4th Circuit reinstates bioterror expert’s suit against N.Y. Times

Friday, July 29, 2005

McLEAN, Va. — A federal appeals court has reinstated a libel lawsuit against the New York Times filed by a former Army scientist who claims one of the paper’s columnists unfairly linked him to the 2001 anthrax killings.

Steven Hatfill sued the Times for a series of columns written in 2002 by Nicholas Kristof that faulted the FBI for failing to thoroughly investigate Hatfill for the 2001 anthrax mailings that left five people dead.

The initial columns identified Hatfill only as “Mr. Z,” but subsequent columns named him after Hatfill stepped forward to deny any role in the killings. Federal authorities labeled Hatfill “a person of interest” in their investigation.

Last year, U.S. District Judge Claude Hilton tossed out Hatfill’s lawsuit, ruling that the columns did not defame Hatfill and accurately reflected the state of the FBI’s investigation.

But a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond overturned Hilton’s ruling yesterday on a 2-1 vote in Hatfill v. New York Times Co. The panel said that Kristof’s columns, taken as a whole, could be considered defamatory. The ruling sends the case back to U.S. District Court in Alexandria for trial.

“A reasonable reader of Kristof’s columns likely would conclude that Hatfill was responsible for the anthrax mailings in 2001,” wrote Judge Dennis Shedd in an opinion joined by Chief Judge William Wilkins.

Shedd acknowledged that Kristof’s columns included assertions that Hatfill enjoys a presumption of innocence. But Kristof also included numerous allegations against Hatfill, including charges that Hatfill failed polygraph examinations, that bloodhounds responded to Hatfill and his apartment and that Hatfill was a prime suspect within the biodefense community itself.

“In describing all this evidence, Kristof’s columns did not merely report others’ suspicions of Hatfill; they actually generated suspicion by asserting facts that tend to implicate him in the anthrax murders,” Shedd wrote.

Shedd’s ruling disputes Hilton’s assertion that the articles accurately reflected the state of the government’s investigation, saying there is no evidence thus far to determine whether the columns were in sync with the FBI probe.

In his ruling, Shedd suggests — but does not explicitly state — that the articles were potentially defamatory even when Hatfill was identified only as “Mr. Z.”

The appellate ruling does not mean that the court necessarily finds merit in Hatfill’s claim; the ruling simply means that Hatfill has a valid case if he can prove his allegations.

Circuit Judge Paul Niemeyer dissented from Shedd’s ruling.

“Nowhere does any column accuse Dr. Hatfill of committing the murders,” Niemeyer wrote. “The columns’ purpose was to put into operation prosecutorial machinery that would determine whether Dr. Hatfill committed the crimes.”

Thomas Connolly, a lawyer for Hatfill, said, “Dr. Hatfill is pleased with the ruling and looking forward to his day in court.”

Toby Usnik, a spokesman for the Times, said, “We are disappointed in the court’s decision but we remain confident in our case. Mr. Kristof’s columns were fair and accurate, and we continue to believe that newspapers need to be able to comment on how investigations — especially one as important as this — are being conducted.”

Hatfill also has filed a separate defamation lawsuit against former Attorney General John Ashcroft and other government authorities that is awaiting trial.

Several news organizations had been subpoenaed in that case, but, according to the Reporters Committee for Freedom of the Press, those subpoenas were withdrawn in May after the government agreed to allow federal employees to testify.

A physician and bioterrorism expert, Hatfill worked in the late 1990s at the Army’s infectious disease laboratory at Fort Detrick, Md.

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