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TABLE OF CONTENTS

I. INTRODUCTION

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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."

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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.

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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 496 (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

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[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 appionted 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 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

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[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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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

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[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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and 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 dies 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

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[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

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[14] The great majority if individuals committing suicide to 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

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[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.

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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.

C. Methodology

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[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]

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[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 fornesic evidence and setting forth his analysis.[20]

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[20] As Dr. Lee explained, a perfect reoncstruction 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 shotting 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 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. 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.

D. Report

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

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[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 testmonial 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

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[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 houser in the Georgetown section of Washington.

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[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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[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]

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.

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[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 groing 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]

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[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]

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[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]

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[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 6:10:50 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 the 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.

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[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[49] (with his thumb trapped in the

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[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, tow 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; Halll 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 boyd 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]

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[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's daeth 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]

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[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]

V. FORENSIC ANALYSES

A. Autopsy

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[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.

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[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 componants 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 tack 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

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[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]

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[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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[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]

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[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 upin 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 stataed 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 Aurthur, 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 Aurthur 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 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 obnservations 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.

33

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

---

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

[79] Id. at 23.

[80] Id. at 26.

34

B. Laboratory Analyses

• Colt Army Special .38 caliber revlovler, 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.

35

• 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
  
  

---

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

[83] Id.

36

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

---

[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.

37

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]

---

[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.

38

---

[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.

39

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]

---

[100] Id.

[101] Id.

[102] Id.

[103] Fingerprint examiners can perform fingerprint identification when they obtain a sufficient number of ridge detials 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.

40

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]

---

[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

---

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

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

[111] Lee Report at 489.

42

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]

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 tirgger 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.

43

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]

---

[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

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]

---

[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.

45

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 deteced 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]

---

[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.

46

stated:

Photographs of the victim at the incident scene depcit 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 soaling 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]

---

[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.

47

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 and 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]

---

[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.

48

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 scence 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.

---

[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.

49

clothing, shows traces of soil visible to the naked eye.) Dr. Lee found that "[t]race materials wer 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

---

[140] Lee Report at 491.

[141] Id.

[142] Id. at 492.

[143] Id.

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

51

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]

---

[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

---

[149] Lee Report at 492-93.

[150] Id. at 494.

[151] Id.

53

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

---

[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.

54

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

---

[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.)

55

---

[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.

56

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.

---

[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.

57

---

[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.

58

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]

---

[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 boyd was found." Id.

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

59

C. Review by Pathologists

---

[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.

60

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 sacks of the lungs.[178]

---

[176] Blackbourne report at 2. Mr. Fiske's Office previously retained a panel of pathologists to prepare a report. The pathologists were Dr. Charles S. Wirsch, Chief Medical Examiner for the city of New york; Dr. James L. Luke, Investigative Support Unit, FBI Academy; Dr. Donald T. reay, Chief Medical Examiner for King County Washington; and Dr. Charles J. Stahl, Medical Examiner, Armed Forces Institute of Pathology, Washington, D.C. These pathologists reported that "the bullet wound of Mr. foster's head and brain, with its vital reaction, represents the definitive cause of death." Pathologists' Report at 1.

[177] Blackbourne Report at 2. In his report, Dr. Lee similarly state -- based on examination of the scene photographs, the medical examiner's report, and the autopsy photographs -- that "it is clear that Mr. Foster died as a result of a single gunshot wound," that "[t]he entrance of this wound was in his mouth," and that "the bullet appears to have exited through the back of Mr. Foster's head." Lee Report at 486.

[178] Blackbourne Report at 2.

61

fingers relatively close to the cylinder gap (the space between the cylinder and the barrel)."[179] Dr. Blackbourne reasoned that "the dense deposit of soot on the soft palate and oropharynx indicated that the gun was discharged in close proximity to the soft palate.[180] In addition, the DNA from the muzzle of the gun was consistent with that of Mr. Foster.[181] Furthermore, "[t]he right thumb was entrapped within the trigger guard by the forward motion of the trigger after the revolver was fired." Finally, Dr. Blackbourne state that "[w]hen a revolver is fired, smoke issues out of the space between the cylinder and the barrel. This smoke will be deposited on skin, clothing or other objects close to the cylinder gap. The autopsy report documents that smoke deposits were noted on the radial aspect of both right and left index fingers. Dr. Beyer told me that there was more deposit on the right as compared to the left index fingers."[182]

---

[179] Id. at 4.

[180] Id.

[181] Id.

[182] Id.

[183] Id. Similarly, the panel of pathologists concluded that the large quantity of gunpowder residue on the soft palate "indicates that Mr. Foster placed the barrel of the weapon into his mouth with the muzzle essentially in contact with the soft palate when he pulled the trigger." Pathologists' Report at 1. In addition, the pathologists noted that DNA consistent with that of Mr. Foster had been recovered from the muzzle of the revolver. Id.

62

upon the fact that he would be immediately unconscious following the gunshot wound through the brain. Movement of the body, after the gunshot, by another person(s) would have produced a trail of dripping blood and displaced some of his clothing. If he had been transported from another location, such movement would have resulted in much greater blood soilage of his clothing (as was seen when he later was placed in a body bag and transported to Fairfax Hospital and later to the Medical Examiner's Office). No trail of dripping blood was observed about the body on the scene. His clothing was neat and not displaced. The blood beneath the hhead and on the face and shoulder is consistent with coming from the entrance and exit wounds.[187]

---

[184] Blackbourne Report at 3.

[185] Id. at 4.

[186] Id. at 2.

[187] Id. at 3. The panel of pathologists retained by Mr. Fiske's Office similarly concluded that "death occurred where the body was found at Fort Marcy Park, Virginia. The relatively pristine nature of the exposed skin surfaces of the deceased and of his clothing precludes any other scenario. Substantially greater contamination of skin surfaces and clothing by spilled and/or smeared blood would have been unavoidable, had the body been transported postmortem to the place where it was found... There was no such contamination when the body was examined and photographed at the scene." Pathologists' Report at 2. The report continued: "[A] pool of blood was, in fact, found under the head of the deceased when the body was turned, and the upper back of his shirt was noted to be blood- soaked." Id. at 3.

