Appendix — Saxbe v. Washington Post Co.
Supreme Court brief1974
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1973
No. 73-1265
WILLIAM B. SAXBE, ATTORNEY GENERAL OF THE UNITED
STATES, and NORMAN A. CARLSON, DIRECTOR, UNITED
STATES BUREAU OF PRISONS,
Petitioners
— . —
THE WASHINGTON Posr Co. and BEN H. BAGDIKIAN
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT
INDEX
Page
Docket entries 1
Complaint and exhibits 222.0020... cece cece cece cere eee 3
Plaintiffs’ exhibits in support of preliminary injunction ........ 64
Defendants’ exhibits in opposition to preliminary injunction.. 71
Memorandum of March 13, 1972ã222222ů22 „4% 78
Transcript of March 23, 1972, hearing 80
Trial exhibits 222002222 eeec cece fecee cee eeeeeeeeeveeeeeee 232
Plaintiffs’ motion to reopen 20.0.0... ccc hole ececceee ee eeeeeee 265
ii INDEX
Page
Defendants’ opposition to motion to reobpben 276
Memorandum opinion of April 11, 1972 [Appendix A to Peti-
tion for Writ of Certiorari] —..........22222222.22e ec.
Declaration and order [Appendix A to Petition for Writ
Of Certiorariunkkti)))hii cee eeeeeeeeeee
— ̃ vun greatest ͤÄ—ẽͤ—ͤ— — 282
Court of Appeals order or remand [Appendix C to Petition
for Writ of Certiorari]
Transcript of Hearing of November 21-22, 1972 283
Abel Deposition (Pl. Exh. 14) _220022202022222ceeeeoeee eect 478
Machacek Deposition (Pl. Exh. 63) ) 500
Bensinger Deposition (Pl. Exh. 6))))))))0⸗;: ee neen.. 524
Mattick Deposition (Pl. Exh. 660) 573
Government Exhibit 1 612
Government Exhibit 111i 616
Extract from Government Exhibit 10 617
Extract from Plaintiffs’ Exhibit 1177 619
Plaintiffs’ Exhibit 22A _ 22.222 eee 620
Plaintiffs’ Exhibit 29A — 22 eee 622
Plaintiffs’ Proposed Finding of Fact and Conclusions of
Law [Appendix E to Petition for Writ of Certiorari
District Court’s Supplemental Opinion [Appendix B to Peti-
tion for Writ of Certiorari kk
Court of Appeals opinion [Appendix F to Supplemental Peti-
tion for Writ of Certiorarikkk „„
Bureau of Prisons Policy Statements:
351
[111] AFTERNOON SESSION
(2:20 p.m.)
THE COURT: We can go ahead with the Washington
Post case now.
You are calling your psychologist?
MR. CALIFANO: Your Honor, Dr. Gould could not
remain. He had to ge back to New York. But, we have
talked to the Government counsel, and we will put on
Mr. Leland now. And, they put on their witnesses that
have to leave town.
THE COURT: All right.
MR. CALIFANO: We may even make it this after-
noon.
THE COURT: All right.
Then, you will want to out or order take your people
that have to leave town?
MR. KATZ: Yes. I apologize to the Court.
THE COURT: There is no problem in my mind about
it.
MR. KATZ: I made the statement this morning that
we had one witness that was a problem. In fact, we
have two.
THE COURT: You have two.
MR. KATZ: Yes.
THE COURT: I will hear them.
MR. KATZ: Thank you, your Honor.
THE COURT: I will hear them.
MR. WILSON: Mr. Leland.
352
[1121 Whereupon,
TIMOTHY LELAND
was called as a witness, and having been first duly sworn
by the deputy clerk, was examined and testified as follows:
DIRECT EXAMINATION
BY MR. WILSON:
Q State your full name and place of residence for the
record, please.
A My name is Timothy Leland. I live at 220 Dorset
Road in Newton, Massachusetts.
Where are you employed, Mr. Leland?
Boston Globe.
In what capacity?
Assistant managing editor.
How long have you been employed by the Boston
Globe?
A Nine years.
Q Prior to joining the Boston Globe, did you have any
other training or experience in journalism?
A Yes.
Q Would you describe that training?
A I graduated from the Columbia Graduate School of
Journalism in 1961, after which I went to work for the
Boston Globe, first as a general assignment reporter, and
then assigned as a medical editor.
In 1963 I was hired by the Boston Globe as the science
[113] editor.
In 1965 I was assigned to State House Bureau. I be
came the State House Bureau chief in 66.
I was named assistant city editor in 1968. In 1969 I
took the year off and traveled on a traveling fellowship to
Africa, and then served six months at the London Sunday
Times in London, and I served on their investigative team
ealled “Insight,” after which I returned to the Boston
Globe and formed and headed a team called Boston Globe
Spotlight Team.
I was named assistant managing editor in 1970.
OPO PO
353
Q Mr. Leland, just to clarify your testimony, you said
after leaving the Columbia Journalism School you went to
work for the Boston Globe?
A Boston Herald.
Q From there you went to the Boston Globe?
A That is right.
Q Mr. Leland, have you been the recipient of any
awards or prizes as a result of your work in journalism?
A Yes, I have.
Q Would you tell the Court which prizes and awards
you have won?
A In 1968 I was cited for distinguished reporting by
the American Political Science Association. In 1970 I re-
ceived the Pultizer Prize for investigative reporting as
well as the Sigma Delta Chi bronze award for civic serv-
ice, [114] and the United Press International investigative
award, and Rotogravure-Best-Magazine-Story-of-the-Year
Award.
Q What is the Sigma Delta Chi that you mentioned?
A Sigma Delta Chi is the journalism professional so-
ciety.
Q Mr. Leland, you mentioned that after returning
from London in 1970, I believe it was, you formed the Spot-
light Team of the Boston Globe.
A That is right.
Q Would you explain what the Spotlight Team is,
please?
A The Spotlight Team is a four-member full-time unit
engaged in the pursuit of what we think of as active re-
porting as opposed to passive reporting. We at the Globe
have come to the conclusion that newspapers are essentially
and have been essentially reactionary in a true sense of
the word. We tend to react to events that have already
occurred and respond to situations that have taken place
outside of our own activity.
And, we believe that it behooves the press both for its
own individual interest and interest of the public at large
to engage in more creative active pursuit of information,
which is what we are doing at the Spotlight Team.
Q Now, is the Spotlight Team at all unusual in terms
of its concept in American Journalism?
—
A Only insofar as it is a four- member team, which is a
[115] rather large number. Most newspapers have one
or two individual investigative reporters.
We institutionalize it on a full-time basis. We have cer-
tain techniques which are fairly conventional in terms of
investigative reporting at large.
Q Mr. Leland, what has been the type of news story
that Spotlight Team has focused on?
A We are largely concerned with public corruption or
malfeasance incompetence of some degree.
Q Now, you say that you have developed certain tech-
niques which are somewhat distinctive with the Spotlight
Team. Could you describe those, please?
A Well, a typical investigation would begin with a tip
of some sort either by letter or by telephone, and we spend
a good deal of time trying to establish the credibility of
this information by engaging in a face-to-face interview
with the person who is making this information available
to us. And, having done so, if we decide that there is
enough merit and credibility to the information received,
we proceed with the investigation, which breaks down
generally into two parts, one of which is a paper research
—attempt to obtain as much information as we can from
public documents of various sorts, and the second half of
that phase of the investigation is a personal interview
technique, which may take three, or four, or [116] five
weeks, or even as much as three months, in which we at-
tempt to interview as many people as we possibly can and
evaluate or corroborate the evidence that we have obtained
through the records.
Q Now you say that your first step is to have a face
to-face encounter with the source of the tip, is that correct?
A Yes, sir.
Q Why is that important in your operation?
A Well, we are involved in a fairly high priority, high
potency operation. These things take, as I say, up to three
months or four months, and we are not anxious to set out on
a pursuit of this sort without being quite sure that there
is something there.
855
So, it becomes incumbent upon us to prove to our own
satisfaction that this information is coming from a reliable
individual and is credible in every way.
Q Can you illustrate from your experience some ex-
3 of the effect of face-to-face interview with the in-
itial source?
A Les, I can.
Q Would you please?
A There are many examples that come to mind, one of
which would involve the investigation that led to the Pu-
litzer Prize. We had a tip that there was a great deal of
malfeasance and mismanagement involving the Sumner-
ville officials from a [117] source that called us up and
told us that he had given information to the Attorney Gen-
eral’s Office of this sort in Massachusetts, and that had
been about a year previous, and nothing had come of it,
and he would like to come and talk to us.
The Attorney General’s Office in Massachusetts is quite
an effective one. It is quite efficient. We have quite a lot
of regard for it. And, it didn’t appear to us that it was
likely to produce anything that we pursue. But, as we
do in all these cases, as I say, we did ask him to come in,
and we in effect cross-examined him for a period of several
hours one afternoon.
This man appeared to be very rational, very intelligent
and had no particular ax to grind and had some informa-
tion that appeared credible.
So, we made the judgment that we would pursue this.
It took us about three or four months to do it, but in the
end the information we came up with resulted in 120 in-
dictments against 29 individuals, three of whom were for-
mer mayors and various city officials.
Q What has been your experience with the Spotlight
Team in terms of whether the accurate effect of reporting
of news has a critical dependence upon the opportunity for
face-to-face interviews?
