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Court upholds challenge to death row interview ban

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Jan. 17, 2008  ·   A federal policy prohibiting death row inmates from conducting face-to-face interviews with reporters might have…

Jan. 17, 2008  ·   A federal policy prohibiting death row inmates from conducting face-to-face interviews with reporters might have been enacted for political rather than safety reasons, the U.S. Court of Appeals in Indianapolis (7th Cir.) ruled on Tuesday.

The three-judge panel sent the case back to the trial court, which had upheld the Bureau of Prisons’ (BOP) rule banning face-to-face interviews.

David Hammer, then a prisoner on death row, sued various Bureau of Prisons officials in 2001, after he was denied face-to-face interviews with the media. Between August and December 1999, Hammer conducted three in-person interviews at the prison he was housed at in Terre Haute, Ind. But, in 2000, he learned the prison wouldn’t allow him to speak in-person to members of the press.

The new rule was put in place after fellow death row inmate Timothy McVeigh spoke about the Oklahoma City bombing with 60 Minutes in March 2000. In response to the interview, then-Attorney General John Ashcroft and former BOP Director Kathleen Hawk-Sawyer announced a blanket media policy banning all federal death row inmates from giving face-to-face interviews with reporters.

The policy also banned inmates from talking to the press about other inmates, which created an especially difficult challenge for Hammer, since he was placed on death row for killing a fellow prisoner.

The district court dismissed Hammer’s initial suit at the pleading stage, but the appeals court reversed and sent the case back for review. The district court subsequently dismissed a number of Hammer’s claims before granting summary judgment to the defendants.

Back before the appeals court, Judge Llana Rovner again sided with Hammer, noting that a jury must decide whether the media policy was a result of negative press coverage or a valid safety and security concern.

“Ashcroft explained that his distaste for the content of interviews given by death row inmates was the reason for the policy,” Rovner wrote. “That is direct evidence of the actual motivation, and it creates a genuine issue of material fact as to whether (former warden Harley) Lappin was motivated by a desire to prohibit a disagreeable viewpoint or to advance prison security.”

Stephen Key, general counsel for the Hoosier State Press Association, which represents Indiana newspapers, said that although this is only a preliminary victory, he remains hopeful that the policy will be changed.

“It was the speech issue that prompted the ban, and not the security issue that was raised at a later date,” Key said. “If that’s the case, we feel that the courts will rule that the ban should be lifted.”

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case, which was joined by the Hoosier State Press Association and the Society of Professional Journalists, urging the court to overturn the trial court’s decision.

(Hammer v. Ashcroft, Media counsel: Chad E. Bell, Jenner & Block LLP, Chicago)Amy Harder

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