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Vince Foster Death Photos Bring Access Battle to High Court
American Lawyer Media ^ | February 18, 2003 (web posted 2/14/03) | Tony Mauro

Posted on 02/14/2003 8:44:38 PM PST by AJFavish

Vince Foster Death Photos Bring Access Battle to High Court

Tony Mauro American Lawyer Media 02-18-2003

Nearly 10 years after White House Deputy Counsel Vincent Foster died in a Northern Virginia park, a contentious battle over public access to death-scene photographs is before the U.S. Supreme Court.

While the circumstances of Foster's apparent suicide are now debated mainly on the Internet by conspiracy theorists and critics of former President Bill Clinton, the access dispute could result in an important ruling on privacy and the Freedom of Information Act. Similar skirmishes over release of autopsy photos of President John F. Kennedy and audiotapes of the final moments of the space shuttle Challenger disaster were not reviewed by the high court.

Three petitions involving the Foster photos are among dozens of cases the Court will consider at its private conference this Friday. At the conference, the justices will discuss pending cases and decide which, if any, to add to the Court's docket for argument and decision next term.

The three cases are Office of Independent Counsel v. Allan J. Favish, No. 02-954; Allan J. Favish v. Office of Independent Counsel, No. 02-409; and Sheila Foster Anthony and Lisa Foster Moody v. Allan J. Favish, No. 02-599.

Favish is a solo practitioner in Santa Clara, Calif., who once worked for Judicial Watch in Washington, D.C. Moody is Foster's widow, and Anthony is one of his sisters. The Office of Independent Counsel, which twice investigated Foster's death, was once led by Kenneth Starr and is now headed by Julie Thomas, who is phasing out its operations.

Two independent counsel investigations, as well as probes by law enforcement agencies and congressional committees, concluded that Foster committed suicide in July 1993 in Fort Marcy Park in McLean, Va. But Favish says his "best guess" is that Foster was murdered. He invoked FOIA to seek 150 death-scene and autopsy photos from the independent counsel in 1997. The photographs, he contends, could clear up conflicting reports of whether Foster suffered a neck wound.

Separate litigation by the conservative group Accuracy in Media seeking similar photos from the National Park Service failed, with the U.S. Court of Appeals for the D.C. Circuit ruling that the surviving family's privacy interests outweighed the unsubstantiated allegations of government wrongdoing that were behind the request for the photos.

Favish's FOIA litigation has had several twists and turns. Says Favish: "I didn't know what I was getting into when I started this."

When Favish's FOIA request was denied, he filed suit in the Central District of California. A district judge ruled against him, though the court ordered some of the photos released. On appeal, a divided panel of the San Francisco-based 9th Circuit ruled partly in Favish's favor. The appeals panel, like the D.C. Circuit, said Foster's family had a valid privacy interest. But unlike the D.C. Circuit, the 9th Circuit said Favish did not have to justify his request by demonstrating government misconduct.

The appeals panel ordered a lower court judge to review the remaining 10 photos in contention and balance the public benefit against the privacy interest of the Foster family. On remand, the judge ordered the release of five of the 10 photos. When the case went back to the appeals court, the panel differed with the trial judge on one photo but ordered four released.

All of the parties are challenging different aspects of the ruling and are asking the high court to step in.

FOIA allows the government to withhold documents that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." But Favish claims that the exemption only applies to the privacy of the person who is the subject of the documents -- not family members. By expanding the exemption to family members, Favish says, the 9th Circuit ruling will give the government an excuse to hide embarrassing documents in newsworthy cases where disclosure is most warranted.

The Foster family, represented by James Hamilton, a partner at D.C's Swidler Berlin Shereff Friedman, argues that Favish should have been required to submit "compelling evidence of governmental misconduct to warrant overriding privacy interests implicated by such records." Hamilton asserts the Foster family has already experienced "acute distress" over the leaked release of one death-scene photograph -- showing Foster's hand holding the gun that killed him -- that appeared in Time magazine.