[118] THE COURT: Vis-a-vis prisons. I don’t care
about if it is of critical importance on reporting nuclear
energy. I want to know about prisons. That is what I am
concerned about. I am not concerned with the other areas.
—
356
BY MR. WILSON:
Q Mr. Leland, have you had any experience in cover-
ing prisons?
A Yes, I have.
Q Would you describe that experience, please?
A Ihave had a couple. One involved the case of an in-
dividual who pulled his eyes out under drugs in Baltimore.
This particular individual was the son of a Massachusetts
political figure, and we decided to try to come up with a
profile of his experience and how he came to find himself in
jail under these circumstances.
And, one of the things that he alleged was that he had
been very badly mistreated when he was arrested on an-
other issue and had been put in jail, and he had been abused
while he was in jail, and had been deprived specifically
of water the night he pulled his eyes out. And, in a fit of
great physical stress he had taken this step.
We wanted to check this out, of course. We came down
and had long interviews with him. He wasn’t in jail at
the time. He just recently had been released. And, we
also had interviews in jail with his associate or [119] ac
complice of his in a drug world that he came out of.
And, in the course of this face-to-face personal kind of
interviewing, we came to the conclusion that this was a
very unstable, really quite unreliable individual who had
an experience of great trauma in jail. But, we couldn't
find any evidence at least to our satisfaction that it had
been caused from any problems that the police officials had
created for him.
The evidence that we got from him personally was cor-
roborated largely by his friend or associate whom we did
interview in jail.
And, as a result of those particular interviews, when
we came to write the story, we took some pains to down-
credit his own charges of mistreatment in jail.
Q Would you say that in that instance the opportunity
for face-to-face interview in the jail was critical to de
veloping an accurate and effective story?
MR. KATZ: Objection, your Honor.
THE COURT: That is leading.
357
BY MR. WILSON:
Q What was your experience, Mr. Leland, in terms of
the importance of the opportunity for face-to-face inter-
view in the Baltimore jail in that instance?
A Well, I can only say without the chance to interview
this person personally or get a personal feeling for his
[120] credibility, which you can really only do when you
talk to an individual, we probably would have had to go
with his original charges and publish them as he made
them, which we didn’t feel would have been in the best
interest of the prison officials or our responsibility as a
free press.
Q Have you had any other experience with coverage of
prisons or jails?
A Yes, I have.
Q Could you describe that experience?
A Recently we have had an incident at a jail in Massa-
chusetts—Charles Street Jail, which does not fall in the
immediate jurisdiction of Commissioner Boone, whom I be-
lieve this Court has heard testimony from.
This incident of last week involved, as I say, a riot and
has subsequently resulted in allegations of guard brutali-
ty and mistreatment of persons who participated in that
riot.
I, myself, didn’t cover the incident as a working jour-
nalist, but I was serving in the capacity of acting man-
aging editor last week, and was bothered, frankly, in the
way that Boston Globe and other papers in Boston were
forced to present the story, because we were not given an
opportunity to interview the prisoners themselves.
This resulted in our having to print the allegations that
came from the lawyers’ experiences, which were flatly that
[121] they had been badly treated and abused and brutal-
ized. And, the result was rather grim black headlines to
this effect.
I didn’t feel that we were adequately enabled to make
a judgment based on some personal observations in this
connection.
I felt and I feel right now that the rules of that par-
cular jail which prevented us from going in and talk-
5
ing to these people were such that lead to the—contrary
to the interest of the prison officials themselves. i
Q What do you mean by personal observation? You ‘
used that term.
A Personal observations are the kinds of observations
that anybody derives from face-to-face contact. There
may be physical evidence of beating or mistreatment. There
may be just the kind of personal evaluations that you
make from individuals when you are given a chance to
talk to them.
Q So, you are saying that included the fact that you
were unable to talk—the reporters from the Globe were
unable to talk to the inmates in that particular jail?
A That is right, under the regulations of that particu-
lar jail.
Q You said that you did not actually participate in
writing that story or actually doing any on-scene coverage.
A That is right.
Did you play any role at all in the development of
that [122] story?
A Well, as acting managing editor, I was responsible
for the paper’s treatment and coverage of the story.
As I said, we had to go with what we—as they say in
Journalism School, you go with what you have got. If
you don’t have enough to give the thing any depth and
dimension or corroboration, you simply go with the infor-
mation that is available to you at the time.
Q Is it your testimony that you were not satisfied
with what you got?
A That is correct.
Q Mr. Leland, were you in the courtroom this morn-
ing when Dean Fisher testified?
A Yes, sir.
Q Do you recall that I read into the record at that
time two sentences from the Government’s brief in the
Court of Appeals?
A Yes, I do.
Q I will not reread that at this time. I put before you
a copy of that excerpt. I would like to ask you a few
questions based on it. You may take some time to re
view it, if you wish.
358
359
A All right.
Mr. Leland, would a story relating to prison condi-
tions [123] or prisoners’ grievances fall within the pur-
view of the work done by the Spotlight Team of the
Boston Globe?
A Yes, sir.
Q If the Spotlight Team would undertake a story deal-
ing with prison conditions or prisoner grievances, would
you be satisfied—we are talking about the Federal Prisons
and the policy reflected in those sentences relating to the
Federal Prisons—would you be satisfied that you could
develop an accurate and effective story from the sources
of information that are set forth in that excerpt from the
brief?
A No, I wouldn’t.
Q Why is that, Mr. Leland?
A Well, clearly, if you are going to get a three-di-
mentional picture of grievances, you would have to have
some access to the people that are making known these
grievances. As I read this, we would have access only
on a face-to-face basis with the prison authorities, whose
natural inclination would be to deny them or to turn them
aside.
THE COURT: Mr. Leland, let me see if I can get
at more sharply what I think is being put before me.
Here are a group of people that are penned up by or-
ders of judges whom the executive is keeping from talking
to the press, so you don’t have access to them. But, aren’t
there all kinds of situations where your story would be
better if you could really get access in the complete sense
that [124] you would like it.
Certainly you have written stories about Governor
Sergeant up there without talking to him sometimes when
he hasn’t wanted to talk or comment, or you have written
stories about other situations of a governmental charac-
ter where the people involved haven’t let you talk to them.
Isn’t it just the fate of a newspaperman that he just
doesn’t always get access to the total source so to speak.
What is there that is different about this than what
you run into in everyday life in a lot of ways.
—
360
Can you interview people in a home for the retarded?
Take Furnel Home for Retarded in Waltham. They have
some 1800 inmates, I believe. Can you go in there and
interview those inmates about the way they are being
treated, or are you stopped by the authorities?
THE WITNESS: I am not clear, your Honor, what
the regulations are in the Furnel School.
THE COURT: Take an insane asylum. Can you go
into an insane asylum and talk to people?
THE WITNESS: I am not aware that we are not
able to, no.
THE COURT: Are you aware that you can?
THE WITNESS: Presumably it would be a little
more of a problem to communicate with a legally insane
individual, [125] your Honor.
THE COURT: A lot of those people are wholly com-
petent though legally insane. At least, they are around
this town.
THE WITNESS: Of course, as far as the Governor is
concerned, we do have access to him through press inter-
views.
THE COURT: Through his press man.
THE WITNESS: He holds press conferences. We are
given a chance—
THE COURT: Let’s talk about the national scene.
Lots of times you can’t talk to the President. Mr. Ziegler
tells you what he wants to tell you. He may not tell you
what you would like to hear.
I don’t mean that as criticism, but that is just the way
it is.
If you want to go into the intricacies of the military at
a certain point you are met with a stone wall.
You can’t see Mr. Laird. You can only see some as-
sistant’s secretary who says he doesn’t want to comment.
* is the difference between prisons and anything
?
THE WITNESS: You speak of the President. Again,
we do have an opportunity to speak to him.
This regulation here, as I read it, is a flat denial at an?
time of any chance to discuss the matters of personal
—̊
361
[126] grievance with the people that have made the al-
legations.
THE COURT: Is there any other comparable situa-
tion that you know of?
THE WITNESS: I don’t think there are many other
comparable situations.
THE COURT: Does Boston let the police force talk
to you?
THE WITNESS: Sir.
THE COURT: Does Boston let the individual police-
man make allegations to you concerning the way they
have been disciplined or treated by the Commissioner of
Police.
THE WITNESS: Well,—
THE COURT: Or, would they get fired if they do?
THE WITNESS: I don’t believe there is a flat gov-
ernmental policy that they cannot. If we found that there
was such a one, we would be unhappy about it.
THE COURT: I understand that you are unhappy.
I am really not disagreeing with you. You must be aware
of what I have said in this case.
What I am trying to get at is what is so different
about prisons as you see it as a reporter with broad in-
vestigative experience? Is it any different than anything
THE WITNESS: I think it is, your Honor. It is to-
tally different.
[127] THE COURT: How?
THE WITNESS: It is different in the nature of this
stated quite specific and explicit regulation which flatly
denies us access to the people that are making the alle-
gations.
This is a public facility. These people are being sup-
ported by public funds. The people who are given the
responsibilities for keeping them are being paid for by
public tax money, and they should be held accountable for
the treatment and kind of operations that they are pur-
suing.
THE COURT: Well, then, let me pursue that with
you. The FBI is involved in a hijacking situation.
