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Monday, Sep. 16, 2002

Dr. Steven Hatfill is a former federal scientist at Louisiana State University's biomedical research and training center. He recently spoke out against the suspicions cast upon him by the Justice Department - which has referred to him as a "person of interest" in the anthrax investigation - and, he says, by fellow scientist Barbara Hatch Rosenberg (who denies naming him as a possible suspect).

During his press conference in August, Hatfill proclaimed, "I am a loyal American and I love my country." He also stated flatly that "I had nothing to do in any way, shape or form with the mailing of these anthrax letters. It is terribly wrong for anyone to contend or suggest that I have."

If Hatfill is indeed innocent, as he so passionately insists, then he might want to borrow a page from the playbook of accused-but-then-exonerated Olympic bombing suspect Richard Jewell - and go to court to sue the media that are reporting the government's accusations for libel.

Granted, Hatfill is highly unlikely to win the libel suits, especially because, in the wake of the famed Jewell case, the media is much more careful about reporting accusations by the government. But he might be able to at least use the suits to gather needed information about the claims against him, and to convince the public and the media that he is probably innocent.

Why Libel Suits Are Necessary to Clear Hatfill

The Administration's current information blackout means that we - and Hatfill - are unlikely to learn the evidence against him prior to an indictment. Indeed, we probably won't learn it even if there is an indictment.

Even in the ordinary criminal cases, the government seeks to maintain the element of surprise by telling the accused as little as possible about what it knows and believes. From the government's point of view, that make sense, but it is often carried to an extreme in a way that undermines the maxim that the government wins when justice is done - not when a conviction is handed down. And with Attorney General Ashcroft in charge, in the midst of the "war on terrorism," even less information than usual is likely to be available.

Filing libel suits could substantially aid Hatfill, if he is innocent, by allowing him to procure information to which he might never otherwise have access. At the same time, such suits are unlikely to put the media in much jeopardy because the legal standards are demanding, and Hatfill is therefore unlikely to prevail.

Granted, the suits may impose financial costs on the media, but the media will benefit, too - for the suits will, in a sense, stand in for the in-depth reportage the government's stance is preventing. After all, discovery in such suits goes both ways.

Thus, if Hatfill files suit, the media defendants would likely be able to investigate every corner of his life and career. (And if Hatfill is guilty, then he will have provided the noose by which the media - and then the government - can hang him.) And both sides should have an incentive to make everything learned in discovery public.

Without such suits, Hatfill - and we, the public - will learn only what the government wants us to learn, and only when they want us to learn it. In some cases, that time may be never - or perhaps a few generations in the future, when documents are declassified and we look back in horror.

In sum, it may be time for Hatfill to turn to the judiciary, as it seems certain that the executive will not release the evidence, if any, against him.

How Libel Suits By Hatfill Would Likely Progress

If Hatfill does sue for libel, then he would have to seek discovery against the media, which would then seek to protect its confidential sources. (In an earlier column, I discussed the law that would likely apply and why it is important to protect such sources).

From that material, Hatfill would find out the substance of the evidence against him, which would probably include the same information that the sources told the government. He would likely find out not only the back-up for what had been printed, but also details that may not have been printed by the media, perhaps because they could not be verified. Hatfill might also be able to figure out, for example, whether the media, in covering the case, was primarily relying on government sources, or on the claims of outside individuals.

In short, Hatfill would no longer be proceeding blind. He would at least have a place to begin in trying to make the case for his innocence, and he would be able to take on the sources' claims point by point, not simply with the broad insistence on his innocence he has so far offered.

Again, Hatfill probably would not win any of these suits, given libel law's demanding standards and the media's scaled-back post-Jewell approach. And he should not win them - for our society needs to be able to have its media report on government allegations, even pre-indictment.

But if Hatfill were allowed to proceed to the discovery stage in any of the suits, then, armed with new information, he would at least have more of a fighting chance in the press. Publicity for the suits might also convince all of us that he is even more serious about showing he is innocent than the press conference indicates.

