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.
Byron York, like Kenneth Starr, fails to tell us some important facts ("Vince Foster, in the Park, with the Gun," Oct. 27).
When Lisa Foster made her tentative identification of a gun shown to her in May 1994, she described the gun being shown to her as silver-colored. Her report of the color, omitted by Starr and York, is crucial because the official death gun is black-colored.
Neither Starr nor York explains why she described a supposedly black gun as silver and why such a misperception failed to elicit any apparent comment from those present, including her attorney, a deputy of Robert Fiske and at least two FBI agents.
One possible explanation is that she was not shown the official death gun in May 1994, but was shown a silver gun in order to elicit an identification that could be used in Fiske's report, without mentioning anything about the colors.
Starr and York also tell us of an oven mitt supposedly found in the glove compartment of Foster's car. Yet they fail to tell us that a park-police officer who searched the car testified under oath in July 1994 that there was "nothing out of the ordinary" in the glove compartment. And there is no mention of an oven mitt in the official evidence inventories for the car.
On page 27 of Starr's report, he quotes from a two-page medical report made by Dr. Donald Haut, the only M.D. to examine the body at the park. Starr tells us that Haut's report says that the death shot was "mouth-head."
However, Starr and York fail to tell us two important facts. Page 2 of Haut's report says the death shot was "mouth-neck," directly contradicting the official autopsy report. Moreover, the "mouth-head" phrase is on page one of Haut's report and was obviously altered so as to conceal a four letter word and put "head" over it.
The government's failure to tell us the true facts about this case is matched only by an identical failure by the dominant media. York's article is a prime example.
Allan J. Favish
Weekly Standard, November 10, 1997, pp.8-9.
Byron York responds:
Allan J. Favish suggests the independent counsel's office substituted a phony pistol in place of the "official death gun" so that Fiske and Starr could claim Lisa Foster recognized the gun her husband used to kill himself. For the record, my source in Starr's investigation says that is simply not true. "The gun she was shown," he says, "was the gun recovered from Foster's hand." In addition, Favish's claim that Starr omitted Mrs. Foster's memory of the gun's color is false. On page 80 of the report, Starr says Lisa Foster "recalled what she described as a silver-colored gun." On pages 81-82, Starr writes that Mrs. Foster identified the gun, "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."
Regarding the oven mitt: According to Starr's investigators, it was not listed on the official evidence inventory because it was not taken into evidence. Not everything in the car was; for example, a canvas bag and a pair of moccasins were also in the car but not listed on the evidence report because the park-police officer who entered the items into evidence did not find them significant. Furthermore, when Starr's team showed the picture of the mitt to officer John Rolla, the man who had said that there was "nothing out of the ordinary" in the glove compartment, he remembered the mitt's being there. Another officer confirmed the same thing.
On the "mouth-neck" wound, Favish sent me documents indicating the phantom wound might have been an exit wound, as well as other materials indicating it might have been an entrance wound. According to Starr's investigators, there is an autopsy photo--a clear, professional photograph, not a Polaroid--showing a close-up view of the side of Foster's head, with no exit or entrance wound of any kind in the neck. There is also a clear photo showing Foster's body with a so-called trajectory-rod placed into the actual entry wound in the mouth and protruding out the actual exit wound in the back of the head.
[End of published material.]
Allan J. Favish responds to Byron York:
I stand by that portion of my letter that says:
When Lisa Foster made her tentative identification of a gun shown to her in May 1994, she described the gun being shown to her as silver-colored. Her report of the color, omitted by Starr and York....
York says that my statement is false because, "On page 80 of the report, Starr says Lisa Foster 'recalled what she described as a silver-colored gun.'"
Starr's statement on page 80 is true. Starr cites to page 15 of Mrs. Foster's May 1994 FBI interview in which she describes the gun she recalls packing in Arkansas. (FBI Interview of Lisa Foster, p. 15, reprinted at S. Hrg. 103-889, p. 1647, available at my web site.)
But the omission to which I referred in my letter has to do with Mrs. Foster's description of the gun that was shown to her at that May 1994 interview. This is the important point. At the May 1994 interview, how did she describe the gun shown to her at that interview?
If she was shown the official black-colored Fort Marcy Park gun at that interview, she should not have simultaneously described the gun shown to her at that interview as silver-colored. Yet, at that interview, she did describe the gun shown to her at that interview as silver-colored.
This is clear from other portions of that interview, ignored by Starr and York, wherein Mrs. Foster,
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 ... 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.
(FBI Interview of Lisa Foster, pp. 14, 16-17, reprinted at S. Hrg. 103-889, pp. 1646, 1648-1649, available at my web site.)
Once again, at her May 1994 interview, Mrs. Foster described the gun shown to her at that interview, as silver-colored. Starr and York omitted this crucial point. Instead, Starr and York cite another portion of the interview wherein Mrs. Foster is merely recalling that the gun she brought to Washington was one she recalls as being silver-colored.
It is one thing for Mrs. Foster to recall during her May 1994 interview that the family gun was silver, when it was really black. Such an error can be explained by a faulty memory (although extremely unlikely). But it is quite another thing for Mrs. Foster to say during her May 1994 interview that a black gun being shown to her is silver. Such an error cannot be explained by a faulty memory. It only can be explained by Mrs. Foster having an inability to tell black from silver or her lying about her perception. There is no evidence in the public record that Mrs. Foster is unable to tell black from silver or that she lied about her perception.
Starr and York fail to explain why they omitted the fact that at her May 1994 interview, Mrs. Foster described the gun shown to her at that interview, as silver-colored. They also fail to explain why she did so. The burden is upon them to do so.
The continued failure of the government and the dominant media to provide such explanations only serves to strengthen my hypothesis: Mrs. Foster correctly perceived the color of the gun she was shown at the May 1994 interview. She perceived it as silver-colored because it was silver-colored. And it was not the official black-colored Fort Marcy Park gun.
York also says: "On pages 81-82, Starr writes that Mrs. Foster identified the gun, '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.'"
For this statement, Starr cites a November 1995 FBI interview of Mrs. Foster, at which she probably was shown the official black Fort Marcy Park gun. This does nothing to explain what happened at the May 1994 interview.
Regarding the oven mitt: Putting aside whether it is believable that a police officer would see an oven mitt in a car's glove compartment and not only fail to mention it while testifying about the contents of that glove compartment, but testify that there was "nothing out of the ordinary" in the glove compartment--putting all that aside--didn't Starr and York have an obligation to tell the public about Rolla's July 1994 testimony? Shouldn't the public be given the opportunity to decide if a credible story is being told here?
Regarding Dr. Haut's report and the "mouth-neck" wound: York mentions a clear photo of the side of Foster's head and another photo of Foster's body showing a trajectory-rod. But York fails to mention any photo of the back of Foster's neck. Given Dr. Haut's description of a "mouth-neck" wound, the back of Foster's neck is a possible spot for a wound.
Also, my description of Dr. Haut's report is uncontested by York. Yet, Starr and York fail to provide any explanation about why they failed to give the public the details about Dr. Haut's report that I put in my letter.
In fact, Starr tried to hide page 2 of Dr. Haut's report from the public when he unsuccessfully fought to keep that page and many other damning pieces of evidence (including the gun color evidence) from being included as an appendix to his report. That appendix was prepared by John Clarke, an attorney for Foster grand jury witness Patrick Knowlton, and was ordered to be included with Starr's report by the 3 federal appellate judges who appointed Starr.
Neither York nor Starr told the public about the Clarke-Knowlton appendix.