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The Starr Report on the Death of Vincent Foster

NOTICE This is the only web site on the entire world wide web that displays the complete Starr Report on the Death of Vincent Foster. Click to view Original pdf file

This web page contains the October 10, 1997 press release from the Office of Independent Counsel followed by the entire 137 page Starr Report including the historic court ordered 23 page addendum. 

The Starr Report is officially known as the:

REPORT ON THE DEATH OF VINCENT W. FOSTER, JR., BY THE OFFICE OF INDEPENDENT COUNSEL IN RE: MADISON GUARANTY SAVINGS AND LOAN ASSOCIATION.

The existence and contents of the addendum to Starr's report has still never been reported to the American people by the American press.    The event marked the first time in the history of the Independent Counsel statute that an Independent Counsel was ordered to include evidence of a cover-up by his staff in his report. The Honorable David B. Sentelle, Peter Fay, and John Butzner ordered Kenneth Starr over his objections to include 20 pages of evidence submitted by Whitewater grand jury witness Patrick Knowlton.  The complete news blackout by American journalists has kept this evidence from the American people.

note: This html version of the Starr Report is complete but it is not completely formatted so some of the text may appear different from the original.  A copy of the entire Starr Report may be obtained from any government printing office by requesting document # 028-004-00095-8.  The telephone number of the Government Printing Office in Washington DC is 202-512-1800.

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Report on the Death of Vincent W. Foster, Jr.
Office of the Independent Counsel
1001 Pennsylvania Avenue, N.W.
Suite 490-North
Washington, D.C. 20004
(202) 514-8688
Fax (202) 514-8802

FOR IMMEDIATE RELEASE
October 10, 1997

The following statement was released today by the Office of Independent Counsel In re: Madison Guaranty Savings & Loan Association:

Today, the United States Court of Appeals for the District of Columbia Circuit authorized public release of the Office of Independent Counsel's report on the death of Vincent W. Foster, Jr. The report is now available for purchase from the Government Printing Office. The phone number of the Government Printing Office is 202-512-1800.

Members of the news media may obtain a copy of the report today from the Office of Independent Counsel in Washington.




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FOR IMMEDIATE RELEASE Inquiries about Jim Cameron
October 10, 1997 sales copies: U.S Government Information
202-512-1709

Report on the Death of Vincent W. Foster, Jr. by the Office of Independent Counsel in Re: Madison Guaranty Savings and Loan Association Now Available for Sale from Superintendent of Documents

Washington, DC - A Report on the Death of Vincent W. Foster, Jr. by the Office of Independent Counsel in Re: Madison Guaranty Savings and Loan Association is now available for sale from the Superintendent of Documents.

The report is available as a two-volume set consisting of a 114-page report and 23-page appendix for $12. (Price includes regular shipping and handling.) The report and appendix may be ordered from the Superintendent of Documents by phone, fax, or mail and, immediately following its official release on October 10, may be purchased at either of the two U.S. Government Bookstores located in Washington, D.C. (732 North Capitol St. and 1510 H St. NW). The following week the report will also be available at the other 22 U.S. Government Bookstores located across the country.

Orders for Report on the Death of Vincent W. Foster, Jr. should reference the 12-digit stock number 028-004-00095-8 and include $12 payment.

Orders may be faxed 24 hours a day to (202) 512-2250. Phone orders may be placed weekdays, 7:30 a.m. to 4 p.m. eastern time by calling (202) 512-1800. Customers ordering by fax or phone must provide their VISA, MasterCard, or Discover/NOVUS account number and expiration date. Mail orders should be addressed to Superintendent of Documents, P.O. Box 371954, Pittsburgh PA, 15250-7954, and include a check or money order payable to: Superintendent of Documents, or credit card account number and expiration date.

The Superintendent of Documents is the official source for the sale of information published by more than 100 Federal entities. More than 12,000 books, periodicals, and electronic information products are available on a wide range of topics.

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


Division (94-1) for the Purpose of Appointing Independent Counsels


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REPORT ON THE DEATH OF VINCENT W. FOSTER, JR., BY THE OFFICE OF INDEPENDENT COUNSEL IN RE: MADISON GUARANTY SAVINGS AND LOAN ASSOCIATION
_____________________________________________________________________

United States Court of Appeals
For the District of Columbia Circuit


FILED OCT 10 1997
Special Division




UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


Division for the Purpose of
Appointing Independent Counsels


Ethics in Government Act of 1976, As Amended


In re: Madison Guaranty Savings & Loan Association Division No. 94-1


Before: SENTELLE, Presiding, and BUTZNER and FAY, Senior Circuit Judges

O R D E R

Upon consideration of the motion of Independent Counsel Starr for leave to publicly release the Report on the Death of Vincent Foster, it is

ORDERED that the motion be granted. It is therefore

ORDERED, ADJUDGED, and DECREED that the Report on the Death of Vincent Foster, inclusive of an appendix containing all comments or factual information submitted by any individual pursuant to 28 U.S.C. 594, shall be released to the public.


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TABLE OF CONTENTS


I. INTRODUCTION.........................................................................................1


II. BACKGROUND...........................................................................................4


A. 1993 Park Police Investigation.....................................................4


B. 1994 Fiske Investigation..............................................................5


C. Congressional Inquiries...............................................................7


D. Appointment of the Independent Counsel....................................8


III. OVERVIEW.................................................................................................9


A. Scrutiny.....................................................................................9


B. OIC Personnel..........................................................................10


C. Methodology............................................................................12


D. Report......................................................................................15


IV. FACTUAL SUMMARY..............................................................................17


A. Mr. Foster's Background and Activities on July 20, 1993............17


B. Fort Marcy...............................................................................19


V. FORENSIC ANALYSES............................................................................28


A. Autopsy...................................................................................28


B. Laboratory Analyses.................................................................35


1. Gun................................................................................36


a. Operation..............................................................36


b. Serial Numbers......................................................37


c. Ammunition..........................................................38


d. DNA.....................................................................38


e. Blood....................................................................39


f. Fingerprints...........................................................40


g. Marks on Body from Gunshot and Gun..................42


(1) Gunshot Residue on Hands...........................42


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(2) Indentation on Thumb...................................43


h. Summary: Gun.......................................................44


2. Clothing..........................................................................44


a. Gunshot Residue...................................................45


b. Bloodstain Patterns as Depicted in Photographs
from Scene............................................................46


c. Blood Drainage After Movement from Fort
Marcy Park and Bloodstains on Clothing
at Autopsy.............................................................48


d. Mineral/Vegetative Material.....................................49


e. Lack of Rips, Tears, or Scraping on Clothing..........51


f. Bone Chip..............................................................51


g. Pants Pocket and Oven Mitt....................................52


h. Hairs and Fibers......................................................55


3. Eyeglasses........................................................................57


a. Blood......................................................................57


b. Gunpowder.............................................................58


c. Summary: Glasses...................................................58


4. Surrounding Area..............................................................58


a. Gunshot Residue in Soil...........................................58


b. Possible Bloodstains on Vegetation at Scene.............59


5. Contents of Bodily Fluids...................................................59


C. Review by Pathologists................................................................60


VI. ISSUES RELATING TO EVIDENCE AT SCENE..........................................65


A. Blood Transfer Stain....................................................................66


B. Quantity of Blood........................................................................66


C. Unidentified Persons and Cars......................................................68


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D. Car Locks....................................................................................70


E. Neighborhood..............................................................................71


F. Pager...........................................................................................72


VII. ISSUES RELATED TO CONDUCT OF INITIAL INVESTIGATION.............72


A. Photographs.................................................................................72


B. Keys............................................................................................74


C. X-Rays........................................................................................75


VIII. OTHER ISSUES............................................................................................77


A. Gun Observation and Ownership..................................................77


1. Observations of Gun at Scene...........................................77


2. Ownership of Gun..............................................................79


B. Briefcase.....................................................................................85


1. Mr. Foster's Departure from the White House.....................85


2. Mr. Foster's Car at Fort Marcy...........................................87


3. Park Police Commmunications with Secret Service..............90


4. Mr. Foster's Office at the White House...............................90


5. Mr. Foster's Briefcase........................................................91


6. Summary: Briefcase...........................................................91


C. Notification.................................................................................91


D. Search for Bullet.........................................................................94


IX. STATE OF MIND.........................................................................................96


A. Dr. Berman's Analysis.................................................................97


B. Evidence...................................................................................102


X. SUMMARY OF CONCLUSIONS...............................................................110




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UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


Division (94-1) for the Purpose of
Appointing Independent Counsels
_____________________________________________________________________


REPORT ON THE DEATH OF VINCENT W. FOSTER, JR., BY THE OFFICE OF INDEPENDENT COUNSEL IN RE: MADISON GUARANTY SAVINGS AND LOAN ASSOCIATION
_____________________________________________________________________


I. INTRODUCTION


In accordance with 28 U.S.C. 594 (h), the Office of Independent Counsel In re: Madison Guaranty Savings & Loan Association (the OIC) files this summary report on the 1993 death of Deputy White House Counsel Vincent W. Foster, Jr.


On July 20, 1993, police and rescue personnel were called to Fort Marcy Park in suburban Northern Virginia. They found Mr. Foster lying dead with a gun in his right hand and gunshot residue-like material on that hand. There were no signs of a struggle. There was a gunshot wound through the back of his head and blood under his head and back. The autopsy determined that Mr. Foster's death was caused by a gunshot through the back of his mouth exiting the back of his head. The autopsy revealed no other wounds on Mr. Foster's body.


The police later learned that Mr. Foster had called a family doctor for antidepressant medication the day before his death.


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He had told his sister four days before his death that he was depressed, and she had given him the names of three psychiatrists. He had written in the days or weeks before his death that he "was not meant for the job or the spotlight of public life in Washington. Here, ruining people is considered sport."


Two law enforcement investigations -- the initial United States Park Police investigation and a subsequent investigation under the direction of regulatory Independent Counsel Robert B. Fiske, Jr. -- concluded that Mr. Foster committed suicide by gunshot at Fort Marcy Park. Two inquiries in the Congress of the United States reached the same conclusion. After analysis of the evidence gathered during those investigations, and further investigation including adducing evidence before the federal grand jury in Washington, D.C., the OIC likewise has concluded that Mr. Foster committed suicide by gunshot in Fort Marcy Park.


The OIC's conclusion is based on analyses and conclusions of a number of experienced experts and criminal investigators retained by the OIC. They include Dr. Brian D. Blackbourne, a forensic pathologist who is the Medical Examiner for San Diego County, California; Dr. Henry C. Lee, an expert in physical evidence and crime scene reconstruction who is Director of the Connecticut State Police Forensic Science Laboratory; Dr. Alan L. Berman, an expert suicidologist who currently is Executive Director of the American Association of Suicidology; and several


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experienced investigators with extensive service in the Federal Bureau of Investigation (FBI) and other law enforcement agencies. These experts and investigators reviewed the evidence gathered during the prior investigations and conducted further investigation as necessary.


Dr. Blackbourne concluded that "Vince Foster committed suicide on July 20, 1993 in Fort Marcy Park by placing a .38 caliber revolver in his mouth and pulling the trigger. His death was at his own hand."[1] Dr. Lee reported that "[a]fter careful review of the crime scene photographs, reports, and reexamination of the physical evidence, the data indicate that the death of Mr. Vincent W. Foster, Jr. is consistent with a suicide. The location where Mr. Foster's body was found is consistent with the primary scene," that is, with the location where he committed suicide. [2] Dr. Berman stated that "[i]n my opinion and to a 100% degree of medical certainty, the death of Vincent Foster was a suicide. No plausible evidence has been presented to support any other conclusion."[3] OIC investigators concurred, based on investigation and analysis of the evidentiary record, that Mr. Foster committed suicide by gunshot in Fort Marcy Park.
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[1] Report to the Office of the Independent Counsel Concerning the Death of Vincent Foster, submitted by Dr. Brian D. Blackbourne, M.D., at 5 (Blackbourne report).


[2] Forensic Report to the Office of the Independent Counsel In Re Vincent Foster, Jr., submitted by Dr. Henry C. Lee, Ph.D., at 495 (Lee Report).