THE WITNESS: Yes
362
THE COURT: You can’t talk to the agents. You
can’t go talk to the agents and say, “Now, tell me, who
gave you the orders? Was there any warning given to
the gasoline truck? Who told you to shoot the tires? Why
didn’t you shoot them sooner?”
They just say, “No.”
THE WITNESS: I would say there are perhaps two
particular aspects to that that would be worth discussion.
One is that you are presenting a situation which is of
an emergency sort. At least I assume that you are talking
about an ongoing hijacking.
THE COURT: Or, after it is over.
THE WITNESS: Well, the FBI has been prepared to
explain [128] and discuss their activities.
THE COURT: So is the warden of a prison. The
warden of a prison will give you a very full statement
of what happened. The warden will give you a very full
statement often of a somewhat exculpatory character.
THE WITNESS: But, there is an adversary relation-
ship in prisons that is perhaps missing in hijackings.
We are not talking about the allegations of the warden
in the jail situations. We are talking about the allega-
tions made by the prisoners themselves. These are the
people we are trying to talk to, not the wardens.
In fact, we can talk to the warden. That is the prob
lem. The warden has his own interest at stake. He is
subject to all of the inclinations of human nature that
most individuals are. When pressed under suspicion of
malifeasance or some kind of incompetency, he is ob-
viously going to deny them flatly.
If we as press people who are trying in a responsible
way to get a full dimensional picture of these charges— -
we are absolutely and hopelessly handcuffed if we can’t |
go to the other side. It is an unfair situation. It is an
infringement both on our own abilities as a free press
and not in the interest of the public at large which has
a stake in the wellbeing of the institutions that they are
[129] supporting.
THE COURT: I have tried to analyze it in my own
mind. The only distinguishing factor that I can see is
that in other places in our society, if an individual de
363
sires to bring to the attention of the press a grievance
of some kind, regardless of the rules pertaining to him,
he can do so. He may forfeit his job, or he may even
be subject to criminal penalties, if he breached security
or something of that kind. But, he had his own right to
do that.
THE WITNESS: That is true.
THE COURT: And, take the consequences.
And, I can’t think of any other situation in our society
where citizens are prevented from having any choice
about the matter whatsoever.
THE WITNESS: I can’t either.
THE COURT: I mean, if a soldier talks, he will be
disciplined. He may. be shot, but he has still the oppor-
tunity to make his choices. And, I can’t think of any
place else in our society where an individual isn’t given
that choice.
I have been wondering whether perhaps that is the dif-
ferentiation, whether it is significant or not, I don’t know,
but the differentiation between this.
The mayor’s secretary, for example, up in Boston, or
some other official’s secretary knows she is going to lose
her job if she tells you about some kind of bribe or some
kind [130] of corruption that she has observed, but she
has that choice, doesn’t she?
THE WITNESS: That is true.
THE COURT: And, the prisoner has no choice.
I don’t know whether that is the only difference, but
it seems to me that is the thing that makes this of par-
ticular concern, because there is no access even where the
person who wishes to present to the press a grievance
has any alternative but silence, except a letter.
THE WITNESS: Or violence.
THE COURT: Except the letter. He can write. Now,
what is wrong with his being able to write?
THE WITNESS: Well, writing is a very ineffecient
and inadequate way of conveying—of communicating.
We know that an interview is a dynamic process.
A police detective seeking information from a suspect
does not communicate by mail. If he did so, he would
find it extremely ineffective.
—
36⁴
You obviously in the course of an interview—it is a
dynamic process. It goes off in many avenues and can
be pursued instantly on a face-to-face confrontation.
By mail, obviously, presuming that the inmate can
communicate by mail, which I think is somewhat question-
able, you don’t—you simply don’t get the depth and scope
of information that you do in a face-to-face interview.
[131] You also don’t get that ability which I have re
ferred to before to evaluate the credibility of the indi-
vidual who is making this allegation.
In fact, you don’t even know whether the individual
who is writing this letter is the one that is making the
allegations. It could be somebody entirely different.
We are operating in limbo, really, when we are de
pendent upon something that comes from somebody when
we can’t even establish who wrote the letter, assuming
that is is comprehensible to begin with.
MR. WILSON: You have asked my questions, your
Honor. I have no further questions.
THE COURT: I didn’t mean to do that, Mr. Wilson.
MR. WILSON: It is perfectly all right.
CROSS EXAMINATION
BY MR. KATZ:
Q Mr. Leland, other than the two matters that you
discussed earlier in your direct, you have had no expe
rience in prison journalism, have you?
A None except those two.
Q Have you ever actually visited a prison?
A Yes, I did have that interview in the Baltimore
prison that I referred to.
Q What prison was that?
A A prison in Baltimore. I am not sure. It was a big
1132] fortress-like affair down in the middle of Balti-
more.
Baltimore, Maryland?
A Yes.
Q Now, with respect to—
365
THE COURT: Do you send reporters in to interview
the prisoners?
THE WITNESS: In this particular instance—
THE COURT: No, I mean, have you had prison
stories where you were sending reporters into prisons?
THE WITNESS: Yes, we have from time to time.
We have a lot of other aspects of society that we are in-
terested in. This is only one of them.
BY MR. KATZ:
Q Now, your Spotlight Team, or whatever you re-
ferred to earlier, that has not gone into the prison situa-
tion, has it?
A Well, I was operating as a member of the Team
when I did this interview in connection with this boy
that pulled his eyes out.
Q When was this?
A I believe this was in the spring of 1970.
Q Now, the people that you interviewed in the jail
were others, not the gentlemen that pulled his eyes out?
A Well, I did interview the prisoner that pulled his
eyes out. He was not in jail at the time
Q He was not in jail.
[183] A The person that I interviewed in jail was
supposed to have beén arrested at the same time that
he was. The man that pulled his eyes out had been
let out of jail because of that.
Q What was your purpose in interviewing this gentle-
man, sir?
A The accomplice?
Q Yes.
A Well, actually to try to establish from his point
of view how—what kind of an individual this man was,
and whether he was a reliable person, or whether he was
paranoid or freaked out or just how good a source he was.
Q Could you not have achieved the same purpose by
finding out who this man’s friends were who were not
in jail and interviewing them?
A I am sorry.
Q I say, could you not have achieved the same purpose
that you wanted to accomplish by interviewing the man
—
366
in jail by learning the names of friends of the fellow
who pulled his eyes out who were not in jail and asking
the same questions of them?
A I suppose it is possible. It just turned out that
this was his closest friend, and he happened to be in jail.
Q Now, the Charles Street Jail incident—this was
last week?
[134] A Yes.
Q You did not personally cover this story?
A No, I didn’t.
Q How did this matter come to your attention ini-
tially?
A Well, as acting managing editor, it came to my
attention in the course of a news conference where this
information was conveyed that there had been a riot at
this jail.
Q Iam sorry, sir. Could you speak up a little bit. I
have trouble hearing you.
A The information came to me in the course of a
news conference, which is a time of day when stories
are presented to the editor. I was acting editor at the
time. It came to me in that interval.
Q By-news conference, you mean a news conference
held by the warden over there?
A No.
THE COURT: The newspaper’s morning conference
to determine the stories they would cover, and what
stories they would play up, and who would take what as-
signment. That happens with every newspaper every day.
That is what you are talking about, isn’t it, sir?
THE WITNESS: Yes, sir.
BY MR. KATZ:
Q Very well. The question I asked though is how did
you first learn that something was going on in the Charles
Street [135] Jail?
A I can’t remember whether in the course of the day
I had gotten a report from a reporter, or whether it came
at that conference that I was referring to. But, at some
point in the day, I was told that there had been a riot at
the jail.
Q What did you do?
367
A I indicated to the city editor we should do our
best to get as much information about this riot and the
background of it and why it occurred as possible.
Q And, in order to accomplish that, what did you do?
A What did I do?
Q Yes. Did you send people out?
A The city editor then assigned reporters to that job.
Q And, what did these reporters do to cover the
story?
A Thy wink & Ge and listened to a press con-
ference held by the warden or the sheriff actually, who
acts as warden, and also to the lawyer who represented
the inmates inside.
Q Were you permitted to enter the jail?
A I am not clear whether the press conference itself
was held inside the jail. I believe it probably was. Cer-
tainly not within a cell block or within the vicinity of the
prisoners themselves.
Q Do you know whether your reporter was permitted
to [136] tour around the jail?
A I don’t believe that he was, no.
Q Do you know if they have some policy over there
at the Charles Street Jail which prohibits all access of
the media?
A I think it is a fairly spontaneous policy given the
situation that arises. If the sheriff doesn’t feel it is in
his interest to let the press in to talk to the prisoners,
he doesn’t give permission. P
_Q And, that the medias have the right to visit the
institutions and tour the institutions?
A Right.
Q And, for the most part, excepting some emergency
situations, see anything that they want.
A Right.
—
368
Q And, during the course of such tours they may en-
gage in conversations with inmates whom they might
run across. Now, do you feel that—
MR. CALIFANO: Your Honor, I think Mr. Katz
should explain conversation.
[137] THE COURT: I understood what he meant by
conversation. He doesn’t mean conversation. He means
a word or two.
THE WITNESS: Could I ask one question in con-
nection with this? Is it possible under this regulation
for the newsmen to ask specifically to talk to, you know—
BY MR. KATZ:
Q An identified inmate?