63

upon the fact that blood in will pool in the mouth and

---

[188] Blackbourne Report at 4. Dr. Blackbourne stated that a mark on the right side of the upper, just below the jawline, seen in autopsy photographs, represents small fragments of dried blood and does not represent any form of injury. Id. Dr. Blackbourne based this conclusion upon his "experience in many autopsies. Blood dries overnight, prior to the autopsy. if one is not meticulous in washing the body prior to photographing it, small portions of blood may remain adherent to the skin. This mark is composed of two rectangular dark spots approximately 2mm X 3mm. These marks have none of the features of a gunshot wound or other antemortem trauma." Id. at 5. Similarly, Dr. Hirsch, an expert pathologist retained during the Fiske investigation, examined the autopsy photographs and stated that he saw "nothing in the photographs, and there certainly is nothing described in the autopsy to make me suspect that there is in any way any trauma to the side of his neck." OIC, 2/16/96, at 43, 45. The panel of pathologists further stated that, apart from the wound through the back of the head, "there was no other trauma identified." Pathologists' Report at 1. Dr. Beyer, who conducted the autopsy, was shown an enlarged autopsy photograph of the side of the neck and said, "I see blood, but I don't see any trauma." OIC, 2/16/95, at 15. Dr. Lee reviewed the scene and autopsy photographs and evidence and indicated that there was only an exit would out the back of the head. Lee Report at 89-92, 486. The scene and autopsy photographs were reviewed during Congressman Clinger's probe and the Senate's inquiry into Mr. Foster's death, both of which concluded that he committed suicide by gunshot through the back of the mouth out the back of the head. Moreover, as outlined above, all six persons who attended the autopsy, and who therefore were able to examine the body itself, confirmed that there were no wounds on Mr. Foster's body other than the head- mouth bullet wound. See supra note 77, at 33-34.

64

nasopharynx while the heart is still beating following a gunshot wound of the back of the mouth. This blood may drain toward the dependent side of the head if the volume of blood exceeds the capacity of the mouth. There will be a thin trickle. The broad area of blood covering the right side of his neck and extending over the right shoulder and right collar of his shirt would result from the sudden drainage of all the blood in his mouth... This event occurred prior to taking the Polaroid scene photgraphs.[189]

VI. ISSUES RELATING TO EVIDENCE AT SCENE

---

[189] Blackbourne Report at 4. Similarly, the panel of pathologists stated: "a broad transfer-type blood smear was present at the right side of the chin and neck, precisely corresponding to a similar blood stain of the right collar area of the shirt. For obvious reasons, the head must have been facing to the right when the body was found or have been turned to the right when the body was examined at the scene. In either circumstance, blood accumulated in the nose and mouth from the bullet defect of the soft palate and base of the skull would have spilled over the face and soiled the right shoulder and collar of the shirt." Pathologists' Report at 3. The transfer stain issue is discussed further below.

[190] Blackbourne report at 5. The panel of pathologists reached the same conclusion. Pathologists' Report at 4. As reflected by the findings of the various pathologists and investigators, the fact that the gun was found in Mr. Foster's hadn is consistent with this conclusion.

65

---

[191] Fornshill OIC, 1/11/95, at 92-93, 104- 105 (describing movements of FCFRD personnel Hall and Gonzales around head of body); Hall Senate Deposition, 7/20/94, at 22 ("I recall attempting to check the carotid pulse."); Gonzales Senate Deposition, 7/20/94, at 19 (" I believe Todd [Hall] did" check the pulse); Gonzales OIC, 1/10/95, at 56-57 (Hall may have checked for pulse); USPP Report (Hodakievic) at 1 (Gonzoles [sic] notified me that...Gonzoles [sic] and Hall checked the body for vital signs and found none."); Iacone OIC, 1/10/95, at 22 (Iacone checkd for pulse); Gavin OIC, 2/23/95, at 15 (learned at scene that FCFRD personnel "felt for a pulse in the carotid artery and got none."). The action of checking for vital signs and an airway may have caused some spillage of blood and may have caused the head to make contact with the right shoulder.

66

behind Mr. Foster's head, under his body, and the back of his shirt.[192] A reportet and Park Police officers separately visited the scene on July 21 and 22, 1993, and stated that they could identify the spot where the body had been located by the blood soaked into the ground.[193] A reporter placed a stick into the ground where the blood spot was located and estimated the blood depth at one-eighth inch.[194]

---

[192] Abt OIC, 2/9/95, at 30 ("We noted that there was a good amount of blood again on the back portion of the shirt and the collar, things like that."); Haut OIC, 2/16/95, at 13 ("[o]n the ground, underneath his head, there was a pool of congealed blood"); Hodakievic OIC, 2/14/95, at 16 (describing blood on the ground and on the back of head and shirt when body moved); USPP Report (Rolla) at 1-2 ("I observed blood... underneath his head... I rolled the decedent over and observed a large blood stain three quarters down the back of the decedent's shirt."); Rolla 302, 4/17/96, at 4 ("When Rolla rolled the body he observed new, wet blood pouring out of the nose and possibly the mouth of the decedent. Rolla also observed a poll of blood, approximately 4 inches across, which had been under the head and neck area. Rolla also observed the back of the shirt was soaked with blood from the collar to the waist."); USPP Report (Simonello) at 1 ("When the body was turned onto its stomach I observed a large area of blood where the victim's back had been coinciding with blood stains on the back of shirt."); Simonello 302, 2/7/95 at 3 ("after the body was rolled, Simonello observed a large blood pool under the head of the decedent and on the back of the decedent's shirt").

[193] Reporter 302, 4/18/96, at 1 (recalled a blood spot approximately 12 inches in diameter); Hill 302, 3/1/95, at 3 (located position of body by blood stain on the ground).

[194] 302, 4/18/96, at 1.

[194] Lee Report at 490, 494.

67

Dr. Beyer, who performed the autopsy, found a large amount of blood in the body bag.[196] These facts indicate that still more blood drained from the body during movement from the Fort Marcy scene to the autopsy.

---

[196] Id. at 495.

