Accuracy in Media

Kenneth Starr hired three experts to give him evaluations of the evidence in the Foster case. Dr. Henry Lee, who was then head of the Connecticut State Police Forensic Laboratory, was asked to examine the physical forensic evidence. Dr. Brian D. Blackbourne, the San Diego County medical examiner, was asked to look at the pathological evidence, and Dr. Alan L. Berman, a Washington, D.C. psychologist specializing in suicidology, was asked to report on Foster’s mental state. Starr’s staff relied heavily on the reports submitted by these experts in preparing their report for Starr, but unlike his predecessor, Robert B. Fiske, Jr., Starr refused to release their reports together with his own. We finally succeeded in obtaining copies of them last January by suing the Office of Independent Counsel under the Freedom of Information Act.

Dr. James Janacek, a Minnesota psychiatrist, became inter-ested in the Foster case after reading an article about it on the Internet by Charles Rozier, a retired Navy captain who is a full-time volunteer on AIM’s staff. He contacted Capt. Rozier, saying he would like to see Dr. Berman’s report. We sent him a copy when we received it in January. He has given AIM a 20,000-word “Forensic Evaluation” of Vincent Foster with 58 pages of appendices, including Dr. Berman’s report, on which he comments extensively. Dr. Janecek did this of his own volition pro bono. A substantial excerpt is included in this issue, and the full report will be made available at cost.

Dr. Janecek poses this legal question: Did Foster, on or before the day he died, possess a suicidal state of mind? He says, “If a yes or no answer is not possible what is the probability he was suicidal? His answer is, “Within reasonable medical certainty, Mr. Foster had a low to moderately low probability of self-lethality. Put in percentage terms Mr. Foster had at most a 30-35% probability of being suicidal. This 35% probability includes the 15% probability of a spontaneous suicide.”

“Suicide is usually a calculated act,” Dr. Janecek points out. He explains, “Death seems preferable to a worsening problem. A hopeless attitude toward an apparent ‘no exit’ situation is a serious suicide indicator.” He says, “The most serious risk factors for suicide are major depression, schizophrenia, bipolar disorder, personality disorder, alcoholism and substance habituation.” About a quarter of all suicides, he says, are associated with alcoholism and over half of those who attempt suicide have consumed alcohol at the time. He stresses the difficulty of predicting suicides even where psychological tests, specialized tests, special clinical scales or clinical evaluations are available. That being the case, it is even more difficult to determine whether or not a death was a suicide from what can be learned about the mental state of the deceased.

False Suicide Findings With A Foster Link

Janecek says, “Homicides masquerading as suicides are rare but do occur.” He cites three cases in which deaths were ruled to be suicides even though the physical forensic evidence strongly indicated they were homicides. All three have something in common with the Foster case. Two of them were declared to be suicides by Dr. James Beyer, the medical examiner who performed the questionable autopsy of Vincent Foster.

In 1989, Dr. Beyer concluded that the stabbing death of Timothy Easley was a suicide. He had overlooked stab wounds on Easley’s hand that were found by a second autopsy. Con-fronted with this evidence, the killer confessed. In 1991, Dr. Beyer reported that Tommy Burkett had shot himself in the head. Burkett’s parents also had a second autopsy performed. It revealed that Burkett had a fractured jaw, a bludgeoned right ear and multiple skull fractures. That should have resulted in a reversal of the suicide finding, but Burkett’s parents have labored in vain to get the record corrected.

Terry Wright, a soldier, died of a head wound. A .22 rifle was at his side. The U.S. Park Police concluded that Wright had shot himself. A reporter probing dubious suicide rulings in the deaths of servicemen described a preview of the Foster case. He wrote, “They failed to gather crucial evidence. They assumed it was a suicide from the beginning and missed vital information. Among the information they ignored was he was wearing thick gloves, the position of the body was neat….” An Army investigator claimed the evidence did not support the suicide finding.

100% Degree Of Medical Certainty

Janecek says that it is tempting in such situations for mental health experts to come up with opinions about the victim’s mental state based on findings by the medical examiner or the police that it was a suicide. He says that this is the logical fallacy of begging the question. He advises experts who testify on the deceased’s state of mind to avoid areas “best left to criminalists and other experts.” All the mental health expert can do, he says, is give his opinion on the state of mind of the deceased.

That said, he credits proponents of the “psychological autopsy,” citing Dr. Berman as one of them, with “outstanding results in alleviating uncertainty as to cause of death in forensic settings,” particularly in civil cases. But he cautions that “psychological theories may add to, but do not determine, the probability of suicide.” He points out that in his report on the Foster case Dr. Berman did not confine his opinion to Foster’s state of mind. Berman said, “In my opinion and to a 100% degree of medical certainty, the death of Vincent Foster was a suicide.” That was what Ken Starr wanted. He relied on Drs. Lee, Berman and Blackbourne to put an authoritative stamp of approval on his costly, inept investigation of Foster’s death.