The independent counsel, represented by the solicitor general's office, says the privacy issue needs to be resolved. Its brief notes that all the circuit courts that have ruled on the issue say the privacy exemption of FOIA extends to close surviving family members.

But the government urged the Supreme Court to hold the Foster cases pending the outcome of ATF v. City of Chicago, No. 02-322. That case, scheduled for argument March 4, also involves interpretation of the privacy exemption of FOIA -- this time in the context of firearms data kept on gun owners. Both the Foster family and Favish argue that the issues in the Chicago case are different enough that the Court should grant review of the Foster cases without delay.

OTHER CASES UP FOR REVIEW

• Casino Association of Louisiana v. Louisiana, No. 02-466. Whether a ban on campaign contributions by casino industry interests violates the First Amendment.

• United States v. Banks, No. 02-473. Whether law enforcement officers violated the Fourth Amendment when they entered an apartment in a search for illegal drugs only 15 to 20 seconds after knocking and announcing their presence.

• Alaska Department of Environmental Conservation v. Environmental Protection Agency, No. 02-658. Whether the EPA may second-guess state permit decisions under the Clean Air Act.

• Silver v. Commack Self-Service Kosher Meats Inc., No. 02-675. Whether New York violates the First Amendment's establishment clause by defining and enforcing Kosher food standards.

• Archer-Daniels-Midland Co. v. Dellwood Farms Inc., No. 02-692. Whether adverse inferences can be drawn when a nonparty in a civil case invokes the Fifth Amendment right against forced self-incrimination.

• Moore v. Detroit School Reform Board, No. 02-711. Whether Detroit's move from an elected to an appointed school board violates the federal Voting Rights Act.

• Steele v. Industrial Development Board of Metropolitan Government of Nashville and Davidson County, No. 02-737. Whether a low-interest loan to a sectarian school, funded by tax-exempt revenue bonds, violates the First Amendment establishment clause.

• Raytheon Co. v. Hernandez, No. 02-749. Whether an employer's policy against rehiring former employees who were fired for misconduct violates the Americans with Disabilities Act when applied to successfully rehabilitated drug addicts.

• Sun Prairie v. McCaleb, No. 02-751. Whether a non-Indian lessee of Indian land has standing to challenge a Bureau of Indian Affairs decision to void the lease.

• Barnhart v. Thomas, No. 02-763. Definition of "disability" needed to qualify for Social Security disability insurance.

• California v. Paige, No. 02-765. Use of statistical evidence to prove disparate-impact employment discrimination case.

• BellSouth Advertising & Publishing Corp. v. Tennessee Regulatory Authority, No. 02-783. Whether the First Amendment allows state regulators to require phone companies to display the names and logos of competing companies on the cover of telephone directories.

• Pharmaceutical Research and Manufacturers of America v. Medows, No. 02-869. Whether federal Medicaid law pre-empts a Florida prescription drug rebate program.

• Advanta Corp. v. Riseman, No. 02-882. Whether the Seventh Amendment right to a civil jury trial is violated when a judge overturns a jury damage award.

• Three O Realty v. New York State Urban Development Corp., No. 02-909. Whether a pretextual finding of blight satisfies the Fifth Amendment requirement that a government taking of private property be for "public use."

• Women's Choice-East Side Women's Clinic v. Newman, No. 02-935. Challenge to Indiana law requiring women to receive information necessary for informed consent for an abortion 18 hours before the procedure.

• Board of Education of Pawling Central School District v. Schutz, No. 02-946. Tuition reimbursement under the Individuals with Disabilities Education Act.

This column seeks to identify cases on the Supreme Court's conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.'s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. Goldstein does not otherwise participate in the preparation of this column.


TOPICS: Crime/Corruption; Government; News/Current Events
KEYWORDS: favish; foia; supremecourt; vincentfoster
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The article errs by stating that I am a sole practitioner. I am a full time employee of a law firm in Los Angeles. But I am doing this Foster case without that firm. Also, I live in Santa Clarita, not Santa Clara.