[197] There also are a number of other items of evidence that contradict any such suggestion, as noted elsewhere in this report.

68

Nissan with Maryland tag driven by C4; and (3) the broken- down blue Mercedes driven by C6. The three cars belonging to Mr. Foster, C4, and C6 are the only cars positively identified and known to law enforcement and the OIC that were in the Fort Marcy parking lot area in the 6:00-8:30 p.m. time frame and that belong to persons other than FCFRD personnel, Park Police personnel, towing personnel,[198] and Dr. Haut.

---

[198] A tow truck came to tow C6's car after the Park Police had arrived on the scene. Hodakievic OIC, 2/14/95, at 25. A tow truck later came to tow Mr. Foster's car. Raley's Towing Receipt, Case No. 30502; USPP Impounded Car Record, Case No. 30502.

[199] According to the reports of their interviews at the scene on July 20, 1993, C3 and C4 did not see anyone in or touching Mr. Foster's car. USPP Report, 7/20/93, at 1 (C3 and C4 interview). C4 sadi that a contrary statement in a report of an April 7, 1994, interview was innaccurate. 302, 2/2/95, at 2. C3 said simply that, at the time he provided subsequent statements in 1994 and thereafter, "he [w]as not at all sure" of [his] specific observations." 302, 2/2/95, at 3.

[200] Officer Fornshill stated that he was told later by Park Police personnel that there were what he described as "volunteers" along one of the trails in the park. Senate Deposition, 7/12/94, at 13; OIC, 1/11/95, at 93, 94. The evidence suggests that the people referred to as "volunteers" likely were C3 and C4. The investigators found C3 and C4 in the park but no "volunteers." In addition, the Park Service has uncovered no records that any Park Service workers were in the park near 6:15 p.m. on July 20, OIC Doc. No. DC- 229-1, and no other witness known to the OIC saw such workers in the park.

After looking at the body, Todd Hall of the FCFRD said he thought he heard someone else in the woods and subsequently saw something red moving in the woods. 302, 3/18/94, at 2. Upon discovering during the course of a later interview there was a road in the area where he had seen the motion, Hall believe it could have been vehicular traffic. 302, 4/27/94, at 2. Hall later stated that "I seen something. It was woody and I seen something go past, like a car... [I]t was probably a car or truck that drove past the bushes." Senate Deposition, 7/20/94, at 17-18. In another statement, Hall said that he "believe[d] someone was down there." OIC, 1/5/95, at 20. Hall believed that he saw something orange and that it was an orange vest. Id. at 22-23, 28. Hallsaid that he told on officer (Fornshill) when he made this observaton and that Fornshill did not respond. Id. at 23. (According to Officer Fornshill, none of the rescue personnel said anything to the effect that someone was in the area. OIC, 1/11/95, at 93.) In yet another statement, Hall said that he did not recognize this orange flash as a person. 302, 5/13/96, at 3.

69

enforcement and the OIC are not aware of the identities of the persons (other than C5) described by C2, C3, C4, and C6. There is no evidence that any of those unidentified persons (or any identified persons, for that matter) had any connection to Mr. Foster's death, and the totality of the forensic, circumstantial, testimonial, and state-of-mind evidence contrasts with any such speculation.

---

[201] Braun 302, 4/24/96, at 2; Rolla 302, 4/17/96, at 5-6; see also USPP Report (Simonello) at 1 (car doors "had been c[l]osed but not locked"); Ferstl OIC, 1/11/95, at 98, 101- 02, 118 (saw Braun open car, believes car was unlocked).

70

at least one of the doors and that it was locked.[202] That statement contrasts with that of Ralph Pisani of the FCFRD, who said that he, Jennifer Wacha, and Iacone looked into the Honda, but that no one tried the doors.[203] In any event, even were Iacone's recollection more accurate than the others,[204] the statement would be of uncertain significance, inasmuch as it is, of course, possible that one or more of the four doors was locked and one or more unlocked.[205]

---

[203] 302. 3/11/94, at 3; OIC, 1/10/95 at 34; 302, 4/29/96, at 2.

[204] Two other witnesses gave changing accounts on the locked-car issue. Gonzales said that when he returned to the parking lot from the body, he learned that both of the civilian vehicles were locked. 302, 4/27/94, at 4. In another statement, he said, "I'd be guessing" as to whether the doors to Mr. Foster's car were locked. Senate Deposition, 7/20/94, at 96-97.

In one statement, Hall said that the doors of the car were locked. OIC, 1/5/95, at 52-53. In a Senate deposition, however, Hall stated "I don't recall" in response the question "Did you know if the car was locked?" Senate Deposition, 7/20/94, at 28.

[205] There are a number of possible scenarios consistent with the evidence in which one or more of Mr. Foster's car doors could have been locked and one or more unlokced.

[206] There is no record of any effort to canvass the neighborhood near the time of death to determine whether anyone had seen or heard relevent information.

71

not yield relevent information.[207]

VII. ISSUES RELATING TO CONDUCT OF INITIAL INVESTIGATION

---

[207] With respect to sound, Fort Marcy Park is adjacent to the thoroughfares of GW Parkway and Chain Bridge Road; planes to and from National Airport regularly fly in patterns near the park; and security officers at the bearby Saudi Ambassador's residence on Chain Bridge Road reported that construction was ongoing at that time. 302, 4/20/94, at 1; 302, 4/20/94, at 2; OIC Investigators' Memorandum (Fort Marcy Park).

[208] USPP Evidence/Property Control receipt (Rolla) at 1-2.

[209] Rolla OIC, 2/9/95, at 27. Investigator Braun also said the pager was turned off. 302, 2/7/95, at 8. Investigator Abt's notes taken at the scene also indicate that the pager was turned off.

[210] OIC Doc. No. DC-210-2620.

72

---

[211] Simonello OIC, 2/14/95, at 40-41.

[212] The 35-millimeter photographs were underexposed; thus the Polaroids were of greater investigative utility.

[213] The handwriting on these photographs is that of Investigator Abt.