The Strategy Could Backfire, But Hatfill Seems Probably to Be Innocent.

But what if Hatfill is guilty? Couldn't filing the suits be suicidal - allowing the media to conduct an investigation parallel to the government's? Indeed, couldn't that investigation be very invasive, since Hatfill, by filing the suits, would waive some privacy rights?

The answer to all these questions is "Yes." But the evidence available to the public so far suggests that Hatfill is probably innocent, and thus should pursue this strategy. Indeed, he has pursued other strategies that could have backfired terribly if he were guilty, and they haven't so far.

In his recent press conference, Hatfill claimed, he "never, ever worked with anthrax in my life," and pointed out that he was susceptible to anthrax infection himself, not having had the recent booster shots that would have made him immune. Hatfill also said he had consented to broad FBI searches in an attempt to exculpate himself from any anthrax charges.

Sounds to me like Hatfill is probably an innocent man - either that, or a very stupid one. His claims about the search, his immunization status, and whether he worked with anthrax or not are all provably true or false, according to objective evidence that is not under Hatfield's control.

He also spoke out with persuasive, verifiable evidence in his favor. Of course, even without current immunizations, Hatfill might have handled anthrax despite being vulnerable to infection, and been lucky enough not to get sick - but remember, this is the strain that seeped through envelopes, sickening and even killing mail workers.

And yes, as a government scientist, Hatfill also might have had access to anthrax even if he did not work with it directly - but isn't this material likely to be highly controlled, even for the scientists doing unrelated research in the same facility? If anthrax is under lock and key, then how would Hatfill have gotten the key?

Finally, if Hatfill were indeed the anthrax perpetrator, wouldn't allowing the FBI to thoroughly search places that might contain anthrax traces be an ultra-risky gamble for him? Think of how the tiny particles can, and did, end up anywhere, as shown by the two unexplained anthrax deaths of New York and Connecticut residents - and remember that Hatfill, as a scientist, would be well aware of how quickly, easily, and invisibly anthrax can dissipate.

Furthermore, Pat Clawson, Hatfill's authorized spokesperson, virtually invited an indictment by saying: "If the Justice Department has some evidence on Steve Hatfill, then by all means charge him. But quit destroying his life."

Everyone know that an indictment brings a world of pain with it, so courting one is, to me, a strong sign of innocence (or, again, of monumental stupidity). The guilty try to avoid being indicted at all costs, urging the government to drop charges even before they are filed, or at least seeking a pre-indictment plea agreement if possible.

It is only the innocent - the determined innocent - who tend to invite indictment. Again, it's a good assumption that Hatfill's lawyer okayed this aggressive tactic, and Hatfill's spokesperson went forward with it, precisely because he is innocent.

In short, Hatfill may indeed be guilty, but I doubt it.

Hatfill's Continuing Nightmare: Presumed Guilty, Or At Least Presumed Risky

Despite the fact that his guilt is seeming less and less likely every day, Hatfill's life has continues to be a nightmare predicated on the suspicion that he might be guilty.

Now Hatfill's attorney is demanding that the government find Hatfill another job. He has also asked the government to apologize. Unfortunately, Hatfill is unlikely to get either a job or an apology - and he and his attorney certainly can't make the government offer either one. Nor is public criticism likely to cow Attorney General Ashcroft into backing down - you can say lots of bad things about Ashcroft, but you can't say he doesn't stick to his guns.

However, there is one thing Hatfill and his attorney are free to do on their own: sue the media.

That will give Hatfill a chance to convince us of his innocence. And that chance is what Hatfill deserves. Moreover, we all deserve more information than we are getting, on the Hatfill case and others, if our country is going to keep functioning as the democracy it is supposed to be.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her forthcoming novel Three will be published in the U.S. by Plume Books in June 2003, and in French translation by Actes Sud.

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