Berman’s Flawed Scenario

Berman said it was probable that Foster had developed his suicide plan early on, but on the day of his death “he was ambivalent about carrying it out.” He says, “I believe the fatal decision was not made until lunch time, perhaps triggered by something he read in the newspaper.” He points out that Foster sent a clerk to find out why it was taking Linda Tripp so long to bring his hamburger. Her reaction was that he must have had an important appointment, because there had been no unusual delay. Berman sees it as an indication that he was impatient to end his life. He speculates that Foster went home to get a gun and then “drove around for some time before arriving at a secluded pastoral setting, at which he killed himself.”

There’s a lot wrong with that. The gun found in Foster’s hand was not one of the two handguns that he kept in his George-town house. It would have taken him about 10 minutes, not two hours to drive from Georgetown to Ft. Marcy. According to three eyewitnesses, his car was not in the Ft. Marcy parking lot at 4:30 and 5:30 p.m. It is estimated that he died about 3:30 p.m., long before his car reached the park. The FBI succeeded in getting Lisa Foster to identify the old black gun found in Foster’s hand as the silver gun she had brought to Washington, but they didn’t get the three people who said Foster’s car was not in the parking lot before 5:30 to alter their stories.

Dr. Berman relied on the truthfulness of the FBI for that kind of information, but he should know that his scenario does not square at all with the fact that Foster left his office, jauntily carrying his jacket over his shoulder, telling Linda Tripp that he had left some M&Ms for her on the tray and saying, “I’ll be back.” The fact that semen was found on Foster’s shorts and that blond hair, carpet fibers and pink wool fibers were found on his underwear gave rise to the theory that he had a date that involved sex, with no idea that he would meet the Grim Reaper. Berman rejects that theory, claiming that “involuntary urination, secreted seminal fluid, and defecation often occur on death from any cause.”

A mortician told us he had never heard of semen being secreted at death and that urination and defecation are rare, occurring when there is muscle relaxation. This is more common in case of death from head wounds, according to a staffer in the Office of the Medical Examiner of the District of Columbia. He said secretion of semen without any voiding of urine was not likely to occur unless the individual had recently emptied his bladder. No urine was reported found on Foster’s shorts, increasing the probability that the semen was the result of sexual activity. That, together with the blond hair, the fibers and Foster’s demeanor makes this scenario more plausible than suicide.

Accentuating The Negative

Berman tends to accentuate the negative and minimize the positive. Berman sees in Foster’s perusal of the newspaper a possible trigger that caused him to rush to kill himself. Janecek sees it as an indication that Foster was behaving normally that day. Janecek discusses things that Foster did on and before the day he died that indicated that he was looking ahead. He spoke to his youngest son, Brugh, about buying a boat. He was planning to take his sister and her daughter who were arriving in Washington on the day he died to the White House mess for lunch. He had arranged to meet with attorney James Lyons, who was flying in to discuss legal matters. He had a meeting with President Clinton scheduled for July 21, the day after his death.

Berman mentions the scheduled meetings with the President and Lyons and his sister’s impending visit, but doesn’t mention his niece. He doesn’t mention the planned visit to the White House mess, which would be a big thrill for the niece. Instead, he says, “It is not known what or if they had any plans scheduled, although his calendar listed a dinner date with her later in the week.” Berman sees nothing strange about the idea that Foster would suddenly decide to kill himself just before they arrived. Nor did he think it worth mentioning that Foster had discussed buying a boat with his youngest son.

Disagreement On Degree Of Depression

Berman says, “There is little doubt that Foster was clinically depressed in early 1993.” He listed such symptoms as insomnia, hand wringing, pacing, tension, profuse sweating. He provided as backup these quotes, not attaching any names to them.

  • “His sense of humor wasn’t quite as available.”

  • “He was more reserved than usual.”

  • “In the last two weeks his tone of voice changed…he wasn’t participating; he just wasn’t there.” He described Foster’s call to Dr. Larry Watkins, his physician in Little Rock, as “unprecedented,” “insistent,” and an “attempt to minimize while announcing his depression to someone other than Lisa,” his wife.

Janecek says that the symptoms described by his wife indicate that Foster was suffering from Panic Disorder, “a long-standing underlying anxious condition that is punctuated by discrete, short-lasting panic (terror) attacks. These are produced by a build-up of anxiety and stress. A slight increase in stress or tension can initiate a panic attack. Foster’s symptoms, as described by his wife, were insomnia, hand wringing and rubbing the palm of one hand with the thumb and forefinger of the other. Janecek also provided observations by named individuals who went on record after Foster’s death:

  • President Clinton spoke on the phone to Foster for 20-25 minutes the night before he died. “He described no symptoms or behavioral problems other than that Mr. Foster seemed tired.”