[214] OIC, 1/11/95, at 85, 87. Investigator Rolla initially suggested in a Senate deposition that he had taken photographs of the bcak of Mr. Foster's body. Senate Deposition, 7/21/94, at 89-90. After reviewing the Polaroids, Investigator Rolla stated that he intended to take such Polaroids, but he believes Investigator Braun took the Polaroid camera back to the parking lot before Dr. Haut arrived and the body was turned. 302, 4/17/96, at 4. The records are consistent with Investigator Rolla's statement, as the time "1930" is indicated on the back of the Polaroids taken by Investigator Braun at the parking lot scene, and Dr. Haut appears not to have arrived at the park until approximately 7:40 p.m.

73

Polaroids himself.[215]

---

[215] OIC, 1/12/95, at 7, 199-203. Investigator Abt recalled Sergeant Edwards taking Polaroids, OIC, 1/12/95, at 11, but Sergeant Edwards said he only carried the Polaroid camera and the Polaroids taken by Ferstl, but does not recall taking any Polaroids himself, OIC, 1/12/95, at 7, 199-203.

[216] OIC, 2/9/95, at 34-35. Inestigator Rolla removed Mr. Foster's watch, pager, and two rings from the body at the scene. USPP Evidence/Property Control Receipt (Rolla) at 1. Investigator Rolla has said that he did not reach to the bottom of the suit pants pockets at the time he took personal effects into evidence at the scene. 302, 4/17/96, at 3.

[217] Rolla, OIC, 2/9/95, at 35-36; Braun OIC, 2/9/95, at 75-76.

[218] OIC Document No. DC-108-14. The safety and security officer at the hospital stated that he escorted Investigators Braun and Rolla to the body in the morgue. He described the entire incident as "very routine." 302, 4/13/95, at 1-2.

[219] Braun 302, 4/24/96, at 3; Braun OIC, 2/9/95, at 76.

[220] USPP Evidence/Property Control Receipt (Braun) at 1-2. The evidence indicates that no persons other than police, rescue, medical, and hospital personnel had access to the body from the time when Investigator Rolla patted the pants at the park until the time when Investigator Braun recovered the keys in the pants pocket at the hospital. Two White House officials (William Kennedy and Craig Livingstone) viewed the body at the hospital, but the hospital logs reflect that they viewed the body near 10:30 p.m., OIC Doc. No. DC-108-13 -- well after Investigators Braun and Rolla had retrieved the keys. Moreover, a Fairfax County Police officer stationed on regular assignment at the hospital that evening and a nursing supervisor escorted Mr. Kennedy and Mr. Livingstone, and allowed them to see the body only through a glass window. Officer 302, 2/10/95, at 2.

74

I had intended to take x-rays, but our x-ray machine was not functioning properly that day. And if we took any all we got was a totally black, unreadable x-ray, so I hvae no x-rays in the file... I could very well have tried to use it on the Foster autopsy and got an unreadable x-ray. If his wound had been a penetrating wound, where there was only a wound of entrance, and the missile was retained within the body, then there would have been a requirement that I have an x-ray. Since this was a perforating wound, where there was a wound of entrance and a wound of exit, and I was going to examine the tissue through which the missile path had taken, I concluded we could proceed without the x-ray, rather than delay it six to eight hours.[221]

---

[221] OIC, 2/16/95, at 17.

75

sometimes would not. In this case, the assistant recalled moving the machine over Mr. Foster's body in the usual procedure and taking the x-ray. He said that he did not know until near the end of the autopsy that the machine did not expose the film.[222] In addition, like Dr. Beyer and the assistant, the administrative manager of the Medical Examiner's Office recalled "numerous problems" with the x- ray machine in 1993 (which, according to records, had been delivered in June of 1993).[223]

---

[222] 302, 9/11/95, at 2.

[223] 302, 1/27/95, at 1.

[224] Senate Hearing, 7/29/94, at 236, 242. The primary purpose of x-rays in this case, given the nature of the entrance and exit wounds, would have been to determine whether any bullet fragments remained in the head. Dr. Beyer said he felt "confident" without x-rays that "you can examine the brain for a bullet or bullet fragments and identify them." OIC, 2/16/95, at 18. As preciously set forth, Dr. Beyer, his assistant, and the four Park Police officers at the autopsy (Morrissette, Hill, Johnson, and Rule), all recalled that Dr. Beyer examined the head and brain (and dissected the brain) and found no bullet or fragments. See supra note 70, at 31-32. Officer Morrissette's report prepared after the autopsy, stated that "Dr. Byer [sic] stated that X-rays indicated that there was no evidence of bullet fragments in the head." USPP Report (Morrissette) at 1. As explained above, however, Dr. Beyer made that statement and reached that conclusion without x- rays.

76

VIII. OTHER ISSUES

---

[225] OIC, 2/23/95, at 52-53. C5 also had previously reviewed and adopted the interview report containing that statement. See 302, 4/14/94, at 4 (reviewed and initialled by witness).

77

establishing that the gun was difficult to see in Mr. Foster's hand when standing at the top of the berm.[226] That is further confirmed by Polaroids taken from above the head that reveal the difficulty of seeing the gun from that angle.

---

[226] Abt OIC, 2/9/95, at 27 ("It was rather difficult for me to see, because I was looking from down the hill and the decedent's hand was covering part of the top of the gun."); Arthur OIC 1/5/95, at 52 ("I remember it kind of laying underneath the right hand"); Hall Senate Deposition, 7/20/94, at 22 (did not see gun until bent over); Hodakievic OIC, 2/14/95, at 14-15 ("Yes" in response to "was it difficult to see the gun?"); Rolla Senate Deposition, 7/21/94, at 22 "it was difficult to see his right hand and the gun because of the plant and material around there"); Simonello OIC, 2/14/95, at 16-17 (gun was a "little difficult from a distance to observe.... the hand almost covered it entirely.").

[227] On a separate issue, C5 saw what he described as a partially filled wine bottle near Mr. Foster's body. 302, 4/14/94, at 4. Investigator Rolla observed a bottle of what he thought was wine cooler about 15 feet to the right of the second cannon, but he recalled that the bottle was empty and its label faded. 302, 4/27/94, at 3; 302, 4/17/96, at 1. The bottle is not depicted in photographs of the scene, and it was not taken into evidence by investigators or the evidence technician on the scene.