Regards,

Allan J. Favish
http://www.allanfavish.com

1 posted on 02/14/2003 8:44:38 PM PST by AJFavish
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To: AJFavish
Keep up the excellent work Allan!
2 posted on 02/14/2003 8:51:14 PM PST by Registered
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To: AJFavish
In one case, a government official dies from unnatural causes and the cause of death, a question of serious legal significance, can be verified or disputed based on this evidence gathered at the scene by other government employees using tax dollars.

In the case of gun registrations, gun owners are compelled by unConstitutional laws to surrender personal information in order to exercise their rights and anti-gunners, motivated by political biases, wish to deprive law-abiding citizens of their privacy.

These cases have little similarity that I can see.

3 posted on 02/14/2003 8:56:48 PM PST by William Tell
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To: AJFavish; Registered; William Tell
Allan, you are the grindstone in the hyperbole "the wheels of justice grind slow but exceeding fine".

I again refer to the three decades plus of FOIA efforts by Harold Weisberg to obtain true response from a series of officials and agencies.

All such efforts, and specificaly yours, result in a bright light exposing cockroaches.

The snide bias of the above article is typical of the subject of Ann Coulter's Slander: Liberal Lies About the American Right, Regnery, 2002.

The flip snippet that murder is Favish's "best guess" is just crap.

Anyone who's seen the real reporting on the case, e.g. Chris Ruddy's The Strange Death of Vincent Foster, Free Press, 1997; Ambrose Evans-Pritchard, The Secret Life of Bill Clinton: the unreported stories, Regnery, 1997, knows the crime scene polaroids which IOC investigator Miquel Rodriguez had the Library of Congress' photo service restore show a point-blank small-caliber wound under Foster's right jaw.

The murder of the highest ranking Federal official since JFK was covered up--precisely by the likes of Hamilton, a Webb Hubbell shill jammed into the breach on day one.

Of course the author's intentional errors of fact are part and parcel of his editorial slant: "nothing to see here, just another conspiracy nut".

As with the case of the impeached president for whom the depressed Foster was silenced, evidence has been suppressed.

Petitioning for its release is in the interest of a free republic, while distortion of statute to conceal it is not.

It is an obscene display of hypocritical hand-wringing for Hamiliton, Anthony and the rapidly remarried widow to allege distress from release of such evidence.

The only distress will be to the real conspiracy nuts--those who arranged the murder of Foster ten years ago.

4 posted on 02/14/2003 9:20:37 PM PST by PhilDragoo (Hitlery, das Butch von Buchenvald)
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To: AJFavish; Plummz; leadpenny; basil; aristeides; thinden; Wallaby; Askel5; Uncle Bill; Boyd; ...
Good show Allan.
5 posted on 02/14/2003 9:24:43 PM PST by Fred Mertz
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To: AJFavish
Who in the public would WANT to see those photos? Too gruesome. I guess just private investigators. My favorite bumper sticker was on the back of a pickup in a trailer park: "VINCE FOSTER WAS MURDERED".
6 posted on 02/14/2003 9:26:30 PM PST by graycamel
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To: AJFavish
It would be incredible to see the truth finally get out and, if it does, it will be all to your credit :-)

You, sir, might be the single most important person standing between Hillary and another lease on the White House! The country would owe you a debt that will last through the ages...

Tammy
7 posted on 02/14/2003 9:29:14 PM PST by Tamzee (There are 10 types of people... those who read binary, and those who don't.)
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To: Fred Mertz
Could you add me to your ping list for these articles? I had no idea the Foster investigation was going on, but I'm certainly glad it is.
8 posted on 02/14/2003 9:35:43 PM PST by reformed_democrat
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To: AJFavish
Thank you for your tenacity in this case.
9 posted on 02/14/2003 9:40:59 PM PST by JudyB1938
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To: AJFavish
Thanks for the post and your staying power. Good luck in the upcoming days.
10 posted on 02/14/2003 9:50:45 PM PST by Balata
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To: AJFavish
Yep, and we're supposed to accept EVERYthing they print as fact. Typical.