A Identified inmate.
Q No. |
You would not consider this policy to be a total restrie
tion on the media to cover the affairs of federal institu-
tions, would you?
A Well, I don’t think it is a total restriction, but
I think it is a very unsatisfying one from my point of
view as a working newsman.
And, this is for what reason?
A For the reason that it is clear that we wouldn't
be allowed to talk to the very people that we are there
to investigate. We would, I assume, be allowed to talk
to the odd inmate who may or may not have anything
to do with the situation that brought us there in the first
place.
Q Now, isn’t it true though that under that policy
statement you would be able to check out most allegations
made by prisoners, say, which would have been received
by mail, to determine whether they had any substance or
not?
[138] A This is not at all clear to me. I mean, here!
am walking through the prison, and I happen to pass
a guy who is cleaning dishes, and I stop probably in the
company of a prison official, and I am asked or I have
the opportunity to question him about something that he
may not know anything about, in the presence of some-
869
body who probably would be quite interested in how he
responded.
This is not giving me an opportunity to interview in
depth and in some degree of isolation the individuals
who have contacted me specifically with a grievance.
Q Have you ever personally received or seen any cor-
respondence from prisoners making accusations against
prisons—grievances?
A I believe I have. I wouldn't be able to give you
precisely. I could give you an impression. I can’t recall
specific allegations.
Q I don’t want an impression. I want to know if you
can state any specific grievance which you have received.
A I couldn’t.
Q All right.
Would you Honor indulge me?
THE COURT: Yes.
BY MR. KATZ:
Q Based on the statement which you have in front
of you, it is possible, is it not, for you to write a story?
[139] A You can write a story about virtually any-
thing at any time. But, I feel that the regulations that
are before me here would make it virtually impossible to
write a responsible story both from the prisoners’ point
of view and the institution’s point of view.
Q But, as a matter of fact, you did, did you not, un-
der what you describe as apparently being more string-
ent restrictions than those you have in front of you,
nevertheless, you went ahead and wrote a story about
the Charles Street situation, didn’t you?
A I did. And, I felt it was very very irresponsible.
Q Thank you.
THE COURT: You are excused. Thank you, sir.
(Witness leaving stand.)
THE COURT: All right, Mr. Katz. You have some
Witnesses you want to put on?
MR. KATZ: Yes. Mr. Alldredge.
THE COURT: All right.
370
i Whereupon,
NOAH L. ALLDREDGE
was called as a witness, and having been first duly sworn
by the deputy clerk, was examined and testified as fol-
lows:
DIRECT EXAMINATION
BY MR. KATZ:
Q State your full name and residence.
[140] A Noah L. Alldredge. U. S. Penitentiary Res
ervation, Terre Haute, Indiana.
Q What is your occupation?
A I am warden at the institution of the U. S. Peni-
tentiary.
Q Do you report to the Federal Bureau of Prisons?
A Yes, I do.
Are you the same Mr. Alldredge who has given
testimony previously in this case?
A Yes, I am.
Q_ And, at that time you were the warden of the U. 8.
Penitentiary at Lewisburg?
A That is correct.
Q Mr. Alldredge, when did you become the warden at
Terre Haute Penitentiary?
A July 7, 1972.
Q Would you describe to his Honor what type of in-
stitution the Terre Haute Penitentiary is?
A Terre Haute Institution, your Honor, is an insti-
tution consisting of a complex of two institutions. The
main institution has a population of approximately 1000.
About one quarter mile from that institution there is a
farm camp with a population of 300.
The main institution has a, double fence surrounding
it. It has both cell blocks—domitories and inside cell
blocks, sir.
[141] Q How is this institution characterized as to de-
gree of security?
371
A It is considered that it can handle up to and
including maximum security prisoners.
Q What is the present inmate population?
A 1346 when I left the institution—in both institu-
tions.
Q And, what is the general range of offenses for which
these persons are incarcerated?
A Anything that would receive a sentence exceeding a
year and a day up to and including fifty-year sentences
for violent crimes.
Q Are these all sentenced prisoners?
A Yes, they are.
Q All right.
A Excuse me. Occasionally we do receive a study
case from the District Court Federal judges asking us
to do a study—psychological study.
THE COURT: Under 42087
THE WITNESS: Yes, sir.
BY MR. KATZ:
Q Are all of your inmates committed from Federal
Courts?
A Yes. Oh, we do have—Yes, they are all committed
under Federal Court except those who are transferred
to the institution from state jurisdictions by authority of
the Director of the Bureau of Prisons.
1142] Q Why are these persons transferred to Federal
Institutions?
A There might be several reasons. Protection of the
person from reprisal from some other group of prisoners
in another institution, or it is possible that they can con-
stitute a threat in the opinion of the Commissioner and
Director of Corrections for that particular agency, and
they ask us to take them because of their danger and
threat to that institution.
Q How many do you have at the present time who are
in that category?
A We probably have—I can’t give you an exact figure.
Probably five or six.
Q From what jurisdictions do they come?
A They would come from any jurisdiction.
—
372
Q Do you know in the particular cases of the ones
that you have now?
A Well, I do know, for example, that we do have
two from the State of Massachusetts. We have one from
Il believe Maine, but I can’t—I have only been there four
months, and I guess I have a particular reason for being
familiar with the two from the State of Massachusetts,
That is why I do bring this out.
THE COURT: They also take people from this juris-
diction.
MR. KATZ: I beg your pardon.
11431 THE COURT: They take people from our Court
They take people at Terre Haute that are convicted of
local offenses,
MR. KATZ: D. C. Code violations.
THE COURT: D. C. Code violations.
THE WITNESS: That is correct.
THE COURT: If they are a certain type of prisoners
I have several out there.
THE WITNESS: Ves, sir.
THE COURT: They are serious offenders.
MR. KATZ: Yes, your Honor.
BY MR. KATZ:
Q Do you have many troublesome prisoners?
A I think you can best categorize this by saying that
you would have ten percent of most prison population in
most penitentiaries that would be—including Terre Haute,
that would be difficult prisoners, and of that group, five
percent would probably be your most difficult, and those
most inclined to create problems in the administration of
the institution.
Q What type of problems do they generally create?
A Well, there might be assult to officers. There might
to advocating violence in the institution. There might be
advocating work stoppage in the institution—usually non-
violent, or hopefully non-violent. There could be individ-
ual confrontations in work areas or recreational areas
[144] intended to disrupt the operation of the institution.
THE COURT: You have some psychotic or near psy-
chotie.
373
THE WITNESS: Near psychotic, yes, sir.
BY MR. KATZ:
Q Warden Alldredge, did there recently come a time
when Terre Haute Penitentiary was visited by one George
Mische, M-i-s-c-h-e?
A That is correct.
Q And, when did this gentleman visit Terre Haute
Penitentiary?
A October 6th, I believe.
Q Of this year?
A Yes.
Q Who was Mr. Mische?
A Mr. Mische was a former prisoner at the United
States Penitentiary at Lewisburg, Pennsylvania. He was
there about a year when I was there, and later released
through CTC, Washington, D. C.
Q What is CTC?
A Iam sorry. Community Treatment Center.
Q All right. Proceed. In what capacity was Mr.
Mische visiting the Penitentiary?
A As a representative and consultant to Congressman
Dellums.
Q And, what did he desire to do in the course of this
[145] visit?
A He had identified four prisoners with whom he
wished to speak, and he wished to tour the institution.
Q Who were the four prisoners to whom he wanted
to speak?
A I believe I can name their last names. One was
Arthur Banks. Another was a person named Scalessa.
(Phoneties.) Another was named Brown. And, the fourth
name skips me, or did I name four?
THE COURT: You named three. It doesn’t make any
difference what their names were.
THE WITNESS: All right.
BY MR. KATZ:
Q For what offenses were these people convicted, if
you recall?
374 : |
A Arthur Banks was a violator of the selective serv-
ice laws. Scalessa was, I believe, involved in a conspiracy
with Government property totalling something like $65,00,
if I remember. Now, I remember the other person. The
other person’s name was Radell. (Phonetics. )
Q Radell?
A Yes. .
Brown—he has been transferred to Detroit Community
Treatment Center. I don’t recall having seen his record
recently, so I can’t tell you—Radell had been charged
with [146] possession of illegal weapons and destruction
of Government records.
Q Prior to these interviews, were any of these four
individuals known to you as troublesome prisoners?
A Primarily Arthur Banks is known quite widely
throughout the prison system as being a troublemaker. He
was transferred to me from the U. S. Federal Corrections
Institution at Danbury.
THE COURT: I would like to be able to join this
hearing and understand what it is all about. A Con-
gressman sends somebody out there, and interviews were
allowed. 8
MR. KATZ: Your Honor, we intend to connect this up.
THE COURT: I am not going to sit here and listen
to something that seems totally irrelevant unless you
give me some indication of pertinence.
A Congressman sends a fellow out to talk to some
people, and they let him talk to them. Is that what hap-
pened, and they caused trouble?
MR. KATZ: Well,—
THE COURT: Is that it?
MR. KATZ: The point that we are going to make is
that the conditions under which these interviews were
conducted were the same type of conditions that Plaintiffs
contend they should be permitted to have with respect
to news media, and furthermore that reports based on
these interviews were [147] published in newspapers,
and there were certain effects as to which Warden All-
dredge is prepared to testify.