78

---

[228] These discrepencies are created by statements of FCFRD personnel Arthur and Iacone, which themselves are not consistent. Arthur states that the gun was black- brownish but not a revolver (based on the fact that he did not recall seeing a cylinder). OIC, 1/5/95, at 46-47. After viewing a photograph of the weapon in the decedent's hand, Arthur stated, according to the interview report, My memory is, I saw a semi-automatic, however, I must have been mistaken." 302, 4/24/96, at 2. Iacone stated that the gun was a silver-colored revolver-type weapon. 302, 4/27/94, at 3; OIC, 1/10/95, at 27.

[229] See Gonzales 302, 5/15/96, at 4; Gonzales OIC, 1/10/95, at 43 (saw a black gun in hand); see also Wacha OIC, 1/10/95, at 41-42.

[230] There are minor (but insignificant on this record) differences in descriptions by FCFRD and Park Police personnel of the estimated number of inches from Mr. Foster's right hand to his thigh and of the exact position of the hand and gun in relation to the thigh.

79

and forensic evidence support the conclusion that the gun did in fact belong to Mr. Foster.

---

[231] In August 1994, Sharon Bowman (the sister of Vincent Foster, Jr.) found five .38 caliber cartridges at the family home in Hope. 302, 12/1/94, at 1-2. That is further evidence suggesting that Mr. Foster, Sr., possessed a .38 caliber gun or guns. FBI Laboratory examination revealed that four of the cartridges were of the same manufacture (Remington) as in the revolver found in Mr. Foster's hand; they were manufactured at a different time than the cartridge and casing recovered from Mr. Foster's gun. FBI Lab Report, 2/21/95, at 2.

[232] 302, 5/9/94, at 16.

[234] Id.; 302, 4/7/95, at 7.

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gun[235] (she also referred to it as a "cowboy gun"[236]), which had been packed in Little Rock and unpacked in Washington. She also recalled a .45 caliber semi-automatic pistol. She said she found one gun in its usual location on July 20, 1993,[237] the .45 caliber semi-automatic pistol.[238] She did not find the other gun on or after July 20, 1993.[239]

---

[235] 302, 5/9/94, at 15.

[236] 302, 11/8/95, at 3.

[237] 302, 5/9/94, at 16.

[238] 302, 11/8/95, at 3.

[239] Id.

[240] USPP Report, 7/29/93, at 2 (L. Foster interview).

[241] 302, 5/9/94, at 14, 15.

[242] 302, 11/8/95, at 2.

81

looking lighter in color when she saw it during the move to Washington.[243]

---

[243] Id.

[244] 302, 1/13/95, at 8; 302, 11/30/95, at 1. In December 1994, Mr. Hubbell was convicted of federal crimes relating to his billing practices as an attorney at the Rose Law Firm in Little Rock.

[245] 302, 11/30/95, at 2.

[246] 302, 4/11/95, at 2.

[247] Id.; 302, 6/6/94, at 2.

82

---

[248] Letter from Jïhn Sloan to Captain Hume in U.S. Park Police file.

[249] 302, 4/11/95, at 2.

[250] 302, 4/28/95, at 1.

[251] Id.

[252] Older Son 302, 4/7/95, at 3.

83

came from his grandfather's house. He described his grandfather's guns as a small, pearl handled gun, and one or two revolvers. He believes his father placed the guns in a closet in Washington.[253]

---

[253] Younger Son 302, 4/7/95, at 2.

[254] Daughter 302, 4/7/95, at 3.

84

forensic evidence supports the conclusion that the gun found in Mr. Foster's hand belonged to Mr. Foster.

1. Did those who saw Mr. Foster leave the White House on July 20 see him with a briefcase?
   
   
2. Was a briefcase observed in Mr. Foster's car at Fort Marcy Park?
   
   
3. Did the Park Police return a briefcase to the Secret Service that evening?
   
   
4. Was a briefcase in Mr. Foster's office at the White House after his death?
   
   
5. How many briefcases did Mr. Foster use?
   
   

85

Ms. Tripp makes it a habit to notice what the staff members are taking with them when they leave the office in order to determine for herself how long she may expect them to be away from the office. Ms. Tripp was absolutely certain that Mr. Foster did not carry anything in the way of a briefcase, bag, umbrella, etc. out of the office.[255]

Ms. Tripp confirmed to the OIC that this report accurately reflected her recollection.[256]

---

[255] USPP Report, 7/22/93, at 1, (emphasis added) (Tripp interview).

[256] Tripp OIC, 6/21/95, at 9.

[257] Pond OIC, 4/26/95, at 29.

[258] 302, 5/3/94, at 2.

[259] OIC, 4/4/95, at 77.

86

[260] An officer of the Secret Service Uniformed Division stated that he saw Mr. Foster exit the West Wong onto West Executive Drive on July 20 around lunchtime. The officer said that he does not recall Mr. Foster carrying anything. 302, 4/20/94, at 2.

---

[261] Braun OIC, 2/9/95, at 70 ("there is no question, there was never a briefcase in that car"); Rolla 302, 2/7/95, at 4 (report: "Rolla stated that he did not observe any briefcase in the vehicle at all"). Technician Simonello also stated that he was "certain there was no briefcase" in the car. 302, 4/17/96, at 2.

[262] 302, 2/17/95, at 2-3.

87

see a briefcase.[263] Wacha, Iacone, and Pisani of the FCFRD also said that they did not recall seeing a briefcase.[264]

---

[263] OIC, 1/11/95, at 147.

[264] Iacone 302, 4/29/96, at 2; Iacone OIC, 1/10/95, at 35; Pisani OIC, 1/10/95, at 25; Wacha OIC, 1/10/95, at 51- 52.

[265] 302, 3/18/94, at 3.

[266] OIC, 1/5/95, at 53.

[267] Senate Deposition, 7/20/94, at 17, 27.

[268] 302, 2/23/94, at 3.