[3] Report to the Office of Independent Counsel, submitted by Dr. Alan L. Berman, Ph.D., at 15 (Berman report).


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II. BACKGROUND


A. 1993 Park Police Investigation


Because Mr. Foster's body was found in Fort Marcy Park, a park maintained by the National Park Service, the United States Park Police conducted the investigation of his death.[4] On the night of the death (July 20, 1993), Mr. Foster's body was transported to Fairfax County Hospital in Fairfax, Virginia. The next day, Dr. James C. Beyer, Deputy Chief Medical Examiner, Northern Virginia District of the Virginia Office of the Chief Medical Examiner, conducted an autopsy in the presence of an assistant and four Park Police Officers.


The FBI assisted the Park Police in certain aspects of the ensuing death investigation, as did other federal and Virginia agencies. Moreover, the FBI, at the direction of the Department of Justice, opened a separate investigation of possible obstruction of justice after a note was found on Monday, July 26, 1993, in Mr. Foster's briefcase at the White House.


On August 10, 1993, the Department of Justice, FBI, and Park Police jointly announced the result of the death and note investigations. The Park Police concluded that Mr. Foster


[4] See 16 U.S.C. 1a-6(b). The FBI has mandatory jurisdiction to investigate the murders of certain high-ranking individuals employed at the White House -- those appointed under Section 105 (a) (2) (A) of title 3 employed in the Executive Office of the President. See 18 U.S.C. 1751 (a) defining persons covered by statute). Mr. Foster was appointed under Section 105 (a) (2) (B) and thus was not an official covered by Section 1751. OIC Doc. No. DC-210-5151.


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committed suicide by gunshot in Fort Marcy Park. Robert Langston, Chief of the Park Police, explained:


The condition of the scene, the medical examiner's findings and the information
gathered clearly indicate that Mr. Foster committed suicide. Without an eyewitness,
the conclusion of suicide is deducted after a review of the injury, the presence of
the weapon, the existence of some indicators of a reason, and the elimination
of murder. Our investigation has found no evidence of foul play. The information
gathered from associates, relatives and friends provide us with enough evidence
to conclude that Mr. Foster's -- that Mr. Foster was anxious about his work and
was distressed to the degree that he took his own life."[5]


Based on the evidence the FBI gathered in its investigation, the Department of Justice did not seek criminal charges for obstruction of justice relating to the handling of the note.[6]


B. 1994 Fiske Investigation


In 1992 and 1993, the Resolution Trust Corporation (RTC) examined the operations of Madison Guaranty Savings & Loan, a defunct savings and loan in Little Rock, Arkansas, that had been operated by James and Susan McDougal. The McDougals also had been partners with William Jefferson Clinton in an Arkansas real estate venture known as the Whitewater Development Company. In October 1993, the RTC sent nine criminal referrals to the United States Attorney's Office in Little Rock concerning the activities of Madison Guaranty.[7]


[5] Federal News Service (August 10, 1993)


[6] Id.


[7] In September 1992, the RTC sent one criminal referral regarding Madison Guaranty to the United States Attorney's Office in Little Rock.


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Also in 1993, the FBI investigated the activities of Capital Management Services, Inc., a small business investment company in Little Rock that had been operated by David L. Hale. Mr. Hale was indicted by a federal grand jury in the Eastern District of Arkansas on September 23, 1993.


Both the Hale prosecution and the Madison investigation were transferred in November 1993 from the United States Attorney's Office in Little Rock to the Fraud Section of the Department of Justice in Washington. On December 20, 1993, the White House confirmed that Whitewater-related documents had been in Mr. Foster's White House Office at the time of his death. On January 12, 1994, President Clinton asked Attorney General Reno to appoint an independent counsel, and on January 20, 1994, the Attorney General appointed Robert B. Fiske, Jr., to take over the investigation.


Mr. Fiske's jurisdictional mandate vested him with authority to investigate whether any individuals or entities committed federal crimes "relating in any way to president William Jefferson Clinton's or Mrs. Hillary Rodham Clinton's relationship with (1) Madison Guaranty Savings and Loan, (2) Whitewater Development Corporation, or (3) Capital Management Services." After his appointment, Mr. Fiske took over both the Hale prosecution and the continuing Madison investigation.


Mr. Fiske also opened a new investigation of Mr. Foster's death, utilizing FBI resources and a panel of distinguished and


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experienced pathologists. On June 30, 1994, Mr. Fiske issued a report concluding that "[t]he overwhelming weight of the evidence compels the conclusion...that Vince Foster committed suicide in Fort Marcy Park on July 20, 1993."


C. Congressional Inquiries


On February 24, 1994, Congressman William F. Clinger, Jr., then the ranking Republican on the Committee on Government Operations of the United States House of Representatives, initiated a probe into the death of Mr. Foster. Mr. Clinger's staff interviewed emergency rescue personnel, law enforcement officials, and other persons involved in the Park Police investigation of Mr. Foster's death.[9] Mr. Clinger's staff obtained access to the Park Police reports and to photographs taken at the scene and at the autopsy.[10] Mr. Clinger issued a report on August 12, 1994, concluding that "all available facts lead to the conclusion that Vincent W. Foster, Jr. took his own life in Fort Marcy Park, Virginia on July 20, 1993."[11]


The United States Senate Committee on Banking, Housing, and


[8] Report of the Independent Counsel Robert B. Fiske, Jr., In Re Vincent W. Foster, Jr. at 58 (June 30, 1994) (Fiske Report)


[9] Summary Report by William F. Clinger, Jr., Ranking Republican, Committee on Government Operations, U.S. House of Representatives, on the Death of White House Deputy Counsel Vincent W. Foster, Jr., at 1 (Aug. 12, 1994).


[10] Id.


[11] Id. at 6.


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Urban Affairs conducted an inquiry into the Park Police investigation of Mr. Foster's death. The Committee concluded its inquiry with a report issued on January 3, 1995, stating that "[t]he evidence overwhelmingly support the conclusion of the Park Police that on July 20, 1993, Mr. Foster died in Fort Marcy Park from a self-inflicted gun shot wound to the upper palate of his mouth."[12] The additional views of Senators D'Amato, Faircloth, Bond, Hatch, Shelby, Mack, and Domenici stated that "[w]e agree with the majority's conclusion that on July 20, 1993, Vincent Foster took his own life in Fort Marcy Park."[13]


D. Appointment of the Independent Counsel


On August 5, 1994, after enactment of the Independent Counsel Reauthorization Act of 1994, the Special Division of the United States Court of Appeals for the District of Columbia Circuit appointed Kenneth W. Starr as Independent Counsel In re: Madison Guaranty Savings and Loan Association. The OIC was given jurisdiction to investigate and prosecute matters "relating in any way to James B. McDougal's, President William Jefferson Clinton's, or Mrs. Hillary Rodham Clinton's relationships with Madison Guaranty Savings and Loan Association, Whitewater Development Corporation, or Capital Management Services, Inc."


Due to continuing questions about Mr. Foster's death, the relationship between Mr. Foster's death and the handling of documents (including Whitewater-related documents) from Mr.


[12] S. Rep. No. 103-433, at 4 (Jan. 3, 1995)


[13] Id. at 51.


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Foster's office after his death, and Mr. Foster's possible role or involvement in other events under investigation by the OIC, the OIC reviewed and analyzed the evidence gathered during prior investigations of Mr. Foster's death and conducted further investigation.


III. OVERVIEW


A. Scrutiny


The gunshot death of a high-ranking White House lawyer who had been a law partner of the First Lady of the United States and friend to both the President and the First Lady was bound to be heavily scrutinized -- and it has been. Many persons have publicly identified specific issues regarding Mr. Foster's death that, in their view, might raise broader questions about the ultimate conclusion that Mr. Foster committed suicide in Fort Marcy Park. Those questions have arisen and to some extent persisted for many of the same reasons that numerous suicides are questioned. In this case, as in many suicides, no identified eyewitness saw Mr. Foster commit suicide, and Mr. Foster apparently did not leave a suicide note (that is, a note that specifically refers to or contemplates suicide).[14]


The primary issues that have been raised regarding the cause


[14] The great majority if individuals committing suicide do not leave a note. See, e.g., Berman report at 15; A. Leenaars, Suicide Notes, Communication and Ideation in Assessment and Prediction of Suicide (R. Maris, A. Berman, J. Maltsberger & R. Yufit, eds. 1992) (12-15% of suicide victims leave note); A. Berman, Suicide Notes and Communications in Comprehensive Textbook of Suicidology and Suicide Prevention (R. Maris, A. Berman & M. Silverman eds.) (forthcoming)


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and manner of Mr. Foster's death can be grouped into several broadly defined categories: (1) forensic issues; (2) apparent differences in statements of private witnesses, Park Police personnel, and Fairfax County Fire and Rescue Department (FCFRD) personnel regarding their activities and observations at Fort Marcy Park on July 20; (3) physical evidence (such as the fatal bullet) that could not be recovered; and (4) the conduct of the Park Police investigation and the autopsy.[15]


B. OIC Personnel


To ensure that these issues were fully considered, carefully examined, and properly assessed in analyzing the cause and manner of Mr. Foster's death, the OIC retained a number of experts and criminal investigators. The experts include Dr. Brian D. Blackbourne, Dr. Henry C. Lee, and Dr. Alan L. Berman.


Dr. Blackbourne has been county Medical Examiner for San Diego County, California, since 1990. He was Chief Medical Examiner for the Commonwealth of Massachusetts from 1983 to 1990; Deputy Chief Medical Examiner in Washington, D.C., from 1972 to 1982; and Assistant Medical Examiner in Metropolitan Dade County, Florida, from 1967 to 1972. He has taught and written widely, and has testified in court on numerous occasions. He has performed over 5,500 autopsies, over 700 of which have involved gunshot wounds. The autopsies have included over 800 homicides


[15] Numerous individuals, including members of the news media, analyzed the information made public by the Senate after its inquiry and published or sent the OIC theories, articles, and reports. OIC investigators have reviewed that sizable body of information and have taken it into account.


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and over 700 suicides. He is a Fellow of the American Academy of Forensic Sciences and a member of the National Association of Medical Examiners.


Dr. Lee has served as Director of the Connecticut State Police Forensic Science Laboratory since 1980. He has numerous professional affiliations and has served as a consultant to a variety of organizations. He has received over 400 awards and commendations, including a 1986 Distinguished Service Award and a 1994 Distiguished Fellow Award from the American Academy of Forensic Sciences. He has been qualified in many state and federal courts as an expert witness or an expert involved in forensic science, forensic serology, bloodspatter analysis, crime scene investigation, crime scene profiling, crime scene reconstruction, fingerprints, imprints, and general physical evidence. He has written or edited many books and articles including Physical Evidence (1995), Crime Scene Investigation (1994), Physical Evidence and Forensic Science (1985), Physical Evidence and Crime Scene Investigation (1983).


Since 1995, Dr. Berman has been Executive Director of the American Association of Suicidology. He was President of that association in 1984-85. From 1991 to 1995, he was the Director of the National Center for the Study and Prevention of Suicide. Since 1971, he has engaged in the private practice of psychotherapy and psychological consultation. In 1982, he received the Edwin S. Shneidman Award for outstanding contribution in research by the American Association of


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Suicidology. He has taught and written extensively on the subject of suicide, and has testified before committees of the United States House of Representatives and the United States Senate. He is a Distinguished Adjunct Professor of Psychology at the American University in Washington, D.C., and was a tenured professor in the Department of Psychology from 1979 to 1991. He was co-editor of Assessment and Prediction of Suicide (1992). He has been a Consulting Editor of the journal Suicide and Life Threatening Behavior since 1981.


