide in Fort Marcy Park and not a murder or suicide elsewhere?
Mr. Starr also should explain why the Senate Banking Committee allowed Mr. Fiske to get away with his deception and why the Committee compounded the deception by clearly implying that the official death gun was silver-colored and was validly identified by Mrs. Foster when the official death gun was black and Mrs. Foster never gave a valid identification of it, no matter what color gun was shown to her by the FBI in May 1994.
Many in the dominant media may proclaim the lack of a "smoking gun" in the Foster death case. Of course, they would be correct regarding their own coverage of the case. But is that because the "smoking gun" doesn't exist or simply because they fail to write about it?
Now that Mr. Starr's report was made public October 10, 1997, by the Special Division of the United States Court of Appeals for the District of Columbia Circuit, many people on the Internet, if not in the dominant media, are looking to see how he explains this smoking gun.
Starr confirms that the official death gun was black. He says "the descriptions provided by the first two persons to observe the gun, as well as of numerous others, are consistent with the gun retrieved from the scene and depicted in the on-the-scene Polaroids." Starr says that these two persons "saw black or dark revolver in hand" and "saw black gun in hand." (Starr Report, at 79 n. 229 and accompanying text.)
Starr notes that nine days after the death, "Mrs. Foster was shown a photograph of the gun retrieved from the scene and, according to the Park Police interview report, was unable to identify it from the photograph." (Starr Report, at 81.) However, Starr fails to mention that one of the reasons given by Mrs. Foster for her inability to identify the gun in the photo was that the gun in the photo was not silver.
Starr says that on May 9, 1994, Mrs. Foster "was shown the actual gun that was recovered," i.e., the official black death gun. (Starr Report, at 81.) However, Starr fails to mention that if this is true, then at that interview she called a black gun "silver."
Starr fails to explain why Mrs. Foster previously described a black gun as silver, except to say that at the November 1995 interview, Mrs. Foster "said she seemed to remember the front of the gun looking lighter in color when she saw it during the move to Washington." (Starr Report, at 81-82.)
Starr fails to mention that if it is true that Mrs. Foster remembered "the front" of a black gun as being so light in color she described the gun as silver, then this could explain why she did not recognize the black gun when shown a photograph of it on July 29, 1993.
But this CANNOT explain why she would have described the black gun as silver when the actual black gun was supposedly shown to her on May 9, 1994. Starr fails to explain why Mrs. Foster supposedly called a black gun "silver" on that date.
More significantly, Starr fails to mention that when Mrs. Foster was supposedly shown the black death gun on May 9, 1994, this was done in her attorney's office in front of at least two FBI agents, her attorney James Hamilton, and Fiske's deputy Roderick Lankler. Starr fails to explain why any of these (at least) four professional investigators failed to say anything about the fact that Mrs. Foster called a black gun "silver" in their presence. Did the black gun also look silver to them?
Starr fails to give any indication that any of the people in that room with Mrs. Foster on May 9, 1994, were interviewed or examined under oath about that episode.
Starr fails to explain how the "front" of the black death gun could have looked "lighter in color" to Mrs. Foster--so light that she called the gun silver.
Starr fails to explain why the same black gun that supposedly looked "silver" to Mrs. Foster in May of 1994, looks darker in color to her in November of 1995.
Starr fails to produce the documentation related to the November 1995 interview and fails to mention who was present.
Starr fails to explain why Fiske used Mrs. Foster's May 9, 1994, description of a black gun as being silver as if it were a valid identification of a black gun.
Starr fails to explain why the black gun that supposedly "seemed" to look "lighter in color" to Mrs. Foster prior to July 29, 1993, looked darker in color to her on July 29, 1993, when she saw the gun in a photograph--so much darker that she said it was not the "silver" gun she thought Vince owned.
Starr fails to explain why Mrs. Foster qualified her statement by saying she "seemed" to remember a lighter color for the front of the gun, as opposed to an unqualifed recollection of the gun's color.
Starr's failure to explain these numerous issues raises the question of whether his report is deliberately false when it says that on May 9, 1994, Mrs. Foster "was shown the actual gun that was recovered," i.e., the official black death gun. (Starr Report, at 81.) Even Fiske did not make such an explicit claim. Was Mrs. Foster shown the official black death gun on May 9, 1994? Or was she shown a silver gun (perhaps the real silver gun she brought from Arkansas) and falsely told that it was the official death gun, in order to get some sort of a gun identification from her? Is Starr telling the truth on this point?
If Starr is going to defend his position that Mrs. Foster was shown the official black death gun on May 9, 1994, he must explain all these issues, yet, he failed to do so.
One way to explain all these issues is to conclude that Mrs. Foster was shown a silver gun on May 9, 1994, and there never was anything wrong with her ability to tell black from silver.**
The two professional reporters who have written the most about the Foster case are Christopher Ruddy of Newsmax.com and Ambrose-Evans Pritchard of the London Sunday Telegraph. Most of their articles can be obtained from their papers' respective web sites.
The evidentiary area explained in this article was the subject of discussion between Mr. Favish and Blood Sport author James Stewart when Stewart was a guest on Ray Briem's talk radio show on Glendale, California's KIEV 870-AM. As shown in the transcript of that conversation, Mr. Stewart was ignorant about this evidentiary area and failed to deal with it properly.
Article plus evidence: Will Starr Find a Smoking Gun in the Vincent Foster Case? (1.5 MB)