THE COURT: I guess that is remotely relevant.
MR. KATZ: It is very relevant, your Honor.
SS
375
THE COURT: I don’t see that it is very relevant. It
wasn’t a newspaper reporter. I have a press problem,
not a Congressional relations problem.
I would say that the fact that they let a Congress-
man’s assistant in and wouldn’t let the press in may be
highly irrelevant to the prison authorities. It would seem
to me to suggest the arbitrariness of the policy.
Under what possible theory can you justify letting in
a Congressman’s assistant and not letting in newspaper-
men? I mean, aren’t you just demonstrating, in effect,
the selectivity.
MR. KATZ: I don’t believe so, your Honor. I believe
this question came up at some peint earlier in these pro-
ceedings. We made a point of that.
THE COURT: You did let a Congressman’s assistants
in, and Congressmen were allowed in.
MR. KATZ: Congressmen being Government officials
that have some responsibility for oversight with respect
to Federal Bureau of Prisons and institutions.
THE COURT: Does this Congressman have that?
Was he on any committee that had anything to do with
this?
_ [148] MR. KATZ: I don't know, your Honor.
THE COURT: Well, you may proceed. I am having
difficulty seeing the relationship.
If a Congressman gives a report of an interview to a
newspaper, that could be a totally different kind of re-
port than a newspaper man would make, because I take
it he was there to grind an ax. I take it the
man was out there to grind an ax, not to get at the facts.
MR. KATZ: We would hope that this is not the case.
THE COURT: You would hope that? Is that your
experience in Washington, Mr. Katz?
All right, you can proceed.
MR. KATZ: Thank you, your Honor. ;
THE COURT: But, I would like to get down to the
case.
MR. KATZ: All right.
—
376
BY MR. KATZ:
Q Did these interviews in fact take place, Mr. All-
dredge?
A Yes, they did.
Q And, were these face-to-face interviews?
A Yes, they were. |
Q And, how long did they go on?
A The shortest about 35 minutes, and the longest
nearly two hours.
THE COURT: I take it they were unsupervised in-
terviews, were they?
[149] THE WITNESS: No, sir. They were super-
vised.
THE COURT: Then, they were not the kind that the
press is asking for. In other words, they were supervised
by the prison authorities?
THE WITNESS: Les, they were.
THE COURT: The prison authorities were present.
THE WITNESS: Yes.
THE COURT: Very well.
BY MR. KATZ:
Q Did you give any instructions respecting the na-
ture of the supervision?
A Only two. That they would be supervised, and
there would be no exchange of documents between the
parties involved, and they would not be subject to over-
hearing the conversation.
THE COURT: There was somebody there.
THE WITNESS: That is correct.
THE COURT: No contraband.
THE WITNESS: That is correct.
THE COURT: But, the man wasn’t listening to what
was being said?
THE WITNESS: He listened if they spoke loudly, but
they could have a private conversation if they wished.
THE COURT: I see.
BY MR. KATZ:
Q If the parties to the interview had objected to his
[150] overhearing, then he would not have been required
to stay there and overhear, at least.
377
A No. They could have talked in a low tone, or he
could have stood back far enough from them that they
could have conversed privately if they cared to.
Q I see. Now, to your knowledge did the other in-
mates of the institution know that these interviews were
taking place?
A Yes, they did know.
Q Now, did Mr. Mische stop by to see you after he
concluded his interviews?
A Yes, he did.
Q Did you have a conversation with him?
A Yes.
Q What was the substance of that?
A In general Mr. Mische was explaining to me and
discussing the improvements in the areas of prison re-
form that he had ben able to accomplish and other in-
mates in the State of Pennsylvania. And, I told him of
some of the improvements that I thought I was making
at Terre Haute. I did not permit him to tour the insti-
tution, you know, as he requested. You brought this out
earlier. He asked—He was concerned about this and
asked why I had not allowed him to, and, of course, my
to him was that I did not trust him.
Q Why didn’t you trust him?
A He had been permitted to tour the institution at
the [151] U. S. Penitentiary at Lewisburg, including the
segregation units, and talked to any inmate that he
wished, including those in segregation, and then he then
talked to me and others talked to me later, and did not
give my response to the allegations made in any news
media after that.
Q All right.
On this occasion did he discuss with you any specific
allegations made by any of the persons he interviewed?
A He did not.
All right.
Did there subsequently come a time when a matter
based on these interviews was published in the news-
papers?
A That is correct. The Associated Press, I believe,
made the first release.
378 |
THE COURT: Well, there was no way they could
check it, was there, under your regulations? They couldn't
come in and ask the prisoners what they said, because
you wouldn’t let them in. Isn’t that right?
THE WITNESS: The press at that time?
THE COURT: If the press had come to your peni-
tentiary and said, “Look, this Congressman’s Assistant
says that this is what these men have told me, and we
want to go talk to them”, you are prohibited from letting
them do that.
THE WITNESS: They did not name them by name,
judge. They could have talked to me, and they could
have toured the [152-155] institution.
THE COURT: I know. I am talking about talking
to the prisoners that were involved. They couldn’t do it,
could they?
THE WITNESS: No, sir, not if they named them.
That.is correct.
THE COURT: So, there was no way they could check
on what the Congressman told them that the men said,
is that right?
THE WITNESS: I think they could have asked me.
THE COURT: Oh, yes, but you weren’t there.
THE WITNESS: Yes, I was.
IHE COURT: But, you weren’t there when the pris-
oners talked.
THE WITNESS: No, sir.
[156] BY MR. KATZ:
Q Do you know whether Mr. Mitchie is a regular em-
ployee or staff member of Congressman Dellums?
A To the best of my knowledge he is an unpaid con-
sultant to the congressman.
Q Are you aware of any of his other activities, any
personal awareness of his personal activities?
A Yes. He is a member of a committee—I doubt if
I can cite the title, but it is something like The National
Committee for Justice Under the Law.
MR. KATZ: I would like to have this marked as Gov-
ernment Exhibit 1 for Identification.
379
THE DEPUTY CLERK: Government Exhibit No. 1
marked for Identification.
(Government Exhibit No. 1 marked for Identifica-
tion.)
BY MR. KATZ:
Q Mr. Alldredge, I will show you a document which
has been marked Government’s No. 1 for Identification. I
ask you if you recognize it?
A Yes, I do.
Q Would you tell His Honor what it is, please?
A It is a press release by the Associated Press on No-
vember 2nd regarding a by-line by Tom Sedgewick. In
this press release—would Your Honor care for me to
read it?
[157] THE COURT: It is up to Mr. Katz. I am wait-
ing to see the relevance of this, and anything he wants to
develop I will listen to.
A “An independent committee concerned with penal
reform said today some of the nation’s prisons are
hot beds ready to erupt into strikes and possible
riots. George J. Mitchie, a former convict and mem-
ber of the National Coordinating Committe for Jus-
tice Under Law said one of the worse was the U.S.
penitentiary at Terre Haute, Indiana, and unless
somebody steps in and does something there may be
another Attica there. Mitchie told a new conference,
‘that is a real hell hole—shocking, what we run into
in these places.’ He declined to discuss Terre Haute
further until the committee hears first from the Bu-
reau of Prisons to which it has sent a report. Mitchie
and Frank Calahan, another former convict and com-
mittee member have visited prisons and consulted
with Mr. Ronald V. Dellums, Democrat of California,
and Interviewed inmates and administrators. The
National Coordinating Committee for Justice under
Law founded last May is an organization com-
prised primarily of exconvicts and including pro-
fessionals and laymen doing the work of umbuds
—
380
people and advocating comprehensive change of the
legal justice system. They eited instance after in-
stance of what they call intimidation and harassment
of prisoners who talked with or who wrote to their
congressmen. [158] “Mitchie said the standard pro-
cedure for prisoners who complained was to transfer
them to another institution.”
MR. KATZ: Thank you.
THE COURT: Was that true or false?
A I responded that it was false.
THE COURT: Did the papers print your denial?
A The local press I know did. I do not know whether
it appeared in the national press.
BY MR. KATZ:
I would like to offer these documents as Government’s
Exhibits 2, 3 and 4 for Identification.
THE DEPUTY CLERK: GOVERNMENT'S Exhibits
2, 3, and 4 marked for Identification.
(Government Exhibits 2, 3 and 4 marked for Identi-
fication. )
THE COURT: Why did you let the man in—Mr.
Mitchie—why did you let him in? You say you had pre
vious dealing with him and you found he was dishonor-
able, distrustful person, why did you let him in?
A I didn’t want to, Your Honor. He was under the
auspices of the congressman and I discussed it with a lot
of people, and I think I made a mistake—
THE COURT: -I wasn’t suggesting that, Mr. All
dredge—
A II did. I thought perhaps I would lay myself open
to [159] criticism, and the institution to criticism and
that I had to take this step to ocooperate with the con-
gressman, I suppose.
THE COURT: Because he was a congressman?
A Yes, sir, because he was representing a Congress-
man and he had identified the people with whom he wish-
ed to speak and a letter had been sent to the Director of
the Bureau of Prisons making this request, and so al-
381
though I would have had the authority and the Director
supported me I chose to allow him in.
THE COURT: But if there was a newspaperman that
you considered responsible working for a responsible news-
paper, and your experience with him had been he was re-
sponsible and fair you could have let him in?
