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.
Comment by AJF: The autopsy doctor reported an entrance wound in the back of the throat, but also reported an exit wound in the middle-back of the head that does not line-up with an entrance wound in the back of the throat. Despite the autopsy report's location of the entrance wound, the Fiske and Starr reports placed the entrance wound in the roof of the mouth, apparently so it would line-up with the autopsy report's exit wound. This proves three things: the truth about the wounds is uncertain, the autopsy report and the Fiske and Starr reports have no credibility, and since it should have been very easy to accurately report the wound information, the government's failure to do so strongly indicates lying and obstruction of justice.
Further analysis of the Foster death by Mr. Sprunt, including his February 1999 version of his full analysis of Ken Starr's report on the Foster death, is also on this Website.
Last Revised 3/28/99
Autopsy Report: The First Entrance Wound Was In The "Posterior Oropharynx"
Recent work indicates that the Foster autopsy report may well be inconsistent on its face. Rob Bracci's analysis of the autopsy report in late 1998, begun after Bracci, a 28 year-old from Michigan, obtained a video of a "Foster View-graph" presentation of mine that had been taped by a Los Angeles area forum, formally questioned the internal consistency of the wound track information provided by the autopsy report. The autopsy doctor's report stated that the first entrance wound made by the bullet was in Foster's
posterior oropharynx at a point 7.5" from the top of he head; there is also a defect in the tissues of the soft palate and some of these fragments contain probably powder debris. The wound track in the head continues backward and upward with an entrance wound just left of the foramen magnum with tissue damage to the brain stem and left cerebral hemisphere with an irregular exit scalp wound and skull defect near the midline in the occipital region.
The "Body Diagram - Head" in the autopsy report depicts a 1" by 1.25" section of skull in the upper rear center of Foster's head at a point 3" below the crown of the head that allegedly was removed by the bullet fired from the Army Colt .38 revolver that we are told Foster placed in his mouth at Fort Marcy Park.
As can be seen from that diagram, all of the portion of the skull allegedly removed by the exit of the bullet lies above a line joining the tops of Foster's ears. No one, layman or medical professional, would describe this trauma as a neck wound.
According to medical dictionaries and anatomical charts, the upper limit of the oropharynx is defined by the level of the soft palate ("The oropharynx reaches from the soft palate to the upper border of the epiglottis," says one medical dictionary). The uvula is the name of the lowermost component of the soft palate. This is the soft tissue that you see in the mirror, hanging down into your throat from above and behind the tongue.
In layman's terms, the "posterior oropharynx" is the back of the throat, behind and somewhat below the top surface of the tongue, visible in your mirror starting just below the lower tip of your uvula and extending downward. The oropharynx is the space bounded anteriorly and superiorly by the uvula/soft palate and "is level with the second cervical vertebra body and upper part of the third," according to another medical reference work.
The oropharynx is thus slightly below and forward of the atlas, the uppermost cervical vertebra, which is just below the base of the skull and connected with it. The nasopharynx adjoins and is immediately above the oropharynx according to medical dictionaries and anatomical charts ("The soft palate separates the nasopharynx from the oropharynx. . .").
Not Just A Matter Of Medical Terminology
The autopsy doctor's multiple use of the term "posterior oropharynx" in his report is not the only evidence therein that this is the location of an entrance wound. The doctor's multiple use of a distance measurement also points to the posterior oropharynx.
Analysis of actual human skulls shows that the reported 7.5" distance from the top of Foster's head to the entrance wound in the posterior oropharynx referred to in the autopsy report does indeed equal the vertical distance between the top of the head to roughly the middle of the oropharynx on a head the size of Foster's. Therefore, this 7.5" measurement tends to confirm that the autopsy doctor intended to report that the first entrance wound indeed was in the posterior oropharynx.
The autopsy doctor also refers to a "defect [not an "entrance wound"] in the tissues of the soft palate," indicating that the soft palate had been damaged by the passage of the bullet ("some of these fragments [of the soft palate] contain probable powder debris," the autopsy doctor wrote). Did this language mean that the soft palate was actually perforated by the bullet or could the "defect" [damage] have another source (such as fragmentation of, or injury to, the soft palate from gun gases expelled from the barrel)? For whatever reason, the autopsy doctor did not indicate an "entrance wound" in, or a perforation of, the soft palate.
Close Enough For Government Work?
Those who examined this aspect of the autopsy report prior to Rob Bracci missed or misunderstood the potential significance of the doctor's location of the first entrance wound at the posterior oropharynx (as opposed to in the "posterior nasopharynx" - the back wall of the throat just above the oropharynx).
