Appeals court reinstates anthrax libel lawsuit

WASHINGTON (Reuters) - A federal appeals court reinstated on Thursday a libel lawsuit by former U.S. Army scientist Steven Hatfill against The New York Times Co. over a series of columns that he said implicated him in the deadly anthrax mailings in 2001.

By a 2-1 vote, a panel of the 4th U.S. Circuit Court of Appeals overturned a federal judge's dismissal of the lawsuit that claimed that columns by Nicholas Kristof published in 2002 defamed Hatfill and caused him emotional distress.

"At this stage of litigation, our sole concern is whether Hatfill's allegations, taken as true, describe intentional and outrageous misconduct. We conclude that they do," the panel said in a 24-page opinion written by Judge Dennis Shedd.

Hatfill, a bioterrorism expert who formerly worked at the Army Medical Institute of Infectious Disease at Fort Detrick in Maryland, has denied any involvement in the mailings of the anthrax-laced letters that killed five people weeks after the Sept. 11, 2001, hijacked plane attacks.

In 2002, law enforcement officials, including Attorney General John Ashcroft, called Hatfill a "person of interest" in connection with the anthrax attacks.

Judge Paul Niemeyer dissented from the ruling. He said none of the columns accused Hatfill of committing the anthrax murders.

He said the columns sent the message that the FBI's investigation was lackadaisical and unimaginative, that the FBI should pursue obvious leads pointing to Hatfill and that Hatfill should be the leading suspect, based on circumstantial, but not any physical, evidence.

If the newspaper does not appeal, the case would go back to U.S. District Judge Claude Hilton in Alexandria, Virginia. In New York, Toby Usnik, a spokesman for The New York Times, said no decision has been made on the next step in the case.

"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," he said.

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/28/AR2005072801478.html

Court Reinstates Hatfill Suit Vs. Times

By MATTHEW BARAKAT
The Associated Press
Thursday, July 28, 2005; 6:51 PM

McLEAN, Va. -- A federal appeals court has reinstated a libel suit against the New York Times filed by a former Army scientist who claims one of the paper's columnists unfairly linked him to the deadly anthrax mailings in 2001.

Steven Hatfill sued the Times for a series of columns written by Nicholas Kristof that faulted the FBI for failing to thoroughly investigate Hatfill for the 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, a federal judge tossed out Hatfill's lawsuit, ruling that the columns did not defame Hatfill and accurately reflected the state of the FBI's investigation.

But the 4th U.S. Circuit Court of Appeals in Richmond overturned the rule Thursday on a 2-1 vote, saying that Kristof's columns, taken as a whole, might be considered defamatory.

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

The ruling sends the case back to U.S. District Court in Alexandria for trial.

Thomas Connolly, a lawyer for Hatfill, said that "Dr. Hatfill is pleased with the ruling and looking forward to his day in court." A physician and bioterrorism expert, Hatfill worked in the late 1990s at the Army's infectious disease laboratory at Fort Detrick, Md.

Toby Usnik, a spokesman for the Times, said the newspaper was disappointed with the 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."

Thursday's ruling acknowledged that Kristof's columns included assertions that Hatfill enjoys a presumption of innocence. But Kristof also included 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," the ruling said.

The ruling disputed the lower court judge'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.

Circuit Judge Paul Niemeyer dissented from the decision.

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

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

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