88

can really remember."[269] He also said that what he recalled could have been a canvas bag that was found in Mr. Foster's car.[270] Gonzales was not present when the Park Police entered the Honda.[271]

---

[269] Senate Deposition, 7/20/94, at 95.

[270] 302, 6/15/96, at 4. Tha bag is clearly shown in photographs of Mr. Foster's car taken at the scene and at the impoundment lot.

[271] Senate Deposition, 7/20/94, at 94.

[272] C5 OIC, 2/23/95, at 37.

[273] OIC Investigators' Memorandum, 3/1/96, at 44; C3 302, 2/2/95, at 1 (stated that he "may have had a briefcase" in C4's car).

[274] C2 OIC, 11/1/95, at 34.

89

Mr. Foster's car.)[275]

SA Tom Canavit, WFo PI squad, advised that he had been in contact with US Park Police and was assured that if any materials of a senstive nature (schedules of the POTUS, etc.) were recovered, they would immediately be turned over to the USSS. (At the time of this writing, no such materials were located).[276]

---

[275] C3 and C4, who drove together to Fort Marcy Park, said there were wine coolers and possibly a briefcase in C4's car. C4 302, 4/7/94, at 3; C3 302, 2/2/95, at 1. Based on the estimated times provided by the witnesses, C2 would appear to have left the park before C3 and C4 arrived together.

[276] OIC Doc. No. Dc-211-147 (emphasis added); see also Canavit 302, 8/3/95, at 2. Park Police Lieutenant Gavin's typewritten notes of that evening reflect that Canavit had inquired about "WH passes, classified docs in vehicle."

[277] OIC, 8/31/94, at 32.

90

---

[278] See Gorham 302, 3/16/95, at 7; Lisa Foster 302, 4/7/95, at 6; Older Foster Son 302, 4/7/95, at 4. Mr. Foster also possessed a large brown litigation bag that was seen in his office on Jluy 22 during the review of documents.

[279] OIC Doc. No. DC-211-147.

[280] Id. The Secret Service records reveal that David Watkins and Craig Livingstone were the first two White House officials notified (they were notified by different Secret Service personnel). Id.

91

White House Residence.[281] The trooper described Dickey as "hysterical" and "very upset" when she called.[282] The trooper, who was working a shift until 10:30 p.m. Arkansas time that night,[283] stated that Helen Dickey called him before 7:30 p.m. Arkansas time (8:30 p.m. Eastern time); according to the interview report, he said "he could possibly be mistaken about the time the call from Dickey was received. The call could have been as late as 8:30 PM, Arkansas time. However, he still felt his best recollection was that the call was recevied sometime between 4:30 PM and 7:30 PM [Arkansas time]."284

---

[281] 302, 11/9/95, at 2. The trooper said that Dickey's converasation was "very disjointed," id., and that, although he could not recall her precise words, Dickey told him that Mr. Foster had commited suicide at the White House. 302, 6/2/95, at 1. The trooper said that he learned later that Mr. Foster commtted suicide at Fort Marcy park. Id. In addition to the other evidence, the evidence regarding Mr. Foster's car (photographs of its interior and statements about the search of it) clearly demonstrate that Mr. Foster did not commit suicide there.

[282] 302, 6/2/95, at 1; 302, 11/9/95, at 2.

[283] 302, 11/9/95, at 1.

[284] Id. at 3. Another Arkansas trooper stated that the first trooper called him soon after the Dickey call. This second trooper "placed the time of this telephone call at approximately 6:00 PM" Arkansas time. 302, 11/9/95, at 1.

[285] 302, 2/7/96, at 1.

92

Helen was younger.[286]) She often contacted her mother in Virginia and her father in Georgia from a phone on the second floor of the White House Residence.[287] Dickey stated that she later called (from a different phone) the Arkansas Governor's Mansion and talked to the trooper at approximately 10:30 p.m. Eastern time.[288]

I watched [Larry King Live] and about 10:30 [the Usher's Office employee] came up and told me that they had found Vince Foster's body and that he'd killed himself. I waited for the punchline and lost it. I called Mom and Dad... We went to Lisa's, and everyone was there...[289]

---

[286] Dickey 302, 10/31/94, at 1.

[287] Dickey 302, 2/7/96, at 2.

[288] Id. at 3. White House Residence phone records indicate that a call was placed to the number of Dickey's father at 10:06 p.m. OIC Doc. No. DC-95-7; Dickey 302, 2/7/96, at 2. A call to the Arkansas Governor's Mansion is not reflected on these records. As indicated, the call may have been made from a phone in the White House not on the floors of the White House Residence: The Usher's Office employeed who notified Dickey recalls Dickey making a call, but not in the Residence, soon after he notified her. 302, 5/21/96, at 2. Complete records for such calls are not available.

[289] OIC Doc. No. DC-348-8.

93

started screaming and crying, and ran downstairs.[290] The Usher's Office employee "firmly believes he was the first to inform Dickey of the news of Foster's death because of her extreme reaction to the news.[291]

---

[290] 302, 5/21/96, at 2.

[291] Id.

[292] Precise recollections of time, if not tied to a specific event that can be documented as having occurred at an exact time, can, of course, be imprecise or inaccurate. Here, the recollection is tied neither to a specific event nor to an exact time. The recollection instead is of a general three-hour period of time in which the call might have been received. The recollection is not reflected in a contemporaneous document.

94

the area where Mr. Foster's body was found. Their search for the bullet fired from the gun was unsuccessful.[293]

---

[293] Fiske Report at 47.

[294] 302, 9/12-10/31/95, at 4 (Investigators' Report of Search).

[295] Id.

95

distance of 175 meters,[296] which represented the highest probability areas,"[297] a full search of even 90 degree-175 meter range would have included areas outside the park that were not searched.[298] In addition, because dense foliage and trees surround the area where Foster's body was discovered, and since there is a...cannon approximately 12.5 feet directly behind the location where the body lay, there is a distinct possibility the bullet's trajectory was altered due to its striking or ricocheting off a natural or man-made obstruction.[299] Another variable is that "Foster's head could have been turned to one side or the other when the shot was fired."[300]

IX. STATE OF MIND

---

[296] Id. at 7.

