Judge Explains Tossing Out Suit Against N.Y. Times
Columns on Anthrax Attacks Called Hatfill a 'Likely Culprit' but Also Said He Could Be Innocent

By Jerry Markon and Allan Lengel
Washington Post Staff Writers
Friday, February 2, 2007

A series of New York Times columns that explored whether a former Army scientist was responsible for the 2001 anthrax attacks were "cautiously worded" and asserted that the scientist could be innocent, a federal judge wrote in explaining why he decided to dismiss a lawsuit against the paper.

Columnist Nicholas D. Kristof did not act with malice and did not believe his columns about Steven J. Hatfill were false, according to the opinion by U.S. District Judge Claude M. Hilton in Alexandria. Last month, Hilton said he would throw out -- for the second time -- the defamation suit Hatfill filed against the paper. An opinion explaining his reasoning was released Tuesday.

Although the columns identified Hatfill as a "likely culprit" in the deadly anthrax-spore mailings, Kristof "made efforts to avoid implicating his guilt," Hilton wrote. "Mr. Kristof reminded readers to assume plaintiff's innocence, and highlighted the fact that plaintiff was viewed by his family and friends as a patriot who could not have perpetrated the crime in question."

The opinion weighs heavily on the side of Kristof, who has been fighting the lawsuit that Hatfill filed in 2004. Hatfill accused the paper of defaming him and ruining his reputation in the columns. Authorities have identified Hatfill as a "person of interest" in the anthrax mailings that killed five people and sickened 17, but no one has been charged.

Kristof said last night that he was "really pleased that the judge recognized the importance of this kind of reporting" and called it "terrific to have a judgment that protects journalism at a time when the press has had a fair number of rulings against it."

The columnist said he was surprised at the "burden" of fighting a lawsuit. "There are just hundreds of hours that I've had to spend and vast amounts of money the Times has had to spend," he said.

Mark A. Grannis, an attorney for Hatfill, said the opinion "is more or less what we expected, given the judge's earlier statements." He said Hatfill will appeal and "expects to prevail."

Hilton's opinion recounted parts of the government's investigation of Hatfill and said FBI searches of his apartment, his car and a condominium owned by his girlfriend recovered among other things "a spinner flask of anthrax stimulant" and a container of Cipro, an antibiotic commonly prescribed for anthrax. Hatfill had previously said the Cipro was for a lingering sinus infection.

Another attorney for Hatfill, Thomas Connolly, said yesterday that the stimulant was "a pesticide that can be purchased at any hardware store in America" and that Hatfill used it to train first responders in identifying a biological agent like anthrax. Hatfill had provided briefings to government officials and law enforcement agencies about biological weapons.

In the 2002 columns, Kristof said the FBI had failed to aggressively pursue a scientist he first identified as "Mr. Z." He wrote that the biodefense community had called Mr. Z a "likely culprit," partly because the scientist was familiar with anthrax.

Kristof later acknowledged that Hatfill was Mr. Z and wrote that Hatfill deserved the "presumption of innocence."

Hilton first threw out the case in 2004, ruling that Kristof accurately reported that the scientist was a focus of the FBI probe.

The U.S. Court of Appeals for the 4th Circuit reinstated the suit in 2005 and said Kristof's columns could be read as blaming Hatfill for the attacks.

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