OIC investigators who worked with these outside, independent experts included and FBI agent detailed from the FBI-MPD[16] Cold Case Homicide Squad in Washington, D.C. Agents with the Cold Case Squad work with MPD homicide detectives in reviewing and attempting to solve homicides that have remained unsolved for more than one year. Another OIC investigator has extensive homicide experience as a detective with the MPD in Washington, D.C., for over 20 years. Two other investigators assigned to the Foster death matter have experience as FBI agents investigating homicides of federal officials and others.[17]


C. Methodology


The OIC devoted substantial effort to gathering, examining, and analyzing evidence to render as conclusive a determination as possible of the cause and manner of Mr. Foster's death. In this


[16] "MPD" refers to Metropolitan Police Department of Washington, D.C.


[17] These investigators did not work on previous investigations of Mr. Foster's death.


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kind of investigation -- a reconstruction based in part on evidence gathered and tested during prior investigations -- the important information in assessing the cause and manner of death includes testimonial, documentary, and photographic evidence relating to the scene and the autopsy; physical and forensic evidence gathered at the scene and the autopsy; a variety of tests and analyses of the evidence; and testimonial and documentary evidence revealing the decedent's activities and state of mind in the days and weeks before his death.[18]


In particular, the OIC obtained information gathered during the prior investigations of Mr. Foster's death, including physical evidence; photographs taken at the scene and the autopsy; and incident reports, interview reports, and other documents produced or gathered by the Park Police, the FCFRD, the FBI, and Mr. Fiske's Office. The OIC questioned the known and identified civilian witnesses who were in Fort Marcy Park in the late afternoon of July 20, the Park Police and FCFRD personnel who responded to Fort Marcy Park, and the medical personnel who were involved in the Foster matter. Many of the persons were questioned before the federal grand jury.[19]


As to forensic information, the OIC attempted to obtain certain physical evidence in addition to that which had been gathered in prior investigations. Experts retained by


[18] See Crime Scene Investigation (Lee ed. 1994); see also Practical Homicide Investigation (Geberth ed. 1996)


[19] The OIC also took appropriate steps to inquire into all allegations and information it received.


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the OIC reviewed and examined the evidence. Dr. Lee reviewed and studied scene and autopsy photographs and documentation; studied, re-examined, and tested physical evidence; reviewed FBI Laboratory tests and the autopsy results; met with FBI Laboratory and Dr. Beyer, the medical examiner who conducted the autopsy; and toured and examined the Fort Marcy Park scene. Dr. Lee submitted a report summarizing his work on the physical and forensic evidence and setting forth his analysis.[20]


Dr. Blackbourne reviewed the relevant reports and the scene and autopsy photographs; reviewed microscopic slides; examined the Fort Marcy Park area; and interviewed Dr. Beyer, Dr. Haut (the medical examiner who responded to the Fort Marcy Park scene on July 20), and FBI and Virginia laboratory personnel. Dr. Blackbourne prepared a report summarizing his work on the forensic issues and setting forth his analysis.


As to information regarding Mr. Foster's activities and state of mind before his death, the OIC both re-interviewed certain person who had been interviewed during prior investigations and interviewed persons not previously


[20] As Dr. Lee explained, a perfect reconstruction of the circumstances of Mr. Foster's death was not possible at the time of the OIC's investigation. The reason include the lack of complete documentation of the original shooting scene; the lack of subsequent records and photographs of each item of physical evidence prior to examination; the lack of x-rays of Mr. Foster's body from the autopsy; the lack of documentation of the amount of blood, tissue, and bone fragments in the areas at the scene under and around Mr. Foster's head; the lack of close-up photographs of any definite patterns and quantity of the blood stains found on Mr. Foster's clothing and body at the scene;and the unknown location of the fatal bullet, which makes complete reconstruction of the bullet trajectory difficult. Lee Report at 485.


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interviewed. These individuals included a variety of family members, friends, and associates who could potentially shed light on Mr. Foster's activities and state of mind. The OIC reviewed documents gathered in prior investigations, and sought and reviewed new documents.


The OIC provided Dr. Berman with relevant state-of-mind information (the bulk of which consisted of interview reports and transcripts), which he studied and analyzed. Dr. Berman submitted a report to the OIC summarizing his work and providing his analysis.


The OIC legal staff in Washington, D.C., and Little Rock, Arkansas, participated in assessing the evidence, considering the analyses and conclusions of the OIC experts and investigators, and preparing this report.


D. Report


This report will describe the factual background; the forensic evidence and analyses, including the autopsy findings; the analysis of Dr. Lee, and the analyses and reports prepared by Dr. Blackbourne and the pathologists retained by Mr. Fiske's Office. Above all, the Foster death case is a forensic matter, and the forensic evidence and analyses provide the foundation for the ultimate conclusion. The report then will discuss investigative work with respect to other, specific issues. Finally, the report will summarize Dr. Berman's


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conclusions regarding Mr. Foster's state of mind.[21]


The OIC has filed this summary report with the Special Division of the United States Court of Appeals. Because of the secrecy restrictions of Federal Rule of Criminal Procedure 6(e), the OIC had not submitted the report to the Congress or released it directly to the public.[22] The Special Division retains discretion to authorize public release of this report, and the OIC has prepared the report with the assumption that the Special Division, consistent with past practice, would see fit to authorize public release. While some descriptions of forensic evidence are necessarily graphic, the OIC has sought to comply with the 1994 Independent Counsel Reauthorization Act regarding the contents of reports.[23]


Some of the best evidence of the condition of Mr. Foster's body at the time of his death is contained in photographs taken


[21] The OIC's summary report is based on, among other sources, Dr. Lee's analysis, Dr. Blackbourne's analysis, Dr. Berman's analysis, and a number of internal OIC memoranda prepared by OIC personnel. Those documents were based on and incorporate grand jury information. The documents represent the work product of the OIC and were part of the OIC's deliberative process used to reach a decision on the Foster death matter.


[22] Because considerable testimonial evidence was gathered before the grand jury, the OIC filed a Rule 6(e) disclosure application permitting the inclusion of grand jury information in this report to the Court. See In Re North, 16 F. 3d 1234, 1244 (D.C. Cir. 1994). The Court granted that motion.


[23] The Conference Report stated that an independent counsel must exercise "restraint" in a report and that "the conferees want to make it clear that the final report requirements is not intended in any way to authorize independent counsels to make public findings or conclusions that violate normal standards of due process, privacy or simple fairness." H.R. Conf. Rep. No. 103-511, at 19 (1994).


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by Park Police officers at Fort Marcy Park and in photographs taken at the autopsy. However, based on traditional privacy considerations, this report does not include death scene or autopsy photographs. The potential for misuse and exploitation of such photographs is both substantial and obvious.[24]


IV. FACTUAL SUMMARY


A. Mr. Foster's Background and Activities on July 20, 1993


Vincent W. Foster, Jr., was born on January 15, 1945, in Hope, Arkansas, to Alice Mae and Vincent W. Foster. He had two sisters, Sheila and Sharon. He was graduated from Hope High School in 1963 and from Davidson College in 1967. He married Elizabeth (Lisa) Brader in 1968, and they had three children, two boys and a girl. Mr. Foster was graduated first in his class from the University of Arkansas School of Law in 1971, where he was Managing editor of the Law Review. He joined the Rose Law Firm in Little Rock in 1971 as an associate, and became a Member of the Firm in 1974. Mr. Foster left the Rose Law Firm and moved to Washington in January 1993 to serve as Deputy White


[24] Cf., e.g., Navy Report Omits Suicide Notes, N.Y. Times, Nov. 2, 1996, at 9 (regarding suicide of Admiral Boorda: "The Navy Department decided not to make the note public... Many other items in the report are blacked out, like the autopsy report and the identities of people interviewed by investigators."); Katz v. National Archives and records Administration, 68 F.3d 1438, 1441 (D.C. Cir. 1995) ("Out of concern for the Kennedy family's privacy,...the x-rays and photographs did not become a part of the record of the Warren Commission.").


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House Counsel.[25] He initially lived in Washington with his sister Sheila Anthony and her husband Beryl Anthony. Mrs. Lisa Foster moved to Washington in early June 1993, and the family lived in a house in the Georgetown section of Washington.


On the morning of Tuesday, July 20, 1993, six months into the Clinton Administration, Mr. Foster drove his gray Honda Accord to the White House from the house in Georgetown where he and his family were living. After dropping off his older son and his daughter on the way to work, Mr. Foster arrived at the suite on the second floor of the White House's West Wing where White House Counsel Bernard Nussbaum and Mr. Foster had offices. Three assistants (Mr. Nussbaum's assistants Betsy Pond and Linda Tripp and Mr. Foster's assistant Deborah Gorham) and an intern (Thomas Castleton) had desks in the outer office of the suite.


According to the testimony of a number of witnesses, Mr. Foster attended the morning Rose Garden ceremony announcing the nomination of Louis J. Freeh to be Director of the FBI. According to Ms. Tripp and Ms. Pond, at about 12:00 or 12:30 p.m.. Mr. Foster asked them for lunch from the White House mess.[26]


[25] President and Mrs. Clinton had long-standing friendships with Mr. Foster. President Clinton and Mr. Foster knew each other as children in Hope, Arkansas; Mrs. Clinton and Mr. Foster were long-time colleagues at the Rose Law Firm in Little Rock.


[26] USPP Report, 7/22/93, at 1 (Pond interview); Tripp 302, 4/12/94, at 4.


As used in citations herein, the term "OIC" refers to a transcript of either an interview or a grand jury appearance by a witness. The term "302" is the traditional term used to refer to FBI interview reports and refers here to interview reports of investigators assigned to Mr. Fiske's Office or the OIC. For reports of interviews, the dates listed are those on which the interviews took place.


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After eating lunch in his office, Mr. Foster left the Counsel's suite. He was seen leaving his office by Ms. Tripp, Ms. Pond, and Mr. Castleton.[27] The OIC, like the other investigative bodies before us, has not learned of or located anyone who definitively[28] saw Mr. Foster from the time he left the White House until near 6:00 p.m., at the time a private citizen found Mr. Foster dead in Ft. Marcy Park.


B. Fort Marcy


Fort Marcy was constructed as a Civil War earthwork fortification. It is located between the George Washington Memorial Parkway (GW Parkway) and Chain Bridge Road in the Virginia suburbs of Washington, D.C., approximately 6.5 miles by car from downtown Washington. The GW Parkway, on which there is virtually constant automobile traffic, runs along the Virginia side of the Potomac River from Mount Vernon to the Capital Beltway. Several bridges connect the Parkway (or roads leading


[27] When he left, Mr. Foster reportedly said something to the effect that there were M&M's in his office and "So long" or "I'll be back." See USPP Report, 7/22/93, at 1 (Castleton interview); Castleton 302, 5/3/94, at 2; USPP report, 7/22/93, at 1 (Pond interview). As will be fully discussed below, Ms. Tripp and Ms. Pond said that Mr. Foster was not carrying a briefcase when he left the suite. Mr. Castleton stated that Mr. Foster was carrying a briefcase when he left.


[28] The one possible exception is a citizen who observed a car entering Fort Marcy Park in the mid-afternoon. His statements are described below.


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to the Parkway) to Washington. A parking lot for the park is adjacent to the outbound side of the GW Parkway.[29] Inside the park, as of July 1993, were two cannons -- one closer to the GW Parkway and a second (the one near which Mr. Foster was found) closer to Chain Bridge Road. That second cannon is approximately 200 yards from the parking area.[30]


Thirty-one witnesses, 19 of whom observed Mr. Foster's body, have provided relevant testimony about their activities and observations in and around the Fort Marcy Park area on July 20, 1993. They include:


6 private citizens (one of whom discovered and observed Mr. Foster's
body;[31]


13 Park Police personnel (9 of whom observed Mr. Foster's body);


11 Fairfax County Fire and Rescue Department (FCFRD) personnel
(8 of whom observed the body); and


Dr. Haut, the doctor representing the Medical Examiner's Office who
responded to the scene and examined the body.


Between about 2:45 and 3:05 p.m., a citizen (C1) driving


[29] A pedestrian can enter Fort Marcy Park from Chain Bridge Road, but a chain-link fence prevents vehicle entry and did so in July, 1993, according to information provided by the Park Service. OIC Doc. No. DC-229-1. Moreover, trees and thick vines are growing through the fence in a manner that reveals that the fence has been there for some years. OIC Investigators' Memorandum, 3/1/96, at 72.