A I had requested, Your Honor, the local press do an
in-depth survey of the local institution and were in the
process of doing this I had given him permission to talk
with any inmate with who he wished to speak including
those men in segregation. They had taken pictures of
every type housing from onehalf of the institution up
to the time I had a problem which I think will be brought
out.
THE COURT: » Warden, that was a violation of your
policy, wasn’t it?
A Not a tour.
THE COURT: That isn’t what you said to me. You
said [160] in addition to the tour they were permitted to
talk individually to prisoners.
A Not identified prisoners as they go about the in-
stitution
THE COURT: You mean on one of these walks?
A Yes, sir.
THE COURT: That is consistent with the policy.
BY MR. KATZ:
Q Mr. Alldredge, I show you Government Exhibits
2, 3 and 4 and ask you if you recognize them?
A Yes, I do. These are articles that appeared in the
two newspapers in Terre Haute, Indiana and the other
in the Indianapolis Star newspaper.
Q What are the dates shown on those articles?
A November 2nd, 1972 on all.
Q Are the newspapers in which these articles a red
circulated throughout you institution? sei
A Yes, they are.
Q the best of your knowledge were these news-
papers by inmates?
A I didn’t quite understand.
:
—
382
Q To the best of your knowledge were these news-
papers read by the inmates?
A I know they were. :
MR. KATZ: At this time I would like to offer Govern-
ment Exhibits 1 thru 4 into evidence.
[161] MR. CALIFANO: Your Honor, I don’t see the
relevance.
THE COURT: I don’t even know what these are.
My feeling is both sides should be able to make the fullest
kind of record.
MR. KATZ: I thought we'd be able to save Your
Honor’s time by not having Warden Alldredge re-read
them.
THE COURT: No need for him to read them. I will
read them now. I will receive them into evidence. Let me
have them. (Handed to the Court.)
(Government Exhibits 1-4 received in Evidence.)
BY MR. KATZ:
Q Warden Alldredge, at the same time these stories
were published was this subject matter also covered on
radio and TV?
A Yes, sir. It was covered over and over by the radio
stations beginning November 3rd, perhaps earlier, but I
know November 3rd. Also covered a minimum of three
times in its entirety each day by the two local television
stations and there are four radio stations in Terre Haute.
Q Did you watch or listen to these broadcasts?
A Les, I did.
Q Could you relate the general tenor very briefly?
A Well, they were—the problem of Terre Haute being
a hell hole and another Attica would develop there if
someone didn’t step in was the principal direction and
content of the programs.
[162] THE COURT: In other words they didn’t, as the
newspapers did, give equal space to your denials?
A The newspaper did give equal space.
THE COURT: Television didn’t?
A They later did, yes, sir. In fact, they paraphrased
my response and done it quite well, I think.
THE COURT: You made it very thorough, obviously?
383
A Yes, sir.
THE COURT: What is the point, Mr. Katz, I am
confronting at this stage? An irresponsible man, known
to be that, is allowed into the prison, makes false charges,
the warden denies them and the television and newspapers
print both sides. What has this got to do with the press?
MR. KATZ: Well, the press printed these stories; we
submit that—
THE COURT: —they had no access to the prisoners,
so they printed what people said. They took a press re-
lease from the warden, a very fine, good, well thought
out, careful press release and took a statement from the
congressman’s representative and printed them all, isn’t
that what happened?
MR. KATZ: That is in essence what happened thus
far. I would like to ask the warden what happened fur-
ther.
THE COURT: Very well. I assume there was tur-
moil in the prison and I will be glad to hear his testi-
mony, but I can’t see what it has to do with what I
have to decide, and that is [ 163] whether newspapermen
should be given access to prisoners who want to talk with
them.
MR. KATZ: It is our submission that what occurred
in this instance could be just as likely to occur had this
been a man from the news media rather than the gentle-
man who did in fact conduct the interviews, we don’t see
necessarily any difference.
THE COURT: Is that not also true, Mr. Katz, with
respect to any newspaperman who goes in on a tour and
talks to the warden and writes an unfriendly story about
the institution ; I mean under you own policy. What
difference would it be? I don’t see it focuses in on
present access to inmates.
You may proceed and make your full record but it
would seem to me that a newspaperman, an unfriendly
hewspaperman—TI assume there are lots of them as well
384
about homosexuality, ete., he can print it and that hap-
pens, you permit that now under your policy so I don't
see how this ties into the narrower issue which I thought
was in front of me which is newspaper access to individ-
ual prisoners who want to talk.
But you may proceed, I just wanted to indicate to you
my trouble with it.
MR. KATZ: All right. Thank you, Your Honor.
[164] THE COURT: What happened in the prison,
warden? 4
A A work stoppage, ‘Your Honor.
BY MR. KATZ:
Q When did that occur?
A Monday, November 6th.
Q Would you describe this work stoppage to the
Court?
A Well, the work stoppage began that day and con-
tinued for approximately ten days. It was never a full
work stoppage. I think it ranged from a high of two
thirds of the inmates not reporting for work up to and in-
cluding 90% on Thursday—I can’t recall the date right
now, and this resulted in certain steps we did take that
returned the institution to normal on the 16th.
Q So this lasted for how long?
A Ten days.
Q Did this incident have any appreciable effect on the
normal function of your institution?
A Yes, it did. I mean of course in all instances such
as this it requires a great deal of officer and staff super-
vision at great expense to the institution, or to the Bureau
of Prisons in this instance and requiring some curtail-
ment of some programs although actually we were able
to maintain work call every day and we were able to con-
tinue visiting and this kind of thing. I did suspend, how-
ever, the right of the press to come into the institution
proper, based upon the policy statement of the Bureau of
Prisons.
[165] Q How long did that stay in effect?
A It is still in effect. The press came in the day the
news broke, the first day of the story, and came out and
385
wanted to come in later but I would not permit them to
80.
"6 As the warden of the Terre Haute Penitentiary and
based on your experience and qualifications and back-
ground as we have established at the previous hearing
when you testified, do you have any opinion respecting
whether or not there was causal connection between these
interviews conducted by Mitchie and the subsequent pub-
lication and the work stoppage that occurred a few days
later that you described? :
A In my judgment the work stoppage was caused by
the press release by Mr. Seppey (Phonetic spelling) of the
Associated Press and it began to gather momentum in
the institution and I think this precipitated the work
stoppage at Terre Haute.
THE COURT:. So your response has been to bar the
press entirely?
A No, sir. We did have a representative
THE COURT: -I thought you said you barred the
ress.
1 A I mean where representatives of all the news media
came in one day. But I had numerous requests from the
press individually to come into the institution, this I did
not let them. I would let them come to my office.
MR. KATZ: Your witness.
[166] CROSS EXAMINATION
BY MR. CALIFANO:
Q Warden Alldredge, is the work stoppage still going
on?
A It ended November 16th, I believe is the date, Mr.
ano.
Q Was it peaceful or violent?
A Totally nonviolent,
Q Warden, if these four prisoners or any one of them
had written a letter to Mr. Mitchie and told him what-
ever they told him in the interview and he held a press
conference and said Terre Haute was a hell hole and what
have you, and the newspapers printed the story, do you
think the same thing would have happened?
386
A He did receive letters from these people which
resulted in him coming to the institution.
Q You are not answering my question.
A I’m sorry. Maybe I misunderstood it.
THE COURT: I think what the warden is saying
is he had already gotten letters?
A Yes, sir.
BY MR. CALIFANO:
Q So if he had simply held—you said it was the news
stories which you thought caused or accellerated the work
stoppage. If the news stories had been written on the
basis of statements Mitchie made simply because he re-
ceived letters, you would have had the same work stop-
page?
A I think so.
[167] Q And the inmates could have written him
letters under your policy?
A Yes; and they do.
Warden, did you have any other problems at Terre
Haute aside from the visit of these men? Did you have
any problems in the prison?
A I had many problems, yes, sir, at the institution.
Q Did you have any racial trouble at Terre Haute?
A Where there is racism there is always racial prob-
lems at any institution, yes, sir. . 3
Q Had you had a strike at Terre Haute before his
visit and the press.stories?
A Not while I was there.
Q Had there been one?
A Iam sure there had been. Most federal institutions
have had some difficulties.
Q Had you had stabbings there before they had been
there?
A Iam sure there were, yes.
Had you had disturbances at Terre Haute before
he visited there?
A Yes.
Q You think despite the fact you had all this other
trouble with no stories about Terre Haute that one news
wh
387
paper story about Terre Haute that day caused a work
stoppage? :
A Iam completely convinced, yes.
[168] Q And these other events had nothing to do
with the work stoppage?
A In an institution
Q ir, would you answer the question? These other
difficulties had nothing to do with the work stoppage?
A They only included maybe perhaps from two men
fighting and the case of a stabbing to maybe fifty men
involved in a fight. This is not stopping the entire in-
stitution.
Q But these things could have contributed to it. You
are saying they could not have contributed to the work
stoppage. I am just quoting the statement you made
to the press.
A They were not related.
Q All right. Warden, staying with this incident for
the moment, you made a statement that these stories were
written in the press on the basis of secondhand infor-
mation. What did you mean by secondhand information?
A Because Mr. Mitchie had talked to the four in-
mates in question and this—particularly based his leaks
on information of one inmate because this inmate made
no effort to keep the supervising officer from hearing the
information and without ever touring the institution or
seeing any of the programs of the institution, the food
service or any other part of the institution, he drew
this conclusion and made the press release.
