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On December 3, the Supreme Court heard oral arguments on a decision by the 9th Circuit Court of Appeals ordering the release under the Freedom of Information Act (FOIA) to attorney Allan Favish of three crime-scene photos taken of White House Deputy Counsel Vincent Foster as he lay dead on the ground, the victim of a gun shot on July 20, 1993.

His widow and one of his sisters had vigorously opposed the release of the photos. Their attorney, James Hamilton, claimed that the release would violate the right of privacy of the relatives. Favish argued correctly that the right of privacy applied to Foster only and that it ceased with his death. He said Congress did not intend that it would apply to surviving relatives.

Hamilton implied that the photos were gruesome and would be published by supermarket tabloids, causing the relatives grievious mental suffering. There is nothing gruesome about a dead body unless it is mangled and bloody. The person who first found Foster’s body said he appeared to be sleeping. Two paramedics reported seeing what appeared to be a small-caliber-bullet wound under the jaw on the right side of Foster’s neck. They also saw blood on his right shoulder, apparently from that wound. Traces of blood from his right nostril and the right side of his mouth were also visible, but there was no gory mess.

The neck wound was ignored by everyone involved in the police investigation except Miquel Rodriguez, the prosecutor hired by Ken Starr to conduct a grand jury probe. Rodriguez resigned because he did not want to participate in a cover-up. James Beyer, the doctor who did the autopsy, said the entrance wound was in the back of Foster’s throat, over seven inches below the top of his head and that the bullet exited through the back of the skull, over 4 inches above the entrance wound. This impossible trajectory would have been exposed by head x-rays.

Beyer said in his report that he had taken x-rays, but only he and his assistant saw them. Beyer claimed the machine malfunctioned, but the service records show that there was nothing wrong with it. The x-rays vanished because they would show that Foster did not kill himself by firing a .38 revolver into his mouth. He did not own the gun found in his hand. It would have done far more damage to his head than the photos show. The photo of the gun in Foster’s hand was released nine years ago by special prosecutor Robert Fiske to ABC, Time and Newsweek. The photo proves that the police claim that the gun remained in his hand because it was stuck on his thumb above the knuckle was false.

The photo showing the neck wound is strong evidence of wrong doing by the government. It had to be suppressed because if the fatal shot was from a smaller caliber gun than the one that was planted in his hand, this would prove that Foster did not kill himself. Although numerous organizations including those representing the news media supported Favish, the most conservative justice favored the family. Justice Scalia said the relatives would be “very much harmed” and said, “There was a mistake here or there, but who cares?”

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