[30] The trees, brush, and hills within the park were such that one would not walk in an absolutely straight line from the parking lot to the second cannon.


[31] For privacy reasons, the names of private citizens will not be included in this report.


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outbound on GW Parkway saw a "dark metallic grey, Japanese sedan occupied by a single, white male abruptly enter Fort Marcy Park.[32] C1 said in his initial 1993 statement to the Park Police that the license plate was from Ohio or Arkansas.[33] Months later, on April 18, 1994, during Mr. Fiske's investigation, C1 was shown photographs of Mr. Foster's car. C1 stated that the car in the photographs looked "similar" to the car that he recalled, but that the license plate on it differed from that which he recalled.[34]


Another citizen (C2) drove his rental car into the Fort Marcy parking lot at approximately 4:30 p.m. While there, C2 saw one unoccupied car, which he described as a "rust brown colored car with Arkansas license plates."[35] C2 also saw another nearby car; that car was occupied by a man who exited his car as C2 exited his own car.[36] C2 described this man as having "a look like he had a -- an agenda." although "everything I based my observation of this guy, was from my gut, more than anything else."[37] C2 and the man did not speak to one another.[38] C2


[32] USPP Report, 7/26/93 and 8/2/93, at 1 (C1 interviews). Mr. Foster's car was a gray Honda Accord, 4-door, with Arkansas license plates.


[33] Id.


[34] 302, 4/18/94, at 2.


[35] OIC, 11/1/95, at 22, 28.


[36] Id. at 25.


[37] Id. at 27, 62.


[38] Id. at 61-62.


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went into the park to urinate, and the other man had reentered his car by the time C2 returned to the parking lot.[39] C2 then left the park in his car.[40]


A man (C3) and a woman (C4) pulled in the Fort Marcy parking area in C4's white Nissan at about 5:00 p.m. and were still at Fort Marcy when police and rescue personnel arrived shortly after 6:00 p.m.[41] While C3 and C4 were at Fort Marcy, another citizen (C5) drove his white van into the parking lot to urinate. C5 said that he exited his van, and while walking through the park, found Mr. Foster's body near the second cannon, the cannon closer to Chain Bridge Road.[42] C5 then left Fort Marcy and drove approximately 2.75 miles further outbound on the GW Parkway to a parking area near GW Parkway Headquarters; there, C5 reported the dead body to two off-duty Park Service employees who called 911.[43] Numerous Park Police and FCFRD personnel then responded


[39] Id. at 38.


[40] Id. at 61-62.


[41] USPP Report, 7/20/93, at 1 (C3 and C4 interviews).


[42] OIC, 2/23/95, at 11, 22-33. The Fiske report referred to this man as CW.


C5, among other observations, said that certain vegetation in the area appeared trampled, id. at 28-29, although no one else reported such an observation, see e.g., Fornshill 302, 4/29/94, at 4.


[43] C5 OIC, 2/23/95, at 39 41-43. Records show that the 911 call was placed from a phone at that parking area. Investigators' 302, 4/29/94, at 1.


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to Fort Marcy Park.[44]


In the initial response, two groups of FCFRD personnel, as well as Park Police Officer Kevin Fornshill, arrived at Fort Marcy Park at approximately the same time -- about 6:10 p.m.[45] They split into teams to search the park. Officer Fornshill and FCFRD personnel George Gonzales and Todd Hall composed one group; FCFRD personnel Richard Arthur, James Iacone, Jennifer Wacha, and Ralph Pisani formed the other. The Fornshill-Hall-Gonzales group first reached the body of Mr. Foster, and the other group joined them soon thereafter.


Twelve additional Park Police personnel subsequently arrived at Fort Marcy Park. Officer Franz Ferstl was the responding beat officer and, as such, was responsible for preparing the incident report. He responded to the scene at the same time as Officer Julie Spetz. Sergeant Robert Edwards, the District supervisor, also arrived on the scene. Ferstl, Spetz, and Edwards arrived


[44] In the meantime, a woman (C6) had left her broken-down blue Mercedes, with hazard lights flashing, on the entrance road leading to the Fort Marcy parking area. She walked along GW Parkway to a nearby exit to obtain assistance (as there was no phone at Fort Marcy Park). C6 302, 4/11/94, at 1-2.


[45] Fairfax County records reflect that 911 was first called at 5:59:59 p.m. The Park Police dispatcher was notified at 6:02:16 p.m. The first FCFRD personnel (Pisani, Iacone, and Wacha in Engine 1) arrived at Fort Marcy Park at 6:09:58 p.m., and the second group (Gonzales, Hall, and Authur in Medic 1) arrived at 6:10:16 p.m. Officer Fornshill of the Park Police arrived at 6:11:50 p.m., according to Park Police records. Fairfax County records show that the FCFRD personnel indicated at 6:37 p.m. that they were available on radio, which means that they had completed their duties, although it does not mean they necessarily had departed Fort Marcy Park at that time. Arthur OIC, 1/5/95, at 72-76.


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before approximately 6:15 p.m., according to the report of Officer Christine Hodakievic, who arrived at approximately 6:15 p.m. and recorded the names of those officers already on the scene (Fornshill, Ferstl, Spetz, and Edwards). Lieutenant Patrick Gavin arrived in a supervisory role at roughly 6:30 p.m., according to his recollection.


According to their reports, Investigators Cheryl Braun and John Rolla, the lead Park Police investigators, arrived along with Investigator Renee Abt at about 6:35 p.m. They received investigative assistance from Officer Hodakievic, who was an investigator in training at that time. Peter Simonello, the Park Police identification technician responsible for gathering physical evidence, arrived shortly thereafter.[46]


At the scene, Park Police investigators and the Park Police identification technician conducted interviews, examined the body and Mr. Foster's car, made notes, took photographs, and collected evidence. Later, five of the Park Police personnel prepared typed reports: the responding beat officer (Ferstl), the two lead investigators (Rolla and Braun), Officer Hodakievic, and the identification technician (Simonello). Several evidence receipts were prepared to record physical evidence obtained at the scene.


When the Park Police and rescue personnel found Mr. Foster's body, he was lying on his back on a berm in front of the second


[46] Officer William Watson and an intern later came to provide any needed assistance, as did Lieutenant Ronald Schmidt.


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cannon, the cannon nearer Chain Bridge Road.[47] He was dead and had a gun in his right hand[48] (with his thumb trapped in the


[47] See FCFRD Report (Gonzales) at 1-2 ("We came across the first cannon. I searched around this area and found nothing. We searched further to the next cannon and found a dead male [with] suit pants and dress shirt."); USPP Report (Ferstl) at 1 ("Ofc. Fornshill advised that he located the body just north of the second cannon."); USPP Report (Rolla) at 1 ("decedent was located...at the second cannon"); see also C5 302, 4/14/94, at 3 (referring to body's location at second cannon); Arthur OIC, 1/5/95, at 40 (same); Braun 302, 4/28/94, at 2 (same); Fornshill Senate Deposition, 7/12/94, at 15-16 (same); Gavin OIC, 2/23/95, at 12 (same; "last cannon"); Hall OIC, 1/5/95, at 18-19 (same); Hodakievic 302, 5/2/94, at 1 (same); Simonello 302, 4/28/94, at 1 (same); Wacha OIC, 1/10/95, at 32 (same). Walk-throughs conducted at the scene by investigative personnel with the witnesses confirmed this location within the park. In addition, two reporters and Park Police officers separately visited the scene on July 21 and 22, 1993, and identified the spot where the body had been located by the blood in the ground near the second cannon. Reporter 302, 4/18/96, at 1; Hill 302, 3/1/95, at 3.


Two botanist from the Department of Agriculture examined both the scene and the photographs that had been taken at the scene on July 20. They said that the plants depicted in the photographs were consistent with those observed during their examination of the second cannon area. 302, 6/2/95, at 1.


[48] Both Hall and Gonzales observed the gun in the right hand. See Hall OIC, 1/5/95, at 30-31; Hall Senate Deposition, 7/20/94, at 10; Gonzales 302, 4/27/94, at 3; Gonzales 302, 5/15/96, at 2. According to Officer Fornshill, as Hall was examining the body, Hall said words to the effect that "we've got a gun here" and pointed in the general direction of the decedent's right hand. Fornshill 302, 4/29/94, at 3; Senate Deposition, 7/12/94, at 21; OIC, 1/11/95, at 93, 114. Fornshill did not see the gun, however. 302, 4/29/94, at 3; OIC, 1/11/95, at 79. He said that he could not see the gun either because of his position or the vegetation around the hand. 302, 4/29/94, at 3; Senate Deposition, 7/12/94, at 21; OIC, 1/11/95, at 114. As to why he did not move into position to confirm the existence of the gun, Fornshill said, "I'm not the investigator. I let the investigator do that. I'm maintaining the scene. If there's a gun at the scene, I'm making sure nobody touches the gun, I'm making sure nobody disturbs the gun...If the EMT [emergency medical technician] tells me there's a gun there then I'll go with that." OIC, 1/11/95, at 125.


C5, when he earlier observed the body, did not see a gun in Mr. Foster's hand. 302, 4/14/94, at 4. The issue raised by C5's statement is discussed further below.


Mr. Foster was right-handed. See, e.g., Beryl Anthony 302, 4/11/95, at 1; Sheila Anthony 302, 4/11/95, at 1; Lisa Foster 302, 4/7/95, at 1; Foster Younger Son 302, 4/7/95, at 3; Foster Older Son 302, 4/7/95, at 5; Foster Daughter 302, 4/7/95, at 4.


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trigger guard). Gunshot residue like material was observed on his right hand.[49] When the Park Police lifted and turned over the body later that evening, they noted a wound out the back of his head,[50] and blood on the ground underneath his head and back.[51] They observed no signs of a struggle.[52]


Park Police also found a gray, 4-door Honda Accord with Arkansas plates in the parking lot; that car, the police discovered later that evening, was registered to Mr. Foster.[53] The two lead Park Police investigators (Braun and Rolla) photographed and examined the car and, during examination, found Mr. Foster's White House identification.[54] The car was


[49] See Rolla 302, 2/7/95, at 3; USPP Report (Simonello) at 1. The residue is apparent in Polaroid photographs taken at the scene.


[50] Rolla OIC, 2/9/95, at 28-29; Hodakievic OIC, 2/14/95, at 15.


[51] This issue will be discussed further below.


[52] Fornshill 302, 4/29/94, at 4; Ferstl 302, 5/2/94, at 2; Rolla Senate Deposition, 7/21/94, at 99; Simonello 302, 2/7/95, at 3.


[53] USPP Report (Rolla) at 1.


[54] See Report (Braun) at 2; Braun 302, 4/28/94, at 3; USPP Report (Rolla) at 2. Lieutenant Gavin said he was notified by the investigators at about 8:00 p.m. that the decedent was a White House employee. Gavin OIC, 2/23/95, at 24. Gavin subsequently notified an officer of the Uniformed Division of the Secret Service, Lieutenant Woltz. Id. at 25. To Lieutenant Gavin's knowledge, he was the first person to notify anyone at the White House or the Secret Service about Mr. Foster's death. Id. at 26-27. According to a Secret Service memorandum prepared at 10:01 p.m. on July 20, the Secret Service was notified of Mr. Foster'ó death at 8:30 p.m. when Lieutenant Woltz was contacted by Lieutenant Gavin. OIC Doc. No. DC-211-147.


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towed to a Park Police impoundment lot that night.[55] The next day, the car was further photographed and examined at the impoundment lot.[56]


Dr. Haut, the medical examiner's representative, arrived at Fort Marcy Park at approximately 7:40 p.m. on July 20 and confirmed the death.[57] The body was then transported by FCFRD ambulance personnel to a morgue at Fairfax Hospital in Fairfax,


[55] Raley's Towing Receipt, Case No. 30502; USPP Impounded Car Record, Case No. 30502.


[56] USPP Report (Smith) at 1. Photographs were taken at the impound lot of the interior of the trunk of the car. Those photographs show stray papers, moccasin-type shoes, a book, cassette tapes, and the like (no evidence that a body had been in trunk).