Good Job Allan - remember...evil prospers when good men do nothing.

*Thanks for doing something!

11 posted on 02/14/2003 9:51:43 PM PST by NordP (So happy there's adults in the White House, again!)
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To: graycamel
My favorite bumper sticker was on the back of a pickup in a trailer park: "VINCE FOSTER WAS MURDERED".

I saw a better one... on the kitchen wall at Grover Norquist's house in Feb '97:

"If Vince Foster had a gun, he'd be alive today."

12 posted on 02/14/2003 9:54:57 PM PST by LurkerNoMore!
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To: Yankee66; Code Name Mo; bytor
Ft Marcy Park ping
13 posted on 02/14/2003 9:56:39 PM PST by LurkerNoMore!
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To: LurkerNoMore!; AppyPappy
I think AP has an interest in this too.
14 posted on 02/14/2003 9:58:25 PM PST by Fred Mertz
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To: PhilDragoo
The flip snippet that murder is Favish's "best guess" is just crap.

In all fairness I did say to the reporter that it was my "best guess". I don't know the truth, that's why I want the photos. But I do agree that the "conspiracy theorist" remark, which is what the opposition lawyers say in their briefs, made it seem like that is what the reporter was calling me.

15 posted on 02/14/2003 10:01:51 PM PST by AJFavish
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To: AJFavish
Keep it up Bud. Great job.

Nam Vet

16 posted on 02/14/2003 10:22:37 PM PST by Nam Vet (Rooting for 'Big Al Sharpton', Savior of the Dims. (America's Mugabe?))
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To: LurkerNoMore!

17 posted on 02/14/2003 10:31:07 PM PST by lorrainer (You have the right to remain silent, bill. Please do.)
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To: AJFavish
What's your goal?
18 posted on 02/14/2003 10:37:51 PM PST by ArneFufkin
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To: ArneFufkin
My goal, if I was as smart and tenacious as Mr. Favish, would be to see the pictures and have them viewed by experts in order to determine if there's anything in them to either verify the government's claim that he committed suicide, or disprove it.

Viewing the pictures could give some clue as to where the bullet wound was located, if it's true that there was only a small trickle of blood, the position of the body and the extremities--there were a lot of inconsistencies in the information the public was given about Vince Foster's death. The actual photographs taken at the scene of the crime, photographs which have mysteriously shrunk to just a handful, in itself strange, as Vince Foster was a high level employee at the White House and even regular people who are killed in pedestrian/vehicle accidents have 20, 30, 50 photos taken at the scene, all angles, all directions, some from near, some from far, some of the surrounding area, some with regular cameras, some with digital cameras, some with Polaroids--strange don't you think about the dearth of photos of the scene of the "suicide?" (Is this a long sentence, or what?)

I don't know about anyone else, but Vince Foster seemed to me to be a basically good guy, maybe he wasn't, he sure hung out with a bad crowd, but I want to know the truth.

"And the Truth shall set you free."
19 posted on 02/15/2003 12:07:30 AM PST by Auntie Mame (Let us endeavor so to live that when we come to die even the undertaker will be sorry.--Mark Twain)
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To: AJFavish
You're doing a great job, Allan. I think Vince Foster is the key to unlocking the power of the Clintons. There is no question that he was murdered, that it occurred on WH grounds, and that a massive cover-up took place. Hillary even took place in searching his office before investigators could do their job.All of the WH exterior cameras--no videos of that day have been produced--that in itself was a serious security breach that was never fully investigated.The topic has been off-limits since day one, and anyone who asks questions is demonized and steered away.

Hillary is in this up to her eyeballs.

Anyway, we are in your debt for your tenacity on this murder.
20 posted on 02/15/2003 12:23:19 AM PST by exit82
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