  • Marsha Scott, aide to the President, had a long meeting with Foster on July 19. She did not see any depression.

  • David Watkins, Assistant to the President for Management and Administration, saw Foster every day and noticed nothing unusual about his mood or behavior.

  • Betsy Pond, White House Counsel Nussbaum’s secretary, saw nothing wrong with Foster’s mental state.

  • Nancy Hernreich, Deputy Assistant to the President, saw no changes.

  • Beth Nolan, Associate White House Counsel, noticed nothing different.

  • Bernard Nussbaum, White House Counsel, did not see Foster as mentally troubled, but “he did see a marked diminution of Foster’s work in the final weeks.”

As for Foster’s call to Dr. Watkins in Little Rock, Janecek says Foster told his sister, Sheila, that he had called Dr. Watkins because he was feeling better and had decided not to call a psychiatrist as she had urged him to do. Dr. Watkins believed Foster was suffering from mild, situational depression. He prescribed trazadone, an antidepressant, but only in a dosage that would help him fall asleep. He had previously prescribed sleeping pills for Foster, but he said Foster feared that they were habit-forming. That may explain the switch to trazadone.

Measuring Major Depression

Janecek disputes Berman’s claim that Foster was suffering from major depression. He lists the nine symptoms, at least five of which must be experienced over a two-week period to justify a diagnosis of major depression. One of the five must be either a depressed mood most of the day, nearly every day or markedly diminished interest or pleasure in all, or almost all, activities most of the day nearly every day. Foster was not reported to have suffered any of the serious symptoms for more than a week before his death.

On the first criterion, a depressed mood, Janecek said only Mrs. Foster and his sister, Sheila, saw him as depressed and the daily occurrence was not documented. But he gave it a yes, “for argument’s sake.” But he rejected “diminished interest,” saying Foster worked hard, did a lot and seemed quite capable of pleasure when not working. Weight loss was a no. Insomnia was yes, but it was not the type of insomnia associated with depression. He classified agitation, fatigue, concentration and thoughts and threats of suicide all as no. His conclusion was that Foster had at most four of the necessary five symptoms necessary to be classified as suffering from major depression. He said “the defining, biological symptoms of depression …are either absent or only minimally present.”

Janecek says that a number of significant high-level short term predictors contradict the belief that Foster was in a suicidal state of mind before his death. What follows is quoted from his report. Emphasis is his, bracketed inserts are AIM’s.

NO SUICIDE THREAT OR ALLUSIONS TO SUICIDE: No one ever heard Mr. Foster threaten or discuss suicide. A full 80% of all successful suicides have either threatened or alluded to suicide. This fact alone should alarm anyone who believes he was suicidal. It is a high predictor of suicide. More importantly, it is quite specific to the individual. To be remembered, however, is that population studies have shown a high incidence of suicidal fantasies in normal, non-mentally ill people.

NO SUICIDE NOTE: It is true that only 12-20% of people who commit suicide leave a note. It is also true Mr. Foster was passionately committed to his children and family. He was of an orderly mind and was compassionate and empathic. One would expect, if not a note, a distinct effort to put his financial and other affairs in order.

NO SUICIDE ATTEMPTS OR RISKY IMPULSIVE ACTIONS IN RESPECT TO HIS HEALTH AND SAFETY: Mr. Foster was clearly worried about his blood pressure and cardiac function. Cardiac concerns are not characteristic of someone planning suicide. He was a deliberate person. He did not indulge in high risk behaviors.

FUTURE ORIENTATION: Mr. Foster anticipated and planned. The indications for future orientation are many. Examples include speaking to Brugh (his youngest son) on the 19th about buying a boat, planning to take his sister and niece to the White House Mess on the 21st, and arranging lunch with Mr. Lyons the following week. On the 19th of July, he agreed to a meeting with President Clinton on the 21st. On the 19th or 20th he wrote a matter-of-fact letter to his mother regarding some oil leases. His mother was to sign and return the oil leases. The last thing he said as he left the White House was, “I’ll be back.”

On the morning [of the day] he died, he took his children (Laura and Vince III) to work. Mr. Foster was chatty and seemingly happy. This man was passionate about his children. If he were going to kill himself, the anguish of seeing his children for the last time would have been overwhelming. Not even a professional actor could have overcome this anguish.

MENTAL STATE ON THE MORNING OF THE 20TH OF JULY 1993: According to his wife and children he was actually in better spirits that morning than he had been in the last week. It is true he could have decided on suicide; if so, he would have felt relieved of burdens and felt better. It is equally true he could have decided to resign or had actually told Marsha Scott [Clinton’s “hippie girlfriend”who had a long discussion with him the previous day] he was going to resign. This man did not have a suicide plan on the morning of the 20th. He might be able to dissimulate for others but not his children under these conditions. No one in the office felt he was depressed, unusual or troubled on the 20th. He even ate his usual lunch and read his usual newspaper.