[57] Officer Hodakievic's report and Technician Simonello's report indicate that Dr. Haut arrived at 7:40 p.m. USPP Report (Hodakievic) at 1; USPP Report (Simonello) at 1. Investigator Abt's contemporaneous notes place Dr. Haut's arrival at 7:43 p.m. Although Dr. Haut subsequently recalled arriving at an earlier time, see 302, 4/14/94, at 1 (6:45 p.m.); OIC 2/16/95, at 8, of his arrival. Dr. Haut did not contemporaneously record the time of his arrival. The several contemporaneously prepared notes and reports of the Park Police officers are likely more accurate.


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 a "38 caliber handgun." Id. It states that the manner of death was "suicide." Id. Dr. Haut signed the death certificate. It states that the cause of death was "perforating gunshot wound mouth - head" and that the manner of death was "suicide" by "self-inflicted gunshot wound mouth to head."


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Virginia.[58]


The witnesses' recollections of precise details at Fort Marcy Park vary in some respects (the differences will be explored below). Nonetheless, the evidence from the scene -- including the gun, the apparent residue, the nature of the wound, the blood, the lack of any signs of struggle -- points to the conclusion that death resulted from suicide by gunshot. A final determination of the manner of death depends on a variety of further investigative steps -- most importantly, those associated with forensic science.


V. FORENSIC ANALYSES


The forensic analyses, in conjunction with the evidence from the scene, confirm that Mr. Foster committed suicide in Fort Marcy Park.


A. Autopsy


The autopsy occurred on July 21, 1993, in the presence of six persons. Dr. James Beyer, Deputy Chief Medical Examiner, conducted the autopsy, aided by an assistant. Park Police Sergeant Robert Rule and Officer James Morrissette observed the autopsy.[59] Park


[58] The body arrived at the hospital at approximately 8:30 p.m., according to logs of the FCFRD. Hospital and morgue logs show that Dr. Julian Orenstein viewed the body at the hospital in the ambulance at 8:49 p.m., and that the body was received at the morgue at 9:00 p.m. OIC Doc. No. DC-108-12 to DC-108-16.


[59] Officer Morrissette's report on the autopsy states: "After briefing him with the available information surrounding the crime scene and the victim he started the autopsy on the victim." USPP Report (Morrissette) at 1.


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Police Identification Technicians Hill and Johnson took photographs at the autopsy and collected evidence such as clothing, blood samples, and hair samples. Dr. Beyer prepared an autopsy report. He has supplemented the report with testimony on several occasions.


Dr. Beyer has over 20,000 autopsies.[60] His responsibility is to determine cause of death and, in the case of a gunshot wound, to determine with the police the manner of death -- suicide, homicide, accident, or undetermined.[61]


Dr. Beyer said Dr. Haut contacted him early on July 21, 1993, to advise him of Mr. Foster's death.[62] Dr. Beyer recalled that Dr. Haut indicated that there was a perforating gunshot wound (that is, a gunshot wound with an entrance and an exit) and that the Park Police was the investigating agency.[63]


Dr. Beyer recalled that when he opened the body bag, there was blood on the right side of the face and on the right shoulder of the shirt.[64] Dr. Beyer found a large amount of blood in the body bag.[65]


The autopsy report states that Mr. Foster's height was 6


[60] Beyer OIC, 2/16/95, at 4.


[61] Id. at 5.


[62] Id. at 8.


[63] Id. at 9. Dr. Beyer had no conversations with members of the White House, the Foster family, or Foster family attorneys in connection with the autopsy. Id. at 6.


[64] Id. at 10-11.


[65] Lee Report at 495.


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feet and 4 1/2 inches and his weight was 197 pounds. The report indicates no problems or abnormalities with the cardiovascular system, respiratory system, liver, gall bladder, spleen, pancreas, adrenal and thyroid glands, gastrointestinal tract, genitourinary tract, kidneys, urinary bladder, or genitalia. The report states that the "[s]tomach contains a considerable amount of digested food material whose components cannot be identified."[66]


As to the head, the report indicates:


Perforating gunshot wound mouth-head; entrance wound is in the posterior
oropharynx at a point approximately 7 1/2" inches from the top of the head;
there is also a defect in the tissues of the soft palate and some of these
fragments contain probable 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 and skull defect near the midline in
the occipital region. No metallic fragments recovered.


The report contains a diagram of the head and brain area that depicts the entrance wound and the fracture line. A separate diagram depicts the fracture lines, exit, and skull damage. A third page of diagrams of the head area states "perforating gunshot wound" and describes the entrance wound as follows: "Entrance -- mouth -- posterior oropharynx -- large defect -- soft palate defect / powder debris identified." It describes the


[66] Officer Morrissette's report also indicates that Dr. Beyer stated at the autopsy "that it appeared that the victim had eaten a 'large' meal which he [Dr. Beyer] believed to have occurred within 2-3 hours prior to death." USPP Report (Morrissette) at 1. An exact time of death has not been established.


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exit wound as a wound of 1 1/4" x 1". The report indicates "backward" and "upward" as the direction of the bullet through the head.[67]


With respect to the wound, Dr. Beyer stated: "The entrance wound was in the back of the mouth, what we call the posterior orpharynx, where a large defect was present. There was also a soft palate tissue defect, and power debris could be identified in the area of the soft palate and the back of the mouth. The exit wound is depicted (in the autopsy report) as being present three inches from the top of the head, approximately one and one-quarter inch by one inch."[68] There was "good alignment" between the entrance and exit wounds, and there was "no reason to think that this was not an entrance and exit defect configuration."[69] As the report indicates, Dr. Beyer did not recover any bullets or fragments from the body.[70]


[67] Officer Morrissette's report similarly indicates that "[t]he cause of death was determined to be 'perforated gunshot wound in and out.' The point of entry was in the back of the mouth with the exit in the back of the head." Id.


[68] OIC, 2/16/95, at 19.


[69] Id. at 20.


[70] Id. at 16. The lack of a bullet or bullet fragments was confirmed by others who attended the autopsy. Dr. Beyer's assistant confirmed that Dr. Beyer inserted a probe through the path of the bullet before the skull was opened and commented that the path was clear. (Autopsy photographs clearly depict the wound and the probe through the wound path.) The assistant recalled that after the brain was removed and visually inspected, Dr. Beyer dissected it with cuts of approximately one-eighth inch thickness, and that no bullet fragments were located in the brain. 302, 9/11/95, at 2-3. According to Morrissette's report, Dr. Beyer stated that the bullet trajectory was 'upward and backward' exiting in the center line of the back of the head." USPP Report (Morrissette) at 1. Officer Johnson recalled the examination of the wound path and said that no projectile or bullet fragment was recovered. Johnson recalled that Dr. Beyer may have mentioned it was a clean wound, meaning that it was a through-and-through shot. 302, 2/2/95, at 2. Sergeant Rule similarly recalled being present when the skull was opened and the wound track examined; no projectile or fragments were recovered. 302, 2/3/95, at 2. Technician Hill recalled that a trajectory rod was inserted in the wound track and that no bullet or bullet fragment was recovered. 302, 3/1/95, at 1-2.


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The report states that "[s]ections of the soft palate" were "positive for powder debris," and Dr. Beyer said that the gunpowder debris in the mouth was "grossly present," meaning that it could be seen with the naked eye, and was present in a large amount."[71] Thus, Dr. Beyer stated that "the obvious finding was that the muzzle of the weapon had to be in his mouth, close to the back of his throat, back of his mouth.."[72]


Dr. Beyer said that he performed "an external examination of the body, with photography of the body. We then examine the body for any identifying marks, such as scars, tatoo or wounds."[73] Dr. Beyer stated that he recalls observing powder debris on the right hand.[74] He recalled gunpowder debris on the left hand to


[71] OIC, 2/16/95, at 20, 22.


[72] Id. at 22.


[73] Id. at 12.


[74] Id. at 16. Officer Morrissette's report states that Dr. Beyer "pointed out what he thought to be gunpowder residue on the right hand forefinger of the victim. I supplied him with a picture of the crime scene in which the suspected residue was evident." USPP Report (Morrissette) at 1. Officer Johnson also recalled black marks on the right hand. 302, 2/2/95, at 2. Technician Hill recalled apparent gunshot residue on Mr. Foster's hand. 302, 3/1/95, at 2. Sergeant Rule recalled apparent gunshot residue on Mr. Foster's right hand. 302, 2/3/95, at 2.


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to a much lesser degree.[75] (The diagrams in the autopsy report indicate "black material" on both the right hand and the left hand.) Br. Beyer also recalled a "tannish brown indentation" across the back of the right thumb (the thumb which had been in the trigger guard).[76]


Dr. Beyer said that observation of Mr. Foster's body revealed no wounds on the neck, hands, buttocks, shoulder, back, or any portion of the body other than the head; he said, moreover, that any such wounds would have been registered on the anatomic diagram.[77] Dr. Beyer stated that "[t]here was no


[75] OIC. 2/16/95, at 16.


[76] Id. Semen was found on Mr. Foster's shorts by the FBI Laboratory. FBI Lab Report, 5/9/94, at 10. Involuntary urination and secretion of seminal fluid often occur upon death. Berman Report at 15; Hirsch OIC, 2/16/95, at 46; Beyer OIC, 2/16/95, at 15; OIC Memorandum (Blackbourne).


[77] OIC, 2/16/95, at 12-13. The lack of other wounds was confirmed by others at the autopsy. Dr. Beyer's assistant, for example, said he did not see any other wounds on Mr. Foster's body. 302, 9/11/95, at 3. Officer Johnson stated that he did not observe any trauma or other marks on the body other than the gunshot wound to the mouth and skull. 302, 2/2/95, at 2. Sergeant Rule stated that he did not observe or hear mention of any trauma to Mr. Foster other than the bullet wound to the mouth and skull. 302, 2/3/95, at 2. Technician Hill recalled the damage to the rear of the skull as the only trauma she observed. 302, 3/1/95, at 2. Officer Morrissette stated that he relied on Dr. Beyer's observations and descriptions at the autopsy and that he recalled that neither Dr. Beyer nor anyone else making any mention of other wounds or trauma. 302, 2/10/95, at 3.


An interview report of George Gonzales, one of the FCFRD personnel on the scene at Fort Marcy Park, stated that Gonzales believed he had seen a wound in the upper-right-front portion of the skull. 302, 2/23/94, at 2. In another interview, Gonzales stated that that report does not reflect "what [he] recalls or what he intended to report." 302, 5/15/96, at 3. Another of the FCFRD personnel, Richard Arthur, initially said he saw that appeared to be a bullet wound on the neck. OIC, 1/5/95, at 63. After examining autopsy photos, which he said were taken from a better angle and a better view, he said he may have been mistaken about such a wound. 302, 4/24/96, at 1.


The initial statements of Gonzales and Arthur were explored during the Senate's inquiry into Mr. Foster's death, the probe by Mr. Clinger, and the Fiske investigation. Those investigations included examination of the scene and autopsy photographs and concluded that the only wound to Mr. Foster was the gunshot wound through the back of his mouth and out the back of his head. See e.g., Fiske Report at 33 n.* ("The autopsy results, the photographs taken at the scene, and the observations made by Park Police investigators conclusively show that there were no such wounds" as those recalled by Gonzales and Aruthur.). OIC experts and investigators carefully reviewed the evidence and reached that same conclusion, as will be discussed further below.


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evidence of any trauma to the individual other than the gunshot wound."[78]


Dr. Beyer concluded that this was a self-inflicted wound[79] based on the fact that there was no evidence of any trauma other than the gunshot wound, and "no evidence of any central nervous system depression or diseases state that would have permitted, in my estimation, somebody to walk up and put a gun in his mouth and pull the trigger."[80]


Dr. Beyer's conclusions were reviewed by two sets of experts, one set retained by the OIC and the other by Mr. Fiske's Office. Their analyses of Dr. Beyer's findings and of the relevant laboratory analyses are outlined below. They confirm the conclusions reached at the autopsy.


[78] OIC, 2/16/95, at 26.