THE COURT: I thought you said he had asked to
tour the institution and you refused.
[169] A Yes, sir.
THE COURT: I understand then why he didn’t.
BY MR. CALIFANO:
Q He really didn’t have that option, did he, warden?
A No, he did not.
Q You said the secondhand information, the press was
writing from secondhand information—I mean how is the
2 aa firsthand information about what the in-
mate sai
388
A You see I had invited, as I stated earlier, the Terre
Haute Tribune staff, the president of the Wabash Valley
Press Club and a photographer and another staff reporter
had been invited to go into the institution and make such
an in-depth survey and after this release I did invite
Channels 2 and 10 to the institution, and—
Q —wWarden, we have been here a long time, would
you just answer my question:
How is the press to write with firsthand knowledge
what these four inmates said since you criticized them
for writing of secondhand knowledge what these four
inmates said under your policy?
A Because it was secondhand information.
Q But how is the press to get firsthand information
about what there four inmates said? Could the press
have interviewed these four inmates?
A The press could have come in as a result of this
and get firsthand information.
[170]. Q They could have interviewed these four in-
mates?
A No, not these four inmates but they could have
visited the institution.
Q All right. To make it clear on the record, I think
you didn’t quite answer the question.
A reporter for a.national news organization such as
one of the wire services or the New York Times or the
Washington Post could not come to your prison and
ask, as this congressman’s consultant asked, to interview
these four identified prisoners and interview them, you
would have turned that reporter down?
A Les, I would have.
Q Warden Alldredge, I would like to go back to the
day, March 23, when we were here before in your testi-
mony that day. Do you recall testifying that when you
were then at Lewisburg you had some notable prisoners
like Bobby Baker, James Hoffa, Martin Zweig, Adonesio,
and General Turner (phonetic spellings), is that correct?
A I don’t remember the exact wording of my state
ment but I did mention certain prisoners, yes.
2 Were l those men well known to the publi
es.
Q Was Martin Zweig a leader among the inmates
at the institution at Lewisburg?
[171] A He was at the federal prison at Allen Wood,
18 miles from the penitentiary at Lewisburg. He would
not have been a leader of any kind at the U.S. Peniten-
tiary at Lewisburg.
Q What was Allen Wood?
A A federal prison camp—a minimum security
facility.
Q Was he a leader of the inmates at the minimum
security facility?
A I could not say because I did not personally only
saw Martin Zweig once. He was no problem.
Q He was no trouble maker?
A No.
Q Did you have any reason to think if he had been
interviewed by the press he would have become a trouble
maker?
A I don’t think he would have.
Q Was Bobby Baker at Lewisburg?
MR. KATZ: Your Honor, I object to this. We were
into all this at the previous hearing.
THE COURT: I am sure you don’t mind making him
you witness if you want.
MR. CALIFANO: I would be pleased to make him
my witness.
THE COURT: I didn’t think we were dealing with
[172] BY MR. CALIFANO:
Q Was Bobby Baker at Lewisburg?
A No, he wasn’t. He was received there and trans-
ferred out to Allen Wood Prison Camp.
Q To the minimum security camp?
A Yes.
Q Was he a trouble maker?
A Not to my knowledge.
“a
Q Do you have reason to think if he had been inter-
viewed by the press he would have become a trouble
maker?
A The only thing—I don’t know but he didn’t want to
be interviewed by the press himself. This was his state-
ment, the only thing I know.
Q Would you answer my question, please?
A I don’t think he would have been. I can’t answer,
you know, completely on it.
Q Was General Turner at Lewisburg?
A Yes, he was. No, he also was at Allen Wood
Prison Camp.
Q The minimum security?
A Yes.
Q Was he a trouble maker?
A He was not.
Q Do you think if he had been interviewed by the
press he would have become a trouble maker?
A A trouble maker? No, sir.
[173] Q Was James Hoffa at Lewisburg?
A Yes, at the U.S. Penitentiary.
Q Was he a leader among the inmates?
A He was a strong personality and well known. Yes,
I would say he was a person of importance in the US.
Penitentiary at Lewisburg.
Q Did he have inmates that followed him—into whose
clique he fell, or—
A —he had friends, certain friends, but whether you
would classify a clique or not I wouldn’t be able to do
that. :
Q Was he a trouble maker in prison?
A No, sir.
Q Do you think if he had been interviewed by the
press he yrould have become a trouble maker?
A I don’t know.
Q Was Tino D’Angeles (phonetic spelling) a prisoner
at Lewisburg?
A Yes, he was.
Q At Lewisburg itself?
A Yes.
Q Was he a leader among the inmates?
391
A He was well known to the inmates as was Mr.
Hoffa.
Q Was he a trouble maker?
A No, he was not.
[174] Q If he had been interviewed by the press do
you think he would have become a trouble maker?
A I don’t know.
As distinguished from these others where you don’t
think they would have? You realize there is a differ-
ence in your answer as it stands on the record?
A Les, I realize there is, yes.
Q That is all I wanted.
THE COURT: You said you had out at Terre Haute
a work camp—of 300 men?
A Yes, sir.
THE COURT: That is a farm?
A Yes, sir, a farm camp.
THE COURT: Minimum security?
A Yes, sir. oe
THE COURT: The men allowed into town at all?
A We have men attending Indiana State University
and Wabash Valley Vocational Technical Institute, and
we have a full academic and vocational training program
at that institution within the confines of the smaller
institution. I ame talking about basic adult education and
things like that, judge.
THE COURT: What harm do you see would come
from letting the press talk to prisoners in that institution?
A In the farm camp?
THE COURT: Yes, considering the general kind of
[175] fellow there is, what he is doing, going to college
in the community?
A Well, Your Honor, I can’t answer your question
perhaps to your satisfaction, but I believe the news media
would—there are many problems, including a farm camp
it relates to different agencies of the government like
Board of Parole, their sentencing procedure, and I am
r opinion that this kind of interview
to
institution and problems of those men in the institution
which do not exist otherwise because they have access
ereate problems in administration of the
—
392
to the congress, they have access to writ of habeas corpus
which they use over and over as you know; they can
write anything they wish to the press; they can write
any congressman and their administrative assistants;
full-time employees do come to the institution and I do
think this added need for this, I can’t in my judgment,
it would have little value for the inmate population.
THE COURT: I understand that. My question was,
and I respect your opinion, you are an experienced man,
but what harm would come? I can see it doesn’t bring
any value to the institution but my question was what
harm would come to the institution?
A If the men were being interviewed, for example by
the press, they’d be discussing perhaps those things they
did not like about the operation of the entire penal sys-
tem or the parole and probation system and administra-
tion in general, and I think this would create problems
in perhaps their being able to get the most out of their
incarceration.
[176] THE COURT: You mean they might say they
are not given sufficient educational opportunities and they
wish the community would give them more, and that
would hurt their educational opportunities? I mean I get
letters like that from prisoners almost every week com-
plaining about the lack of educational opportunities out
at Lorton which is a federal institution, and it may not
even be a prison, but I get letters from that place all the
time saying they want educational opportunities that
they don’t have. What harm would it be if these men
complained about that to the press? You would like, I
assume as a warden, to see them get more educational
opportunities?
A Yes, sir, I would.
to it and I am not trying to disagree with it, I am trying
to understand what is the harm that is envi from
have
that kind of communication? Because what w
393
here is a statement by your superiors that there is a
serious harm, a compelling governmental necessity to stop
this type of discourse and what I am trying to figure out
is what is that compelling government necessity?
A I will answer that there would be less harm in a
minimum security facility but I think anything we do in
a closed [177] setting such as even the farm life might
be would not contribute to and help the inmate himself.
I mean it would distract him to some degree because—
this is an opinion, judge—that if he becomes involved in
talking to the press about the problems he has either
personally or the fact he did not make parole, that the
parole system is unfair, that he did not receive the voca-
tional training program for whatever reason, that he did
meet the criteria when he actually didn’t, that this in
effect has a tendency to make this person more bitter and
perhaps without any gain for him where otherwise he
might be more inclined to pursue his education that we
have available to him.
Maybe I am not making myself clear, but this is my
feeling about it to a lesser degree than it would be inside
for a different reason.
THE COURT: And what if he were right, rather
than being wrong and he attracted interest from con-
gressmen, interest from community resources, somebody
came to you and said: as a matter of fact I think this
boy may be right, we don’t have enough training here in
electronics, or modern automotive engines, maybe we will
do something about it, and the next thing you know a
Chevrolet dealer comes in and says he wants to help.
Suppose he was right?
A The only difference, judge, is that I think the
policy of the Bureau of Prisons is sufficiently liberal to
it thi
[178] THE COURT: by other means.
A By other means, yes, sir.
THE COURT: Very well.
BY MR. CALIFANO:
Q Warden Alldredge, I think if my notes are correct,
you testified that the population if we combined Terre
—
394
Haute and the camp farm nearby as about 1300 and when
you were here on March 23rd you testified the popula-
tion at Lewisburg was about 1850 at that time. What
are the rights of the prisoners to be visited by their fam-
ilies at these institutions if we can legitimately total
them together, what right does a man have to be visited
by his wife and brothers and sisters?
A He has that right.
Q How often may they visit?