They placed more weight on the reported defect in the soft palate than on the reported entrance wound in the posterior oropharynx and similar language in the report of the four doctors who reviewed the autopsy that indicated the bullet's rearward trajectory was upward and not (as would be the case for an entrance wound in the posterior oropharynx) horizontal or slightly downward.
Thus, they assumed that the path of the bullet when it left the barrel could actually have been "backward and upward" [emphasis added], as also stated by the autopsy doctor, rather than the "backward" or "backward and downward" direction implied by the autopsy doctor's location of the first "entrance wound" in the posterior oropharynx, at least if one is permitted to assume that when the autopsy doctor wrote "oropharynx" he really meant "oropharynx" and not "nasopharynx."
[Note that the autopsy doctor did not refer to the first entrance wound as being in the posterior nasopharynx, which would have been consistent with the bullet having first struck the "soft palate" somewhere at or above the tip of the uvula.]
The autopsy report became public with the release of the Fiske report on the Foster death on June 30, 1994.
Change's Made By Fiske's Panel Of Reviewing Doctors
Early analysts of the autopsy report also turned to the included language from the report of the four doctors who reviewed medical aspects of the Foster death on behalf of Regulatory Independent Counsel Fiske. According to these doctors:
The bullet perforated the soft palate [sic], entered the cranial cavity directly to the left of the foramen magnum, contused the left side of the brainstem, grazed the medial aspect of the left cerebral hemisphere and exited through the occipital skull and scalp.
This language is consistent with that of the autopsy report except in two potentially significant aspects.
First, although the autopsy doctor stated that the first entrance wound (presumably an important location to identify in a gunshot autopsy) was in the "posterior oropharynx at a point 7.5" from the top of he head," the reviewing doctors' report did not mention the initial entrance wound in the posterior oropharynx. Indeed, the reviewing doctors omitted any reference to the posterior oropharynx as being part of the wound track!
Second, the reviewing doctors reported the first entrance wound as having been in the soft palate, not the posterior oropharynx ("the bullet perforated the soft palate" - the "defect" language of the autopsy doctor has vanished and been replaced with the word "perforated").
Unless these differences in medical terminology are semantically insignificant, the autopsy doctor's placement of the entrance wound in the posterior oropharynx is significant because it is not consistent with the reported location of the exit wound, unless the bullet was deflected after it made its entrance in the posterior oropharynx. However, if there were such a deflection, it would have left physical evidence and no such evidence was reported.
The path of a bullet in an intra-oral gunshot which first perforates the posterior oropharynx would have to change direction significantly upward to follow the remaining wound track described by both the autopsy report and the report of the four Fiske reviewing doctors (ending by the bullet exiting the center rear of the skull in the classic "eat-your-gun" location, 3" below the top of the head at the level of the external occipital protuberance).
Were this hypothetical deflection to have been caused by contact with the front surface of one of the bones of the upper cervical vertebrae (the bones directly behind the posterior oropharynx and the only bones in the vicinity), the upward deflection required would have been about 40°, a sizable change in direction for a soft nosed high-velocity bullet fired from an Army Colt .38 Special revolver. Obviously, if the deflection were caused by anything lying behind the front surface of the cervical vertebrae, the deflection angle would have had to have been even greater.
There is no mention in the autopsy report or by the reviewing doctors of the bullet having been deflected, by the cervical vertebra or otherwise, even though the posterior oropharynx is not in line with the balance of the wound track described by either the autopsy or reviewing doctors.
If there had been no material deflection of a bullet making an entrance wound in Foster's posterior oropharynx (7.5" inches directly below the top of his head), it would have followed a horizontal, or perhaps slightly downward, trajectory and exited the center posterior of Foster's neck at or about the level of the second or third cervical vertebra.
Another Incremental Change Is Introduced By The Senate Committee Report
The Senate committee report on the Foster death (S. Rept. 103-433, Vol. 1, January 3, 1995) "improved" on the language of the four Fiske reviewing doctors who shifted the location of the first entrance wound from the "posterior oropharynx" of the autopsy report to the soft palate ("The bullet perforated the soft palate . . ") by stating on page 4 that ". . . Mr. Foster died in Fort Marcy Park from a self-inflicted gun shot wound to the upper [sic] palate of his mouth."
"Upper palate?" Since the authors of the Senate report presumably do not mean "hard palate" by their reference to the "upper palate" (no one has even intimated officially that the bullet perforated the hard palate, located on the roof of the mouth forward of the soft palate), what can they mean by their phrase "upper palate of his mouth"?
I believe it is reasonable to infer that the authors of the Senate report mean the "upper potion of the soft palate of his mouth" by "upper palate of his mouth." If so, they are continuing the "upward" progression of the location of the entrance wound begun by the Fiske reviewing doctors, from "posterior oropharynx" (autopsy report) to the "soft palate" (the reviewing doctors), to "upper palate" (authors of the Senate report).