[79] Id. at 23.


[80] Id. at 26.


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B. Laboratory Analyses


A number of photographs were taken at Fort Marcy Park and at the autopsy.[81] In addition, at both the scene and the autopsy, the Park Police obtained physical evidence. Evidence receipts show that, at the Fort Marcy scene, the Park Police obtained physical evidence and clothing, including the following:


* Colt Army Special .38 caliber revolver, 4", 6 shot (obtained from
"right hand of victim")


* round .38 caliber RP 38 SPL HV (from "revolver")


* casing .38 caliber RP 38 SPL HV (from "revolver")


* eyeglasses (from berm)


* Seiko quartz wrist watch (from "Deceased left wrist")


* pager (from "Deceased right side waist area")


* silver colored ring (from "Deceased right ring finger")


* gold colored band type ring (from "Deceased left ring finger")


* black suit jacket (from"front passenger seat of gray Honda")


* blue silk tie with swans (from "under coat on front passenger seat")


* White House Identification (from "under coat on front passenger
seat")


* brown leather wallet (from "inside suit jacket pocket of suit jacket
from front of passenger seat")


[81] The issue of photographs taken at Fort Marcy is discussed further below.


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At the autopsy, the Park Police obtained physical evidence and clothing, including the following:


* one vial of blood


* lock seal envelope containing pulled head hairs


* white colored long sleeve button down shirt with blood stain


* white colored short sleeve t-shirt with blood stain


* pair white colored boxer shorts


* pair blue gray colored pants with black colored belt


* pair black colored socks


* pair black colored dress shoes, size 11M


The Park Police and Medical Examiner's Office caused several laboratory tests of the evidence to be performed during the initial 1993 investigation. In addition, Mr. Fiske's Office and the OIC submitted physical evidence collected during the investigation of Mr. Foster's death to the FBI laboratory, which has produced reports analyzing physical evidence. The OIC also submitted physical evidence to Dr. Lee, and he, too, produced a report based on his laboratory analyses. The following summarizes the relevant laboratory analyses:


1. Gun


a. Operation


The .38 caliber revolver recovered from Mr. Foster's hand at Fort Marcy Park had a four-inch barrel and a capacity of six shots.[82] It had one live round and one spent casing.[83] Had the


[82] USPP Evidence/Property Control Receipt (Simonello) at 1.


[83] Id.


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trigger been pulled again, the next shot would have fired the remaining round.[84]


In August 1993, at the request of the Park Police, the Bureau of Alcohol, Tobacco and Firearms (ATF) Laboratory examined the revolver and found that it functioned. The ATF Laboratory determined that the cartridge case found in the cylinder under the hammer was fired in that gun.[85] The FBI Laboratory also test-fired the gun and determined that it "functioned normally" and that the trigger pulls were normal.[86] The .38 caliber cartridge case "was identified as having been fired in the...revolver."[87] Like the expended cartridge, the unexpended cartridge was .38 caliber manufactured by Remington. They bore similar headstamps.[88] Dr. Lee also test-fired the revolver and found that it was operable.[89]


b. Serial Numbers


An ATF report on the gun's two serial numbers revealed a purchase at the Seattle Hardware Company in Seattle, Washington, on September, 14, 1913, and at the Gus Habich Company in


[84] OIC Investigators' Memorandum, 6/22/95, at 2.


[85] ATF Lab Report, 8/17/93, at 1.


[86] FBI Lab Report, 5/9/94, at 6.


[87] Id.


[88] Id.


[89] Lee Report at 451-54.


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Indianapolis, Indiana, on December 29, 1913.[90] The gun could not be further traced.[91] Laboratory examination of the gun


found no indication of any alteration of the serial number of the weapon....
the additional serial number on the crane of the firearm most likely occurred
at some time when the eighty year-old weapon was repaired. There is no
realistic way to determine when such a repair occurred. The exchange of
the two numbers between the frame and the crane is a condition noted on
many similar firearms in the Laboratory's Reference Firearms Collection
and is not considered significant.[92]


c. Ammunition


Dr. Lee noted that the ammunition found in this weapon was type "RP .38 SPL HV," manufactured by Remington Peters. Dr. Lee stated that information from the manufacturer indicate that this ammunition was discontinued in 1975, and that the cartridge therefore would have been manufactured prior to that time.[93]


d. DNA


DNA consistent with Mr. Foster's DNA was detected on the muzzle portion of the barrel of the revolver. In particular, DNA type alpha 3, 4 was detected on the gun and in Mr. Foster's blood.[94]


[90] ATF Report of Firearms Tracing, National Tracing Center.


[91] Id.


[92] FBI Lab Report, 6/21/94, at 1.


[93] Lee Report at 488-89. That finding is consistent with the fact that, as is explained below, the gun at one time likely was located in the home of Mr. Foster's parents in Hope, Arkansas.


[94] FBI Lab Report, 5/9/94, at 10.


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e. Blood


The gun was recovered at the scene by Park Police Technician Simonello and subsequently packaged in brown paper for storage in an evidence locker.[95] While the Park Police's subsequent examinations for fingerprints and other evidence could have removed some trace evidence that might have existed on the gun, Dr. Lee examined the gun and reported that "[s]mall specks of brownish-colored deposits were noted."[96] Dr. Lee found that "[s]ome of these deposits gave positive results with a chemical test for blood" although the "quantity of sample present was insufficient for further analysis."[97]


Dr. Lee also reported that "[m]acroscopic and microscopic examination of [the] piece of paper" originally wrapped around the barrel of the revolver for evidence storage "revealed the presence of reddish-colored particles. These stains also gave positive results with a chemical test for blood."[98] Dr. Lee stated that "[t]his fact suggests that the barrel of the weapon was in contact or at close range to a source of liquid blood."[99]


Dr. Lee further stated that "[b]lood spatters and tissue-like materials were noted on the fingerprint lift tape from the


[95] USPP Report (Simonello) at 1 ("I then wrapped the barrel in brown paper"); USPP Report (Smith) at 1.


[96] Lee Report at 286.


[97] Id.


[98] Id. at 488.


[99] Id.


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weapon."[100] He reported that "[c]hemical tests for blood were positive with some of these materials."[101] Dr. Lee concluded that "[t]he presence of blood and tissue-like materials on the lifts is another strong indication that this weapon was fired while in contact or close to a blood source."[102]


f. Fingerprints


Identification Technician E.J. Smith of the Park Police examined the gun for latent fingerprints[103] on July 23, 1993. The results were negative.[104] The FBI Laboratory later examined the gun and similarly detected no latent prints on the exterior surface of the weapon.[105]


In his report to the OIC, Dr. Lee explained that "[t]he handle grip area of [the .38 Colt revolver] is textured and is not typical of the type of surface which commonly results in development of identifiable latent fingerprints."[106] He also


[100] Id.


[101] Id.


[102] Id.


[103] Fingerprint examiners can perform fingerprint identification when they obtain a sufficient number of ridge details to allow an identification. See generally Physical Evidence at 172 (Lee ed.).


[104] USPP Report (Smith) at 1. Identification Technician Simonello noted in his report of July 29, 1993, that "[o]n Sunday July 25, 1993, I was advised by Tech. S. Hill that item #1 had been processed for latent prints by Tech. E.J. Smith and that the results were negative." USPP Report (Simonello) at 1.


[105] FBI Lab Report, 6/9/94, at 2.


[106] Lee Report at 487.


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noted that the fingerprint powder method was used when the Park Police initially tested the gun; "[a]lthough the fingerprint method is one of the most common techniques used in the latent print field, there are also newer technologies such as cyanoacrylate fuming, laser, and forensic lighting techniques which could have been used in this case. It is unknown at this time whether these techniques would have provided additional information" had they initially been employed.[107]


The FBI Laboratory also noted that a lack of fingerprints is not extraordinary and that "[g]enerally, the determining factors in leaving latent prints are having a transferrable substance, i.e., sweat, sebaceous oil or other substance on the fingers, and having a surface that is receptive to receiving the substance that forms the latent prints. A clean, smooth, flat surface is most receptive for transfer of any substance from the fingers,"[108] and the surface of the grip handle here was textured, not smooth.


[107] Id. at 487-88.


[108] FBI Lab Report, 6/9/94, at 2. The FBI Laboratory, during its examinations, found one latent fingerprint on the underside of the pistol grip (that is, not on an exterior surface of the gun). FBI Lab Report, 7/19/95, at 1. This print has been compared to prints of Mr. Foster and of evidence technicians who initially handled the gun, but no identifications were effected. FBI Lab Report, 12/13/95, at 1; FBI Lab Report, 8/14/95, at 1. This print would have been left by someone who assembled or disassembled the gun, for example, to repair it or to put on new grips or for some other reason.


41
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g. Marks on Body from Gunshot and Gun


(1) Gunshot Residue on Hands


The photographs of Mr. Foster's right hand taken at Fort Marcy Park and during the autopsy depict black gunshot residue-like material on the right forefinger and the area between the thumb and forefinger. The autopsy report also noted material on the forefinger area of the left hand.


During the Park Police investigation, the ATF Laboratory found that gunshot residue patterns reproduced in the laboratory were consistent with those seen in the photographs taken by the Park Police at the scene.[109] The FBI Laboratory similarly stated that gunshot residue on the right forefinger area of the right hand is "consistent with the disposition of smoke from muzzle blast or cylinder blast when the...revolver is fired using ammunition like that represented by" the cartridge casing recovered from the gun "when this area of the right hand is positioned near the front of the cylinder or to the side of and near the muzzle."[110]


Dr. Lee conducted firings using a laboratory standard weapon and the same kind of ammunition that was found in the revolver recovered from Mr. Foster's hand. With the standard weapon, little or no observable gunpowder particles were released from the cylinder area or onto the shooter's hand.[111] However,


[109] ATF Lab Report, 8/17/93, at 1.


[110] FBI Lab Report, 5/9/94, at 7.


[111] Lee Report at 489.


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Dr. Lee reported that each test-fired shot of the revolver found in Mr. Foster's hand at Fort Marcy Park produced a significant amount of unburned and partially burned gunpowder.[112] Relatedly, Dr. Lee reported that the gun had an "extraordinary front cylinder gap"[113] (the space between the cylinder and the barrel) of .01 inch through which gunpowder residue is expelled when the gun is fired. Dr. Lee stated that the gap was one "possible cause [] of the deposit of a large amount of gunshot residue on Mr. Foster's body and clothing."[114]


(2) Indentation on Thumb


The revolver was recovered from Mr. Foster's right hand at the scene at Fort Marcy Park by Park Police Technician Simonello. Technician Simonello reported that Mr. Foster's thumb was trapped in the trigger guard of the gun.[115] Consistent with Technician Simonello's observation, the autopsy photographs depict an indentation mark on the inside of the right thumb.


The mark on the inside of the right thumb which is visible in the
[autopsy] photograph is consistent with a mark produced by
the trigger of the...revolver when this portion of the right thumb
is wedged between the front of the trigger and the inside of the
front of the trigger guard of the revolver when the trigger rebounds
(moves forward). The trigger of the...revolver automatically
rebounds when released


[112] Id.


[113] Id. at 487.


[114] Id.


[115] USPP Report (Simonello) at 1. ("The right thumb was trapped between the trigger and inside front edge of the trigger guard.") Thus, Technician Simonello indicated that the revolver could not be easily removed. 302, 2/7/95, at 3.


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after firing (single or double action) or whenever the trigger is
released after it is moved to the rear. This mark is consistent
with the position of the thumb of the victim in the trigger guard
of the revolver in [three Polaroid] photographs.[116]


h. Summary: Gun


Dr. Lee concluded, "[b]ased on laboratory observations and the examination of the scene photographs," that "the revolver...is consistent with the weapon which resulted in the death of Mr. Vincent Foster. The barrel of this weapon was likely in Mr. Foster's mouth at the time the weapon was discharged. Gunshot residue noted on Mr. Foster's right hand and the lesser amounts of deposits on his left hand indicated that Mr. Foster held in the weapon when it was fired.[117]


2. Clothing


At the autopsy, clothing was removed from Mr. Foster's body and placed on a table in the autopsy room.[118] Park Police Officer Johnson took this clothing and placed it in a single bag for return to the Park Police offices.[119] There, brown wrapping


[116] FBI Lab Report, 5/9/94, at 7.