[297] Id. at 4.

[298] Id. at 7-8.

[299] Id. at 4.

[300] Id. at 5.

96

many colleagues who worked closely with him at the Rose Law Firm or the White House; and various other persons with potentially important information. During this effort, the OIC gathered extensive evidence relating to Mr. Foster's state of mind and activities.

---

[301] Center for Disease Control and Prevention, Suicide in the United States, 1980-1992 2 (1995).

95 (typo should be 96)

firearm.[302] During 1993, therefore, there were approximately 85 suicides per day and 52 suicides by firearm per day, in the United States.

---

[302] These figures were provided by the Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Division of Violence Prevention.

[303] Berman Report at 3. Dr. Berman noted that "[r]ecent studies . . . have documented a significant relationship between perfectionism and both depression and suicidality, particularly when mediated by stress." Id. at 13.

[304] Id. at 3.

98

experiences in Washington,"[305] Mr. Foster had "uncharacteristically. . . talked of quitting,[306] but considered a return to Little Rock to be a "humiliation."[307]

---

[305] Id. at 5.

[306] Id. at 13.

[307] Id. at 7.

[308] Id. at 14.

[309] Id. at 4.

[310] Id. at 7.

99

depression and to stress, criticism, and long hours.[311]

---

[311] Id. at 6.

[312] Id. at 13.

[313] Id. at 14.

[314] Id.

[315] Id.

100

that there was some history of depression in the family.[319]

---

[319] Id. at 6.

[320] Id. at 14.

[321] Id. at 15.

[322] Id.

101

this point, overwhelmed and out of control.[323]

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[323] Id. With respect to Mr. Foster's eating lunch on July 20, Dr. Berman stated that "[t]here is no study in the professional literature that has examined eating behavior prior to suicides" and that "even death row inmates, knowing they are to die within a short time, eat a last meal." Id. at 14.

[324] Id.

[325] Id.

[326] Id.

[327] Id.

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brief outline of some of the evidence relevant to the ultimate determination that Mr. Foster's state of mind was consistent with suicide. This outline is not designed to set forth or to suggest some particular reason or set of reasons why Mr. Foster committed suicide. Rather, the issue for the purposes of the death investigation is whether Mr. Foster committed suicide, and this outline is designed to show that, as Dr. Berman concluded compelling evidence exists that Mr. Foster was distressed of depressed in a manner consistent with suicide.[328]

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[328] The OIC has been mindful of and sought to comply with the requirement of restraint imposed by the Independent Counsel Reauthorization Act of 1994: The reporting requirement 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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to the White House Residence; and issues related to the Freedom of Information Act.[329]

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[329] This summary report is not an appropriate forum for an exposition of substantive events under investigation by the OIC -- including Whitewater, Madison, and Travel Office issues -- and Mr. Foster's possible relationship to those events. Those investigations have not concluded, and thus it would be inappropriate to publically disclose evidence on such matters. In any event, much information on those subjects is publically accessible in reports of congressional committees and federal agencies, in sevearl books, and in numerous media articles and reports.

[330] OIC Doc. No. DC-210-5573.

[331] OIC Doc. No. DC-210-3907

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[332] See Who Is Vincent Foster?, Wall St. J., June 17, 1993, at A10; Vincent Foster's Victory, Wall St. J., June 24, 1993, at A12.

[333] See, e.g., Beryl Anthony 302, 4/11/95, at 2; Sheila Anthony 302, 4/28/94, at 4; Alice Mae Foster 302, 5/2/95, at 2; Lisa Foster 302, 4/7/95, at 8; Hockersmith 302, 8/31/95, at 3; Kennedy 302, 5/6/94, at 4-5; Lindsey 302, 6/22/94, at 2; Lyons OIC, 7/25/95, at 19-21; Scott 302, 6/9/94, at 3; Thomases OIC, 7/7/95, at 36-37; Tripp 302, 3/27/95-3/28/95, at 2-3.

[334] USPP Report, 7/27/93, at 1 (Beryl Anthony Interview)

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there will be "failures, and criticiams and bad press and lies, stormy days and couldy days." He advised to "[t]ake time out for yourself. Have some fun, go fishing, every once in a while take a walk in the woods by yourself." He suggested that "[i]f you find yourself getting burned out or unfulfilled, unappreciated[,]...have the courage to make a change."

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[335] See, e.g., Appoint Special Counsel, USA Today, July 19, 1993, at 10A; The Travel Office Controversy Isn't Over Yet, Wash. Times, July 12, 1993 at F2; A Stealthy, Evasive Confession, N.Y. Times, July 11, 1993, at § 4, p. 18.

[336] See Beryl Anthony 302, 4/11/95, at 2; Beryl Anthony OIC, 6/25/96, at 5-6; Lyons 302, 5/12/94, at 3; Lyons OIC, 7/25/95, at 32-33.

[337] This note is not dated. Because it refers to the Travel Office incident, Mr. Foster must have written it at some point in the last several weeks of his life. The FBI Laboratory found one latent print on the note and later determined that the print belonged to Bernard Nussbaum. FBI Lab Report, 7/5/95, at 1. (Mr. Nussbaum handled the note after its discovery and before its production to the Park Police.) The note was torn into pieces when produced to the Park Police; as received by Mr. Fiske's Office and the OIC, there was one missing piece to the note. The missing piece is from the bottom portion of the page, which appears to be blank.

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inexperience and overwork" and that he "was not meant for the job or the spotlight of public life in Washington. Here ruining people is considered sport."[338]

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[338] At the request of the OIC, the FBI Laboratory compared the original note to four original pages of known writing of Mr. Foster that the OIC had obtained from the documents that were in Mr. Foster's office at the time of his death. The Laboratory determined that the note and these four sheets were written by the same person (Vincent Foster). FBI Lab Report, 11/9/95, at 1.

