Privacy, access at odds in Foster autopsy case

WASHINGTON - On the FBI evidence sheet, the photographs are described in the antiseptic words of a detective.

"VF's body taken from below feet ... VF's body focusing on right side and arm ... VF's body - looking directly down into face."

They are photographs of a dead man.

On Wednesday, the U.S. Supreme Court will hear arguments in an unusual case about whether the public should be allowed to see them.

The case centers on 10 photos of Vince Foster, a presidential aide whose body was found in Fort Marcy Park in the Washington suburbs in 1993. Investigators determined Foster committed suicide, but some amateur sleuths believe he was murdered.

The court has been asked to decide if Foster's widow and sister have a privacy interest in the photos. If the court determines they do, the justices must weigh those rights against the public benefit from releasing the photos.

Allan Favish, a Los Angeles lawyer who has spent years challenging the government's investigation of Foster's death, says the public should be able to see the photos to determine if federal agencies botched the inquiry.

"I want these photos to be looked at by people who understand them and can determine what happened" to Foster, he said.

Favish said the case could have a far-reaching effect on the Freedom of Information Act, which governs public access to federal documents. If the court agrees with him that privacy rights do not extend to relatives, Favish said, "it will open up a lot more documents to be available to the public and the press."

Foster's widow and sister oppose the release of the pictures. They say their families were traumatized by a published photo of Foster's hand holding the gun. They call Favish a "conspiracy theorist" and say his "ghoulish attempt" to publicize more photos would cause the families further pain and sorrow.

Lisa Foster Moody, the widow, said in a court filing that, "I did not even open Vince's casket for fear of seeing him distorted by the autopsy. I surely cannot bear seeing him lying on the ground in Fort Marcy Park with blood stains on him."

Foster, like his friend Bill Clinton, was born in Hope, Ark.

He was a childhood friend of Clinton and, when Foster joined the Rose Law Firm in Little Rock, he worked with Hillary Rodham Clinton.

After Clinton was elected president in 1992, Foster went to work at the White House as deputy counsel to the president. His duties included handling the first lady's legal matters and responding to the controversies about the White House Travel Office.

Foster was under pressure from his work and told people he was depressed. He wrote he "was not meant for the job or the spotlight of public life in Washington. Here, ruining people is considered sport."

At the park, a gun was in his right hand, which had gunshot residue, according to documents. Police found no signs of a struggle.

Detectives took dozens of photos. Most were documentary pictures of ordinary things such as Foster's Honda Accord, the gun, the dashboard of his car and his eyeglasses. But they also took photos of the body, including close-ups of Foster's head.

Five separate investigations - by the U.S. Park Police, independent counsel Robert Fiske Jr., two congressional committees and independent counsel Kenneth Starr - determined Foster committed suicide by shooting himself in the head.

But some people are not convinced. They say someone murdered Foster to keep him from revealing derogatory information about the Clintons.

Favish requested the photos from the Office of Independent Counsel in a Freedom of Information Act request in 1997. The office denied the request under a federal exemption to protect "personal privacy."

Favish, acting as his own attorney, has won partial victories from lower courts, but he and the independent counsel's office appealed to the Supreme Court. The justices will hear arguments in the case on Wednesday.

Mary Roach, author of the book Stiff: The Curious Lives of Human Cadavers, says people have visceral reactions to photos of dead people.

The cover of Roach's book shows human feet with a toe tag, but the feet belong to a live person who posed for the cover. An artist even touched up the photo to make the feet look better.

"Not a single book would have sold if we used real cadaver feet," Roach said. "They are not attractive - dead people."

Photos of mangled bodies are even more upsetting, she said.

"When it becomes a jarringly gruesome or brutal dead body, it is almost pornographic," Roach said. "You are crossing some sort of decency line."

Attorneys for Foster's widow and sister say releasing the photos would be a "highly offensive intrusion" into the family's privacy.

Publishing them "is the modern equivalent of putting the body itself on public display - an act that since ancient times has been regarded as a highly offensive intrusion on family rights," they wrote in their Supreme Court brief.

It doesn't matter whether the photos show gruesome details, the attorneys say. The family would be harmed by seeing any pictures of the body.

A photograph of Foster's hand holding the gun was published by Time magazine and broadcast by ABC News. His widow said the family was "horrified and devastated by the photograph."

The dispute over the Foster photos is similar to a Florida case involving autopsy pictures of NASCAR driver Dale Earnhardt, who was killed in a crash at Daytona International Speedway in February 2001.

The Orlando Sentinel and other newspapers sought access to the photos under the state's public records law, saying they wanted to determine if safety devices could have prevented Earnhardt's death. The newspapers and Teresa Earnhardt, the driver's widow, eventually agreed to have an independent expert examine the photos.

In the meantime, the Florida Legislature passed a law restricting public access to autopsy photos. That law is being challenged by the Alligator, an independent student newspaper at the University of Florida. The U.S. Supreme Court will decide soon - possibly as early as this week - whether to take the case.

The Sentinel and other newspapers have not joined the Alligator in the case because they agreed to the compromise with Teresa Earnhardt, to let the expert examine the photos. But Tom Julin, the Alligator's attorney, said other newspapers and press groups are likely to support the student newspaper if the court agrees to hear the case.

Joe Black, editor of the Alligator, said the newspaper sued to protect the public's right to see photos from a government investigation.

"We do not want to publish the photos," Black said. "Our intent is that autopsy photos should not be sealed."

Julin said autopsy photos should be open records to allow independent research into how people died. The Earnhardt photos were never released, but the coverage of his death helped persuade NASCAR officials to mandate better safety equipment, he said.

"This is not really a case about the dead, but about the living - and helping the living to learn from others who have died," Julin said.

Teresa Earnhardt agrees with Foster's widow that photos of the dead, whether from death scenes or autopsies, should not be public.

The Earnhardt attorneys wrote in a court filing that "Today, entire Internet sites are devoted to the exploitation of death scene photographs, autopsy photographs, crime scenes and anything else available. Nothing is private and nothing is sacred."

Kristen Bonnett, daughter of NASCAR driver Neil Bonnett, who was killed in a 1994 crash, testified before a Volusia County Circuit Court in the Earnhardt case that she was disgusted when she saw photos of her father's body from a Web site. She said her father's body was "butt naked, gutted like a deer, staring me in the face."

Favish, who has not been allowed to see any of the Foster photos pending the appeal, says if he wins the case, he will post the photos on his Web site, www.allanfavish.com Then people can decide for themselves how the presidential aide died.

He says photos of the bullet wounds might indicate whether Foster killed himself. Favish says he believes Foster was probably murdered.

Favish said the key issue for the court to decide is whether privacy rights about the photographs extend to Foster's family.

He says the law makes no mention of privacy rights extending to relatives, so he does not believe the family can stop the public from seeing the photos.

"There is no information about any of the family members in these photos," he said. "It is only information about Vince Foster."

He acknowledges it would be painful for the family members to see the photos.

"I don't dispute (that they would be upset)," he said. "But I'm saying even if they would, the public interest here outweighs their interest in avoiding that grief."

- Staff writer Bill Adair can be reached at adair@sptimes.com

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