[117] Lee Report at 488.


[118] Johnson 302, 2/2/95, at 2. As noted above, this clothing consisted of the shirt, t-shirt, pants, belt, boxer shorts, shoes, and socks.


[119] Id. Because the clothing was packaged together before trace evidence was collected, specific trace evidence (in particular, that which is more readily transferred) cannot be conclusively linked to particular items of clothing that Mr. Foster was wearing at the time of his death. To obtain precise trace evidence analyses, each item must be kept separate before trace evidence is collected. See Crime Scene Investigations at 89 (Lee ed., 1994) ("The collection and preservation of physical evidence is the most important building block available to the crime scene investigator...Each type of physical evidence has unique properties and must be collected and preserved carefully to avoid contamination.")


44
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paper was laid on the floor of a photography room and the clothes were placed on that paper.[120] The clothes were left to dry in the photography room until Monday, July 26, when Technician Simonello packaged the clothing and put it into an evidence locker.[121]


The FBI Laboratory and Dr. Lee independently examined the clothing, examined debris collected by the FBI Laboratory during the 1994 investigation conducted by Mr. Fiske's Office, studied the photographs taken at the scene and autopsy, and reported a number of findings related to the clothing.


a. Gunshot Residue


Dr. Lee, in his examinations, reported "[s]mall deposits of gunpowder residue and partially burned gunpowder particles" on the shirt.[122] Earlier FBI Laboratory examination of the shirt resulted in a positive reaction for vaporized lead and very fine particulate lead on the front of the shirt. "This type of reaction is consistent with the type of reaction expected when a firearm is discharged in close proximity to this portion of the shirt. It is consistent with muzzle blast or cylinder blast from a revolver like the [submitted] revolver using ammunition like" the cartridge and cartridge case submitted with the gun.[123] The


[120] Id. at 2-3.


[121] USSP Report (Simonello) at 1.


[122] Lee Report at 490.


[123] FBI Lab Report, 5/9/94, at 6.


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FBI Laboratory further stated that


[s]ubsequent chemical processing of the...shirt in the Laboratory revealed
lead residues in a small area near the sixth button from the collar on the
front of the...shirt. This reaction could have been caused by contact with
a source of lead residues. Lead residues were also detected on the
underside of the edge of the collar on the left side of the...shirt. This small
area of lead residues could have been caused by the discharge of a
firearm consistent with the positive reaction noted above when the
[submitted] shirt was received in the laboratory.[124]


The FBI Laboratory reported that these gunshot residues "are consistent with the cylinder blast or the muzzle blast" which would be produced if the revolver was fired "in close proximity to the front of th[is] shirt."[125]


Similarly, when the ATF Laboratory, at the request of the Park Police, tested Mr. Foster's shirt, it found "a positive reaction consistent with the discharge of a revolver in close proximity to the upper front of his shirt."[126]


b. Bloodstain Patterns as Depicted in Photographs From Scene


The FBI Laboratory examined the bloodstain patterns depicted in the Polaroids taken at the scene. The Laboratory Report


[124] Id.


[125] FBI Lab Report, 6/13/94, at 2. In debris collected from the clothing, the FBI Laboratory found approximately 20 gunpowder particles that were similar to the gunpowder in the fired cartridge case of the gun found in Mr. Foster's hand, and two that were not. The Laboratory stated that one of the two dissimilar particles was "not consistent with having originated from a fired cartridge" and the other one was found "on a piece of paper used to dry Foster's clothes." Id. at 3. From these facts, the Laboratory stated that these two particles are "not likely associated with this investigation." Id.


[126] ATF Lab Report, 8/17/93, at 2.


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stated:


Photographs of the victim at the incident scene depict apparent
blood stains on his face and the right shoulder of his dress shirt. The
staining on the shirt covers the top of the shoulder from the neck to the
top of the arm and consists of saturating stains typical of having been
caused by a flow of blood onto or soaking into the fabric. The stains on
his face take the form of two drain tracks and one larger contact stain...


The contact stain on the right cheek and jaw of the victim is
typical of having been caused by a blotting action, such as would
happen if a blood soaked object was brought in contact with the side of
his face and taken away, leaving the observed pattern behind. The
closest blood-bearing object which could have caused this staining is the
right shoulder of the victim's shirt. The quantity, configuration and
distribution of the blood on the shirt and the right cheek and jaw of the
victim are consistent with the jaw being in contact with the shoulder of
the shirt at some time.[127]


Dr. Lee also examined the photographs taken at Fort Marcy Park. He noted that the photographs of the shirt show several areas of bloodstains, including "saturated-type bloodstains" on the "shoulder and collar region."[128]


On a separate bloodstain issue, Dr. Lee examined the photographs and reported that "[h]igh velocity impact type blood spatters were observed on Mr. Foster's face, hands, and shirt."[129] Dr. Lee stated that "[t]his type of blood spatter typically is produced when a weapon is discharged and


[127] FBI Lab Report, 5/9/94, at 9.


[128] Lee Report at 494. The FBI Laboratory determined that blood on the shirt and t-shirt was consistent with Mr. Foster's blood type. FBI Lab Report, 5/9/94, at 10


[129] Lee report at 495.


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the spatters result from the backspatter of the gunshot wound."[130] Dr. Lee reported that "[t]hese blood spatters are intact and no signs of alteration or smudging were observed.[131] This finding is in conflict with any theory that the fatal shot was fired elsewhere and the head wrapped during movement or cleaned upon arrival -- because those actions likely would have altered, smudged, or eliminated the blood spatters, contrary to what Dr. Lee found.[132]


c. Blood Drainage After Movement from Fort Marcy Park
and Bloodstains on Clothing at Autopsy


Dr. Lee noted that Dr. Beyer had "observed a large amount of liquid blood in the body bag and in Mr. Foster's body," which "further indicates that the location where the body was found is consistent with the primary scene [and that it] is, therefore, unlikely that Mr. Foster's body was moved to the Fort Marcy Park scene from another location."[133]


The shirt itself, which was removed at the autopsy after movement of the body to the morgue, contains bloodstains on areas where blood does not appear in the photographs of the body at the


[130] Id.


[131] Id.


[132] OIC Investigators' Memorandum (Lee). In addition, Dr. Lee examined the shoes and found "[n]o heavy bloodstains or dripping type bloodstain patterns," Lee Report at 492, contrary to what might have been found had the body somehow been moved in an upright position. OIC Investigators' Memorandum (Lee).


[133] Lee Report at 495.


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scene.[134] Dr. Lee state that these stains on the shirt "most likely occurred when the body was placed in the body bag and moved from the scene and/or when in the body bag, prior to the collection of the decedent's clothing.[135] As noted below, the experts concluded that the shirt likely would have been more extensively stained when the body was found at the second cannon area at Fort Marcy Park had the body been moved from another location.


d. Mineral/Vegetative Material


Dr. Lee reported that examination of a of a photograph of Mr. Foster's shoes taken by the FBI Laboratory at the time of its initial examination revealed brownish smears on the left heel.[136] Dr. Lee further stated that his own macroscopic and microscopic examinations of the shoes revealed the presence of soil-like debris.[137] (The FBI Laboratory photo of the shoes, taken in 1994 at the time of the Laboratory's examination of the


[134] Id. at 490, 494.


[135] Id. at 490. As to the pants, which also were removed after the body was moved in the body bag to the morgue, "[m]acroscopic and microscopic examination...revealed the presence of bloodstains. The majority of these bloodstains were consistent with contact transfer type bloodstain patterns." Id. at 492. Dr. Lee reported that no bloodstains or gunpowder particles were found on the jacket. That fact, Dr. Lee stated, "indicated that Mr. Foster was not wearing the jacket or the jacket was not in close proximity to the weapon at the time the weapon was discharged." Id. at 490. That finding comports with the evidence: Mr. Foster was not wearing a suit jacket when he was found; rather, his jacket was recovered from his car at Fort Marcy Park. See supra at 35.


[136] Lee Report at 491.


[137] Id.


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clothing, shows traces of soil visible to the naked eye.) Dr. Lee found that "[t]race materials were located embedded in the grooves of the sole patterns at the heel of [the left shoe]. A portion of this material subsequently was removed. Microscopic and macroscopic examination showed this material to contain mineral particles, including mica, other soil materials, and vegetative matter."[138] Dr. Lee stated that this fact "indicates the sole of the shoe had direct contact with a soil surface containing these materials."[139]


[138] Id. at 492.


[139] Id. It was not possible to associate definitively any of these mica or soil materials with Fort Marcy Park. As the FBI Laboratory explained, "[t]he trace amount of loose, unconsolidated soil" like that found on Mr. Foster's shoes and in the debris from the clothing "limits the meaningfulness regarding a comparison with other soils." Therefore, these materials "could have originated from the micaceous soil found at Fort Marcy Park, but the nature of this soil precludes an unambiguous association." FBI Lab Report, 7/9/96, at 1.


There has been misunderstanding of the statement in an earlier FBI Lab Report that no "coherent soil" was found in the samples. FBI Lab Report, 5/9/94, at 12 (emphasis added). The FBI Lab Report's statement regarding a lack of coherent soil simply means, as explained in the preceding paragraph, that there was insufficient soil to effect a comparison with soil samples from Fort Marcy Park. But a lack of coherent soil is not the same as a lack of any trace soil. And as Dr. lee concluded, examination of Mr. Foster's shoes revealed particles of soil materials, including that the sole of the shoe did in fact have direct contact with a soil surface.


Regarding the lack of mud or "coherent" soil, the weather on July 20, 1993, and throughout the month of July was hot and dry in the area surrounding Fort Marcy Park. Weather information for National Airport, a few miles from Fort Marcy Park, from the National Oceanic and Atmospheric Administration indicates that on July 20, 1993, the temperature ranged from a low of 75 degrees to a high of 96 degrees. There was no recorded precipitation. For the month of July 1993, total precipitation was 1.36 inches, which is 2.44 inches below normal. The average temperature for the month was 89.1 degrees, 3.2 degrees above normal. OIC Doc. No. DC-BI-6.


50
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e. Lack of Rips, Tears, or Scraping on Clothing


Dr. Lee found a small amount of vegetative material on Mr. Foster's shirt that could have resulted from contact with the ground in the park.[140] Dr. Lee found no ripping, tearing, or scratch or scarping-type marks on the shirt. Dr. Lee stated that this fact "suggests that no prolonged moving contact with a soil surface occurred which would cause the type of damage commonly resulting from dragging or similar action."[141]


Dr. Lee reported that soil and grasslike materials were similarly present on the pants in the area of the rear pocket, which indicates that the pants had direct contact with a soil surface.[142] Dr. Lee reported that "[n]o dragging-type soil patterns or damage which could have resulted from dragging-type action were observed on these pants."[143]


f. Bone Chip


Dr. Lee examined debris collected from Mr. Foster's clothing and reported that the debris was "found to contain a bone chip."[144] Dr. Lee stated that DNA was extracted from this bone fragment and amplified, and the DNA profile generated for this


[140] Lee Report at 491.


[141] Id.


[142] Id. at 492.


[143] Id.


[144] Id. at 139, 243, 493.


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bone sample was consistent with the DNA types of Mr. Foster.[145] Based on his analysis of the evidence, Dr. Lee concluded that "[t]his bone chip originated from Mr. Foster and separated from his skull at the time the projectile exited Mr. Foster's head."[146]


g. Pants Pocket and Oven Mitt


William Kennedy, Associate White House Counsel, eventually took possession of Mr. Foster's car on behalf of the Foster family after the Park Police released it on July 28, 1993. Mr. Kennedy maintained contents of the car that had not been taken into evidence by the Park Police, and he produced those contents to investigators from Mr. Fiske's Office.[147] The contents included a kitchen oven mitt that had been in the glove compartment in Mr. Foster's car (the mitt is depicted in the glove compartment in the Park Police photographs of the car taken at the impoundment lot on July 21).[148]


Dr. Lee's examinations of this oven mitt and of Mr. Foster's pants (taken into evidence by the Park Police at the autopsy on July 21) produced circumstantial evidence relevant to the investigation.