The OIC also retained an independent handwriting expert, Gus R. Lesnevich. Mr. Lesnevich served in the Questioned Document Section of the U.S. Army Criminal Investigation Laboratory in Vietnam. In 1974, he joined the United States Secret Service and in 1976 became Senior Document Examiner at the Secret Service Identification Branch. In 1981, he entered private practice and has worked as an expert for federal and state law enforcement agencies, Legal Aid, and public defenders. He has qualified and testified as an expert witness in numerous state and federal courts throughout the United States. He was retained as a government expert in six cases in the Iran- Contra matter, and he has been retained in numerous other high-profile federal criminal cases.

In this matter, Mr. Lesnevich compared the original note to four pages of known writing of Mr. Foster that were in his office at the time of his death; to one other original page of paper that was known to have been written by Mr. Foster; and to 16 original checks bearing the known writing of Mr. Foster. Mr. Lesnevich concluded that the written text on the note "contained normal, natural and spontaneous writing variations. These normal, natural and spontaneous writing variations could be found in the letter formations, beginning strokes, ending strokes, connecting strokes, etc." Lesnevich Report at 2. He further concluded that "examination and comparison of the questioned written text appearing on the note with the known writing on the [known] documents has revealed that the author of the known documents wrote the note." Id. (reference numbers ommitted). Mr. Lesnevich prepared a thorough 51-page comparison chart "that points out and illustrates a number of the normal, natural and spontaneous writing habits that were found common between the written text appearing on the questioned note and the known handwriting of Vincent Foster found on the [submitted known] documents. Id. at 3.

Previous investigations also commissioned handwriting analyses of the note. At the request of Mr. Fiske's Office, the FBI Laboratory performed a handwriting analysis of the original note, comparing it to a "[h]andwriting sample bearing the purported known writing of Vincent Foster" and determined that the note was written by the same person who wrote the known sample. FBI Lab Report, 5/17/94, at 1-2. At the request of the Park Police, the United States Capitol Police performed a handwriting analysis of the note comparing it to a copy of a handwritten letter of Mr. Foster that had been provided by Mrs. Foster. The U.S. Capitol Police concluded that "[b]oth the Known and Questioned Documents were completed by the same write/author and that writer/author is known as Vincent W. Foster." Report of United States Capitol Police, Identification Section, 7/29/93, at 2.

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[339] Nussbaum 302, 6/8/95, at 6. Another witness saud that he was told by Mr. Nussbaum that Mr. Foster's work product had deteriorated and that Mr. Foster had seemed distracted. 302, 10/23/95, at 14.

[340] Lisa Foster 302, 5/9/94, at 15; Kennedy OIC, 3/2/95, at 66-67, Sheila Anthony 302, 4/28/94, at 9.

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the names of three psychiatrists.[341] Mr. Foster did not speak to any of the three psychiatrists,[342] although phone records show that Mr. Foster attempted to contact one of them on July 16.[343] When Mr. Foster was found at Fort Marcy Park, a list of the three psychiatrists was in his wallet.[344]

I talked to Vince on 7/19/93, at which time he complained of anorexia and insomnia. He had no GI [gastrointestinal] symptoms. We discussed the possibility of taking Axid or Zantac to help with the ulcer symptoms as he was under a lot of stress. He was

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[341] Sheila Anthony 302, 4/28/94, at 7-8; see also USPP Report, 7/27/93, at 1 (Beryl Anthony interview); USPP Report, 7/29/93, at 2 (Lisa Foster interview).

[342] USPP Report (Rolla), 7/27/93, at 1.

[343] OIC Dco. No. DC-39-6.

[344] USPP Report (Rolla), 7/27/93, at 1.

[345] 302, 4/7/95, at 3, 5.

[345] Alice Mae Foster 302, 5/2/95, at 3.

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concerned about the criticism they were getting and the long hours he was working at the White House. He did feel that he had some mild depression. I started him on Desyrel, 50 mg. He was to start with one at bedtime and move up to three... I received word at 10:20 p.m. on 7/20/93 that he had committed suicide.[347]

Dr. Watkins said that it was unusual, even unprecedented, for Mr. Foster to call him directly.[348] Lisa Foster said that Mr. Foster took one tablet of the antidepressant medication on the night of the 19th.[349]

X. SUMMARY OF CONCLUSIONS

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[347] OIC Doc. No. DC-41-2.

[348] 302, 5/16/94, at 2.

[349] 302, 5/9/94, at 13.

[350] Berman Report at 15.

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investigators. The experts included Dr. Brian D. Blackbourne, Dr. Henry C. Lee, and Dr. Alan Berman. The investigators included an FBI agent detailed from the FBI- MPD Cold Case Homicide Squad in Washington, D.C.; an investigator who also had extensive homicide experience as a detective with the Metropolitan Police Department in Washington D.C., for over 20 years; and two other OIC investigators who had experience as FBI agents investigating the murders of federal official and other homicides. The OIC legal staff in Washington, D.C., and Little Rock, Arkansas, participated in assessing the evidence, examining the analyses and conclusions of the OIC experts and investigators, and preparing this report.

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investigators.

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in the photographs of the scene. Investigators found a quantity of blood under Mr. Foster's back and head when the body was turned, and Dr. Beyer, who performed the autopsy, found a large amount of blood in the body bag. In addition, the blood spatters on Mr. Foster's face had not been altered or smudged, contrary to what would likely have occurred had the body been moved and the head wrapped or cleaned. Fort Marcy Park is publically accessible and traveled; Mr. Foster was discovered in that park in broad daylight; no one saw Mr. Foster being carried into the park. All of this evidence, taken together, leads to the conclusion that the shot was fired by Mr. Foster where he was found in Fort Marcy Park.

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clear signs of crisis and uncharacteristic vulnerability."[351] Dr. Berman stated, furthermore, that "[t]here is littel doubt that Foster was clinically depressed... in early 1993, and, perhaps, sub-clinically even before this."[352] Dr. Berman concluded 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."[353]

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[351] Berman Report at 10.

[352] Id. at 9.

[353] Id. at 15.

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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

APPENDIX TO REPORT ON THE DEATH OF
VINCENT W. FOSTER, JR.,
CONTAINING COMMENTS OF
KEVIN FORNSHILL, HELEN DICKEY, AND PATRICK
KNOWLTON

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Dear Ms. Sargent:

Dear Mr. Langer:

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