Presumably, the purpose of this progressive change in the location of the first entrance wound is to make its official location more "palatable" with the balance of the wound track (which terminated, according to the autopsy report, with an exit wound in the upper center rear of Foster's skull, three inches below the crown of his head in the immediate vicinity of the occipital protuberance).
The Exit Wound Observed At The Funeral Home
Even before the discovery of the Medical Examiner's field report in the National Archives on July 19, 1997, with its altered language on page one ("MOUTH - [????] HEAD") and the unaltered language on page two ("mouth to neck"), there was evidence outside the official record that supported the existence of an exit wound in the center rear of Foster's neck at about the level of the second cervical vertebra.
A long-time friend of Foster's was interviewed on tape by Accuracy In Media relatively soon after the death. This witness told Accuracy In Media (and others) that, when Foster's body was in the Little Rock funeral home, the proprietor had allowed him to view the body and had called his attention to a dime-sized wound in the back of Foster's neck at the hairline. However, the autopsy report indicates no trauma whatsoever to the neck (see the attached "Gunshot Wound Chart").
[See a recounting of this interview and of Rob Bracci's analysis written by Reed Irvine for the January-A 1999 "AIM Report"]
Other Evidence Of A Neck Wound
The lack of an actual exit wound in the upper center rear of Foster's skull notwithstanding the autopsy report, is of course also supported by the paramedic in the park that night who reported that he saw no exit wound in the head when he bagged Foster's body (this paramedic also chose to code the death a "homicide," not a suicide, when he left the park that night with the body almost three hours after it had been discovered).
The FBI telex reporting "no exit wound" certainly is inconsistent with the autopsy report's description and illustration of a 1" by 1.25" portion of skull that had been blown out of Foster's head some 3" from the top of his head. The telex is, of course, also inconsistent with the existence of a dime-sized exit wound in the hairline of the rear of the neck, although this wound would of course, have been less conspicuous. Perhaps this inconsistency can be reconciled along the lines below.
The Family Reported Foster Knew Proper Intra-Oral Gunshot Technique
An exit wound in the back of the neck from an intra-oral shot is less indicative of suicide than an exit wound in the upper rear of the head. While both shots can result in death, a shot aimed to exit out the back of the neck is significantly more likely to leave the victim alive. Most people who commit suicide via intra-oral gunshot, after putting the barrel of the gun in the mouth, point it toward the rear and angle the barrel upward, aiming for the upper posterior of the brain (consistent with the exit wound depicted by the autopsy doctor).
The accuracy required for such a shot to be fatal is much less than that of an intra-oral shot that is not angled upward, but instead aimed to travel horizontally and sever the upper end of the spinal cord. As we have learned in recent years, those with severely damaged upper spinal cords, can live as quadriplegics, many of them able to breathe without assistance. Presumably a person planning to kill himself via an intra-oral gunshot would, at all costs, want to avoid such a result by aiming upward for the brain.
But what about Mr. Foster? He was not known as a "gun person," so maybe he had no clear understanding how to kill himself via a gun shot to the mouth.
According to statements made under oath by the lead US Park Police Investigator at the body site in Fort Marcy Park who drove to the Foster home with his superior that night and personally notified Lisa Foster that her husband was dead, she responded "did he put it in his mouth?" very shortly after being told of the "apparent" gun shot suicide.
The Park Police Investigator reported that he found Lisa Foster's question "odd," but subsequent information may shed some light on the reasons for her remark.
A September 11, 1995, article in The New Yorker by Peter Boyer, reported that Lisa at first thought, "I didn't know that he knew how to kill himself." The article goes on to tell us, however, that Lisa Foster, soon learned otherwise: "But the children reminded me that he [Foster] had just watched 'A Few Good Men,' and that is how the guy in the movie did it - he shot himself in the mouth."
If the family's opinion is correct and Foster "knew how to kill himself" by watching how the Executive Officer of the Marine unit at Guantanamo Bay, Cuba, killed himself by a shot into the mouth in the movie "A Few Good Men," he would certainly have realized that one does not put the gun barrel in one's mouth and aim for the back of the neck. No - one places the gun barrel in the mouth and angles it appreciably (if not almost vertically) upward so that the bullet will blow out the upper rear center of the skull.
The Evolution Of The Official Position On The Gunshot?
Was the actual location of Foster's exit wound (in the back of the neck at the hairline) changed (to the upper center rear of the head, 3" below the crown) so that it would correspond to the expected location of the exit wound in a classic intra-oral gunshot suicide?