CONCLUSION HIGH-LEVEL NEGATIVE SHORT-TERM PREDICTORS: The negative predictors for a suicidal-frame-of-mind argue strongly against a suicidal-state-of-mind. These predictors are individualistic to Mr. Foster; hence, they are more valid and reliable than statistical correlations.

PROTECTIVE FACTORS: Protective factors are important when assessing suicidal potential. Mr. Foster had a close, warm nuclear and extended family. He had many friends and associates who knew and liked him. He had known some of the people since childhood. Both President Clinton and Mr. McLarty were boyhood companions. Mr. Foster had family and friends to confide in. He did not confide any suicidal thoughts. He did confide his thoughts of resignation.

PUTTING IT ALL TOGETHER: The positive empirical evidence, the negative empirical evidence and the protective factors taken together suggest only a low to moderate chance that Mr. Foster possessed a suicidal state of mind. In fact, the examiner [Janecek] (like most physicians), has probably over-emphasized this since clinical, office practice norms were used. About 15% of people who commit suicide do so impulsively with no suicide predictors. This 15% plus another 20% gives the maximum suicidal proclivity. Better than a percentage figure is to state that the probability of Mr. Foster being suicidal was low to moderate.

DISCUSSION OF THE BERMAN REPORT

Ordinarily one does not directly critique a colleague’s forensic opinion. This is just not done any more than one would critique a colleague’s spouse as to looks and intelligence. The reason for this discussion is that the OIC (Office of the Independent Counsel, Kenneth Starr) makes an argumentum ab auctoritate, an argument based on appeal to authority. No question about it, Dr. Berman is an accepted authority on suicide, but his opinion does not justify changing probative evidence to direct substantive evidence. An expert opinion on this matter can help include or exclude the possibility of suicide on the basis of there being a “suicidal state of mind.” An affirmative expert opinion is not proof of a suicide. Further, Dr. Berman’s assertion of a “100% probability of suicide” is not only extraordinary but it has buttressed the argumentum ab auctoritate [appeal to authority] in a most significant way….

At the time Dr. Berman wrote his report, he was the Executive Director of the American Association of Suicidology. He had previously worked with the FBI and other law enforcement agencies…Dr. Berman has done many psychological autopsies including one on Kurt Cobain. Berman did not interview any of the family members. He relied on the information given to him by the OIC, including transcripts and FBI reports for a variety of witnesses including family members, co-workers and long-time friends and associates. For some reason, Dr. Berman made a site visit with two FBI agents to Fort Marcy Park. Similarly, he had a considerable amount of physical evidence including maps of Fort Marcy Park, the autopsy report, the Blackbourne and Lee Reports, ballistics tests and the Sprunt Report. Other than the Sprunt Report, this information comprised evidence not ordinarily germane to a state-of-the-mind inquiry by a mental health professional. [End of directly quoted segment]

Janecek’s Opinion Of Berman’s Report

The following is Dr. Janecek’s summary of his evaluation of Berman’s report. The emphasis is AIM’s.

“Dr. Berman opines Mr. Foster committed suicide. He seems to have based this on direct and circumstantial physical evidence more than on the state of mind of the decedent. Dr. Berman relied on physical evidence after Mr. Foster’s death as much as state-of-the-mind findings before his death. In this sense, Dr. Berman fell victim to the petitio principii fallacy [begging the question] in that he assumed suicide and then fit all of his state-of-the-mind conclusions into this assumption. If the assumption of suicide is correct then Dr. Berman has done a brilliant job; however, by making his assumption he negates the value of his state-of-the-mind findings and opinions as proving Mr. Foster committed suicide.

“Dr. Berman did not seem to rely on empirical predictive criteria but based a great deal of his effort on recreating a psychodynamic formulation consistent with a presumption of suicide. In the past, Dr. Berman did excellent psychological autopsies grounded on empirical predictive criteria. Dr. Berman opined a 100% certainty that Mr. Foster committed suicide. The empirical findings do not support Dr. Berman’s opinion of 100% certainty. Dr. Berman neglected to mention that 80% of all suicides have either threatened or discussed suicide before the event. Dr. Berman neglected to take into account the great number of future-oriented statements Mr. Foster made, including the night before his death (Brugh boat comment) and his last words to Linda Tripp ? ‘I’ll be back.’ Dr. Berman did not discuss the many protective factors in Mr. Foster’s life. By not accounting for these matters he overstated the possibility of suicide.”

What You Can Do

Send the enclosed cards or your own cards or letters to President George W. Bush, Joseph Lelyveld, executive editor of the New York Times, an editor of your choice and to Dr. James Janecek, thanking him for his fine analysis of Dr. Berman’s report.




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