[145] Id.


[146] Id.


[147] Kennedy 302, 5/6/94, at 11-12; 302, 6/16/94, at 1.


[148] Investigators Rolla and Braun also recalled the oven mitt in the glove compartment of the car on July 20. Braun OIC, 2/9/95, at 95-96; Rolla 302, 4/17/96, at 6.


52
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Dr. Lee reported that "[m]acroscopic and microscopic examination of the inside of the front pants pockets revealed the presence of fibers and other materials, including a portion of a sunflower seed husk in the front left pocket. Instrumental analysis of particles removed from the pocket surface revealed the presence of lead. These materials were also found inside the oven mitt located in the glove compartment of Mr. Foster's vehicle... The presence of these trace materials could indicate that they share a common origin. These materials in the pants pocket clearly resulted from the transfer by an intermediate object, such as the Colt weapon."[149]


As noted, Dr. Lee also examined the oven mitt recovered from Mr. Foster's car. He reported: "Dark particle residues were located inside the oven mitt. Instrumental analysis revealed the presence of the elements lead and antimony in these particles; this finding could indicate that an item which had gunshot residue on it, such as the revolver..., cam in contact with the interior of [the oven mitt]."[150]


Dr. Lee further stated that "[s]unflower-type seed husks were located on the inner surfaces of this oven mitt. These sunflower seed husks found in Mr. Foster's front, left pants pocket."[151] Dr. Lee stated that "[t]his finding suggests that the sunflower seed husk


[149] Lee Report at 492-93.


[150] Id. at 494.


[151] Id.


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found inside the pants pocket could have bee transferred from the oven mitt through an intermediate object, such as the revolver."[152]


Virtually all theories that the manner of death was not suicide assume that Mr. Foster did not previously possess the gun recovered from his hand at Fort Marcy Park. Apart from a variety of other compelling circumstantial and testimonial evidence (discussed below) that the gun belonged to Mr. Foster, the evidence regarding the pants pocket and oven mitt also tends to link Mr. Foster to the gun. Mr. Foster was found by police and rescue personnel with the gun that fired the fatal shot in his hand, and the oven mitt was found in the glove compartment in his car. There is no evidence, moreover, that anyone other than Mr. Foster did place or would have placed this or any other gun into Mr. Foster's pants pocket and into the oven mitt. Those pieces of evidence, when considered together and with all of the other evidence, tend to link Mr. Foster to the gun and thus refute a theory that the manner of death was not suicide. The evidence regarding the pants pocket and oven mitt does not itself compel a finding as to location of death, but it is consistent with a scenario in which Mr. Foster transported the gun from the Foster home in the oven mitt,[153] and carried the gun in his


[152] Id.


[153] Statements by Foster family members provide circumstantial support for this part of the scenario. Lisa Foster and the Fosters' older son indicated that the oven mitt was usually in the kitchen, and they were unable to explain why it might have been in the Honda. Lisa Foster 302, 4/7/95, at 8; Older Son 302, 4/7/95, at 4.


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pants pocket as he walked from his car in Fort Marcy park to the berm near the second cannon.


h. Hairs and Fibers


In debris collected from Mr. Foster's clothing, the FBI Laboratory reported finding two blond to light brown head hairs of Caucasian origin that were suitable for comparison purposes and dissimilar to those of Mr. Foster.[154] the hairs did not appear to have been forcibly removed.[155] Hair evidence can become important or relevant in a criminal investigation when there is a known suspect and a significant evidentiary question whether the suspect can be forensically linked to another person (a rape or murder victim, for example) or to a particular location.[156] If the suspect is a stranger to the victim or the scene, the presence of the suspect's hair is relevant in assessing whether he or she had contact with the victim or scene. In this case, however, the only known individuals who reasonably might have been compelled to provide hair samples were persons already known to have had contact with Mr. Foster.


[154] FBI Lab Report, 5/9/94, at 11; OIC Investigators' Memorandum, 3/2/95, at 4 (Lab Conference). As explained above, the clothing was packaged together before trace evidence was obtained, and particular trace evidence cannot be conclusively linked to particular items of clothing that Mr. Foster was wearing at the time of his death.


[155] OIC Investigators' Memorandum, 3/2/95, at 4 (Lab Conference)


[156] See Crime Scene Investigation 4-5 (Lee ed. 1994) (discussing importance of evidence linking a suspect with a victim.)


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The FBI Laboratory reported 35 definitive carpet-type fibers in the debris collected from the clothing. Of those fibers, 23 were white fibers. OIC investigators sought to determine a possible source for the fibers[157] -- for the white fibers in particular, in light of the number of white fibers in comparison to the limited number of fibers of other colors.[158] The logical known sources for possible comparison were carpets from locations with which Mr. Foster was known to have been in contact -- his car, home, and workplace. OIC investigators obtained carpet samples from these sources, including from a white carpet located in 1993 in the house in Washington where Mr. Foster lived with his family. The FBI Laboratory determined that the white fibers obtained from Mr. Foster's clothing were consistent with the samples obtained from that carpet.[159]


In sum, therefore, the carpet fiber evidence -- the determination that the white fibers were consistent with a carpet from the Foster's home and the variety and insignificant number of other fibers -- does not support speculation that Mr. Foster


[157] Carpet fibers cannot be conclusively identified as having specific origin but can be identified for consistency with a particular origin. OIC Investigators' Memorandum (Lee).


[158] The remaining 12 were various colors, including blue gray, blue, gold-brown, light brown, gray, pink, and orange. No more than three fibers of any of these colors was found. OIC Investigators' Memorandum (FBI Lab Reports on Fibers). The variety of colors suggest that those fibers did not originate from a single carpet.


[159] Id. The Laboratory also determined that four of the non-white fibers were consistent with samples obtained from the White House or Mr. Foster's car. Id.


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was wrapped and moved in a carpet on July 20.[160] Indeed, the fiber evidence, when considered together with the entirety of the evidence, is inconsistent with such speculation.


3. Eyeglasses


When found, Mr. Foster's body was located on a steep berm with his head higher than his feet and his feet pointed essentially straight down the berm. Mr. Foster's eyeglasses were recovered by Park Police Technician Simonello approximately 13 feet below Mr. Foster's feet.[161]


a. Blood


Dr. Lee stated that "[b]loodstains were found on both sides of the lenses" of Mr. Foster's eyeglasses.[162] These bloodstains "were less than or equal to 1 mm in size. In addition, blood-like and tissue-like materials were identified on the [fingerprint] lifts of the eyeglasses."[163]


[160] In addition, one of the 23 white carpet-type fibers was scraped from Mr. Foster's jacket and tie. That also contrasts with such speculation; the jacket and tie were in Mr. Foster's car at Fort Marcy (and not on his body) and were subsequently packaged separately from the other clothing.


[161] A report by Technician Simonello states: "Approximately 13 ft. downslope of the victim's feet (west) I observed a pair of prescription glasses laying on the ground." USPP Report (Simonello) at 1. The prescription was consistent with Mr. Foster's prescription, and the glasses contained marks on the earpieces consistent with Mr. Foster's habit of chewing on the earpieces. FBI Lab Report, 5/9/94, at 11-12; Lisa Foster 302, 5/9/94, at 24.


[162] Lee Report at 493.


[163] Id.


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b. Gunpowder


The FBI Laboratory found one piece of ball smokeless powder on the eyeglasses, and it was "physically and chemically similar to the gunpowder identified in the cartridge case."[164]


c. Summary: Glasses


Dr. Lee stated that the above facts "support the interpretation that Mr. Foster was wearing his eyeglasses at the time the gun was discharged."[165] The analyses and conclusions of the experts and investigators in this and prior investigations reveal that the location where the glasses were found is consistent with the conclusion that Mr. Foster was wearing the glasses at the time the shot was fired.[166]


4. Surrounding Area


a. Gunshot Residue in Soil


As part of his examination, Dr. Lee went to Fort Marcy Park with OIC investigators and obtained soil and other materials from the berm on which Mr. Foster's body was found.[167] Dr. Lee examined the soil samples; he reported that "[a] few unburned and partially deformed gunpowder-like particles were recovered from


[164] FBI Lab Report, 5/9/94, at 8; see also Lee Report at 489, 493.


[165] Lee Report at 493.


[166] E.g., OIC Investigators' Memorandum (Lee).


[167] Lee Report at 422. No intensive review of the area under and around Mr. Foster's body occurred on July 20 or during the 1993 Park Police investigation.


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the soil in the area where Vincent Foster's body was found."[168] It cannot be determined "whether these particles were deposited on the ground at the time of Mr. Foster's death or at any other period of time."[169]


b. Possible Bloodstains on Vegetation at Scene


Dr. Lee stated that one photograph of the scene "shows a view of the vegetation in the areas where Mr. Foster's body was found. Reddish-brown, blood-like stains can be seen on several leaves of the vegetation in this area."[170] He also noted that "[a] close-up view of some of these blood-like stains can be seen in [a separate] photograph."[171]


5. Contents of Bodily Fluids


During the 1993 investigation, the laboratory of the Virginia Division of Forensic Science found that the blood, vitreous humor, and urine were negative for alcohols and ketones.[172] The Laboratory did not detect "phencyclidine, morphine, cocaine, [or] benzoyleogonine"; "other alkaline extractable drugs"; or "acidic [or] neutral drugs."[173]


[168] Id. at 489.


[169] Id.


[170] Id. at 495.


[171] Id. Dr. Lee said that "[i]f these stains are, in fact, blood spatters, this finding is consistent with the shot having been fired at the location where Mr. Foster's body was found." Id.


[172] Commonwealth of Virginia, Division of Forensic Science, Certificate of Analysis, Case No. 93-353, 7/26/93 (Huynh).


[173] Id.


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The FBI Laboratory later conducted more sensitive testing and determined that the blood sample from Mr. Foster contained trazadone.[172] Trazadone was an antidepressant medication prescribed as Desyrel by Mr. Foster's physician on July 19, 1993, and Mr. Foster took one tablet that night, according to his wife.[175]




C. Review by Pathologists


Because of the importance of the forensic evidence to the conclusion about cause and manner of death, the OIC retained Dr. Brian Blackbourne as an expert pathologist to assist the investigation. Dr. Blackbourne reviewed relevant reports, photographs, and microscopic slides; toured Fort Marcy Park; and interviewed Dr. Beyer, Dr. Haut, and the FBI and Virginia laboratory personnel. He provided a report to the OIC summarizing his work on the forensic issues setting forth his analyses.


Dr. Blackbourne concluded that Mr. Foster "died of a contact


[174] FBI Lab Report, 5/9/94, at 8.


[175] Lisa Foster 302, 5/9/94. at 13. She produced to investigators the prescription container with 29 tablets enclosed. The label on the container indicated that it initially had contained 30 tablets.


Dr. Berman reported that "[o]ne pill would have had no significant therapeutic effect as the majority of those prescribed this do not report benefit for at least two weeks' treatment." Berman Report at 6.


The Lab also detected diazepam and nordiazepam below recognized therapeutic levels. FBI Lab Report, 5/9/94, at 8. Diazepam is valium, nordiazepam is its metabolite.


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gunshot wound of the mouth, perforating his skull and brain."[174] Dr. Blackbourne based that conclusion "upon the autopsy report, diagrams and photographs and my examination of the microscopic slides of the entrance wound in the soft palate and posterior oropharynx which demonstrated extensive soot."[177]


Dr. Blackbourne concluded that Mr. Foster was alive at the time when the shot was fired. Dr. Blackbourne based this conclusion


upon the autopsy report and photographic evidence that there was bleeding
beneath the scalp about the gunshot exit wound and beneath the fractures
of the back of the skull. Such bleeding requires the heart to be beating at the
time these injuries occurred. The autopsy report and my microscopic
observation that blood was aspirated into the lungs requires that the person
be breathing in order to suck blood into the small air sac