Was the first official position that there was no exit wound? If so, was this position chosen because the exit wound in the back of the neck was in the "wrong place" for an intra-oral gunshot suicide and thus would materially undercut the official conclusion of suicide? This position would account for the FBI being told (or deciding) that there was "no exit wound" and reporting that to the Director's office in the telex described above.
Was the second official position, that there was an exit wound in the upper rear center of the skull, initially frustrated because the bullet from the actual fatal shot (the small entrance wound seen by Paramedic Richard Arthur under the inside of the right jawline) had come to rest inside the upper rear skull, producing the skull fractures in that area depicted by the autopsy report, and that bullet had appeared on the autopsy X-rays and therefore would have been discovered to be totally inconsistent with the size and weight of a bullet fired by the official death weapon (the Army Colt Special firing high velocity .38 ammunition)?
This hypothesis would explain why the report written by the senior of the four US Park Police employees who attended the autopsy on July 21 could accurately state that the autopsy doctor told the Park Police in attendance that "X-rays indicated that there was no evidence of bullet fragments in the head" (the .22, or other small caliber bullet, lodged just inside the top of the skull, would not match a round fired by the official death weapon, so any evidence of the small caliber round, such as the X-rays, had to "disappear" if the eventual official position documented in the autopsy report was to be sustained).
Although obviously speculative, this hypothesis also serves to explain why the autopsy doctor indicated in his autopsy forms completed during the autopsy that he had taken X-rays. He said this to support his contemporaneous claim to the Park Police that there was no bullet in the head, even though there was a bullet in the head, a bullet that was inconsistent with a bullet fired by the official death weapon. The "X-rays taken" check-mark made on July 21 at the autopsy would contradict the autopsy doctor's later statements under oath that he took no X-rays (and, under this hypothesis, should have been removed from the "Gun Shot Wound Chart," one of the five pages prepared on July 21 at the autopsy itself that later were combined with the first two pages in the seven-page autopsy report that were typed up after July 21).
Of course, later the doctor testified that he had not taken X-rays so he could avoid having to produce them. [Although he said the X-ray machine was not working at the time of Foster's death, Reed Irvine of Accuracy in Media documented that the first service call on this two-month old machine did not occur until three months after the death.]
When confronted with the report by the attending US Park Police officers stating that the doctor told them the results of the X-rays, the autopsy doctor had no explanation except to repeat that he took no X-rays. This bizarre "X-ray" incident is described in more detail below.
This hypothesis would also explain why the autopsy doctor, as noted in the US Park Police report, violated normal procedure and began the autopsy prior to the arrival of the attending police officers by removing the tongue and soft palate (if the small caliber shot that Paramedic Arthur claimed produced an entrance wound just inside the right jawline existed, it would likely have perforated not only the soft palate but also the tongue).
If they had seen a bullet hole in the tongue, the police officers who observed the autopsy, though obviously not medical specialists, might have wondered how a man who supposedly killed himself by placing a gun barrel in his mouth and blowing out the upper center rear of his head managed, with the same shot, to blow a hole in his tongue.
They likely would have put that observation of a bullet hole in the tongue (just as they included the doctor's statement regarding the X-ray results) in their own report, thereby further undermining the suicide finding. Thus, it was necessary to conceal the bullet hole in the tongue from the police by removing the soft palate and tongue prior to their arrival. The "pre-autopsy" is also described in more detail below.
If "shenanigans" like those described above accompanied the autopsy, that might explain in part why the autopsy doctor, despite a direct request from the police officers present, refused to give them the name of his diener (autopsy assistant) for their report.
To his credit, Mr. Starr's report on the Foster death (page 30) quotes the autopsy report accurately regarding the entrance wound being in the "posterior oropharynx at a point approximately 7 ½" from the top of the head" (As Reed Irvine of AIM has pointed out, Starr's own reviewing doctor, Dr. Brian Blackbourne may have objected to the language of the Fiske reviewing doctors that omitted any reference to the entrance wound in the posterior oropharynx and instead placed the first entrance wound in the soft palate).
Starr's report also cites a non-public OIC interview with Dr. Beyer in which he confirms that the first entrance wound was in the posterior oropharynx. In this interview, Beyer also states that there was "good alignment" between the entrance and exit wounds something that is difficult to understand given Dr. Beyer reported the entrance wound was about 7 ½" inches below the crown of the head (even allowing a ¼" inch or so for the thickness of the hair and scalp) - a location consistent on Foster's skull with the approximate middle of the vertical extent of the oropharynx (not the very top of the oropharynx at the tip of the uvula where the nasopharynx begins).
Autopsy Report (186 KB)
Medical Examiner's Field Report (677 KB)
FBI telex (180 KB)