A Daily. Really the only primary restriction is that
it does not interfere with the program of the individual
or seriously hamper the operation of the institution. I
mean if a person visited every day eight hours a day we
would probably talk to him asking him to voluntarily re-
duce this.
Q If his wife came in every day for half an hour,
would she be permitted to do that?
A Yes.
Q What rights do these inmates have to be visited by
their counsel, how often can their counsel visit?
[179] A As often as is necessary.
Q Are there others who have visitation rights be
sides the family and attorney?
A Friends.
Q And are friends in the same category as the family?
Can they visit as often?
A There would be more restrictions placed on their
visiting extensively than immediate family.
Q Do you know what those rules are for example at
Terre Haute where you are now and what they were at
Lewisburg?
A They are comparable except we have visiting five
days per week at Terre Haute where we had seven day
visiting at Lewisburg. That is the primary difference.
THE COURT: When anybody starts abusing or tak-
ing unfair advantage you cut down and you tend to
favor members of the family and lawyers, or religious
counsel?
A Les, sir.
2395
BY MR. CALIFANO:
Q Do you have facilities at Terre Haute and at Lewis-
burg for visiting rooms?
A Yes, we do have a visiting room.
Q How many people can visit in those rooms, roughly?
Take Lewisburg first.
A It would be a guess. I would think probably 75
to 100 total could visit comfortably at Terre Haute.
[180] Q How about Lewisburg?
A I would think it would be approximately the same.
Q Might be a little larger because the population is
larger?
A It is not much larger, maybe somewhat larger.
Q 75 to 100 people at any one time?
A Yes.
Q So if they were there for an hour or so you could
have three or four times that many in a given day?
A As you describe it, I believe—what did you say?
Q I said 75 to a 100 people at any one time, and if
each person were there for an hour say, if 75 people
came in at 9:00 o’clock in the morning for an hour to
visit, relatives, to visit, another 75 could come to this
facility?
A They could but this is not what happens.
THE COURT: You have visiting hours in a point of
time during the day. .
A That is correct. But ordinarily when a person
comes to visit they stay all day. You see different people
are visiting different inmates on different days.
BY MR. CALIFANO:
Q Isee. Do these visitations create undue burdens on
you—family and relatives and friends?
A In what way?
Q I mean is it-an undue administrative burden on the
1181] prison at Lewisburg or Terre Haute? Would you
like to cut it back?
A When we are crowded, yes, when we visit down the
hall and this kind of thing.
396
Q Right, but for the most part to have the appro
priate number—75 to 100—which you testified could visit
comfortably at Terre Haute, when you have that number
on a given day is that an undue administrative burden?
A No. We are staffed for this.
Q You are staffed?
A Yes.
Q Do you have the full 75 to 100 every day?
A No, we do not. Some days we will have more than
this and then it becomes somewhat of a problem. Other
days we will not have it.
Q Do you have more on a Sunday, is that what hap-
pens, a weekend, or—
A —usually we have more on the weekends than dur-
ing the week, yes.
Q During the week from Monday to Friday you would
have less than your full complement of 75 to 100?
A We may have 200 on the weekends and we may
have ranging from 25 to 75 during the week.
Q Would it be fair to say that on most week days
you have fewer than the full amount you can comfortably
handle?
[182] A Except on holidays that would be true, yes.
Q Virtually on all week days that is true?
A Not virtually all week days because there will be
periods of heavy visiting which will continue every day
the visiting room is open including the week days.
Q On Christmas holidays?
A Just summer, good weather—
THE COURT: —Mr. Califano, I am not going to
sit beyond 4:30 and I do want to accommodate the gentle-
man also from Florida. I have some sympathy with a
man who can’t get home tomorrow and we are trying to
get him out today. I don’t want to cut you off but I am
wondering, I take it Mr. Alldredge also has to get off
today and I hope you have him scheduled and do the
best you can to accommodate the U.S. witnesses on these
matters.
MR. CALIFANO: I will, Your Honor.
397
Warden Alldredge, do you ever take away visiting
privileges for one prisoner if he does something wrong?
Does that happen?
A Yes.
Q What would be a typical example? He hits another
prisoner, you might take away his visiting privileges?
A No. It has to be in relation to violation of visiting
regulations.
Q If he violates the visiting regulations you would?
A It might adversely effect his visiting privileges,
yes. 5
[183] THE COURT: If he says somebody is his uncle
and it turns out to be somebody that has been with him
in a caper you might cut him off for a while?
A Yes.
BY MR. CALIFANO:
Q But you would not give him that punishment for
anything he did in the prison—fight with prisoners, hit
a guard, or steal something—you would still let him have
his full visiting privileges?
A That is correct. It might depend on the character
of the infraction. If we consider that he represented a
security problem we might limit it to a one hour visit
under supervision and leading from that up to a full visit
in the visiting room.
Q Warden Alldredge, when you were here before
and testified about Lewisburg you testified about a peace-
ful strike there, that a peaceful strike had taken place
there and there was an inmate negotiating committee
there, is that correct?
A This is different circumstances. I can’t recall my
exact words but I believe my testimony implied that it
was a peaceful work stoppage because I locked everyone
up.
Q That may be correct but there was an inmate ne-
gotiating committee at Lewisburg? -
A The inmates had an inmate negotiating committee,
yes.
—
398
Q Were any of the people I mentioned earlier
Baker, Martin Zwieg, Hoffa—any of those people on the
negotiating committee?
[184] A No, they were not. I believe Hoffa had been
released and the others were at Allen Wood.
Q Were any national figures, famous prisoners on that
negotiating committee?
A I am sure there must have been.
Q Can you remember them?
A Ian only name one you named earlier and that
would be Tino D’Angeles.
Q He was on the negotiating committee?
A No, he was not.
Q No, I am asking you were other national figures
like those members of the negotiating committee that the
prisoners, that the inmates formed after the strike?
A To the best of my knowledge none were nationally
known figures.
Q When prisoners come to Lewisburg or Terre Haute
do they go through a screening process upon arrival?
A Yes, they do.
Q Could you describe that?
A When a prisoner is received from the U.S. Marshal
he is escorted to the—
THE COURT: —what is the relevance of this?
MR. CALIFANO: Your Honor, it goes to the point
of fact that it is my understanding at least that prisoners
were given tests of various kinds which enable wardens
and others in [185] the facilities to distinguish among
them in terms of their security problems and in terms of
their other problems—
THE COURT: —RMr. Califano, those all change. The
best hopes of men are sometimes disappointed and the
worst hopes of men sometimes don’t take place, men
change in prison. .
I really think you gentlemen ought to assume the
Court knows a little about—
MR. CALIFANO: —we assume this Court knows a
little about it, Your Honor.
THE COURT: I am in constant communication; I
visit prisons; some people react quite unexpectedly, don’t
399
they, to your original appraisal of them for worse or
for better?
A Yes.
THE COURT: And you change them when that hap-
?
ve Yes.
THE COURT: I mean I don’t see where that gets
I have not in anything that I have done in this case
suggested that the Bureau of Prisons cannot bar the
press from interviewing particular prisoners. I mean
I thought I made that absolutely clear.
MR. CALIFANO: I do realize that, Your Honor, but
in the Court of Appeals opinion, the factors it lists on No.
4 is: Whether there may be a valid basis for a ban in
the interest of avoiding impairment or good order as to a
particular prisoner or prisoners even in the absence of a
prior history of unruliness [186] or disruptiveness.
THE COURT: Aren't they talking there again in the
“big wheel” context?
MR. CALIFANO: I was just going to continue with
5:
Whether it is unfeasible to pursue a flexible ap-
proach to allowance of private personal interviews
with appropriate scope for the judgment of responsi-
ble prison officials and their consideration of ad-
ministrative convenience or necessity.
THE COURT: Those matters are the burden of the
government, not the burden of the plaintiff. But if you
want to pursue that.
I have been expecting testimony, which I haven’t heard
yet and assume I will hear, because I asked for it at pre-
trial with respect to the various categories and classi-
fications of prisoners in different categories, etc. I as-
sume there are competent witnesses coming on those mat- .
ters. We have had little here. I took that to be more
the kind of thing, I tried to suggest by questions about
the farm camp, the work camp. In other words there
are a group of people because they are not considered
serious risks and having high potential and approaching
some community release are put there and I therefore
400
asked questions as to whether this gentleman felt that
group should be treated the same way as the more hard-
ened kind of criminals that [187] the judge out in the
state of Washington was talking about when he was
talking about the prison out there, but I assumed
are talking—they may not be, Mr. Califano, but I as-
sumed the Court of Appeals was talking about general
categories. This, as I understand it, this rule even op-
erates to prisoners who are released to work in General
Motors plants, they were going home every weekend
This rule still applies. I thought what we were talking
about was that kind of category rather than psychological
judgments about potentiality of individual prisoners to
make false statements to the press. But perhaps not. It
seems to me that is a very difficult line of inquiry.
MR. CALIFANO: Your Honor, there is some way
which a judgment is made as to who goes to a camp
y upon arrival and who goes to lesser security.
THE COURT: That depends in part on the sentence
and part on appraisal of the man.
A That is correct. His family relationships, how much
physical resources he might have, all these things enter
into it as well as psychological tests.
THE COURT: All right.
BY MR. CALIFANO:
Let me simply state on the basis of all those things,
you make judgments as to. whether—
A II do not, the classification committee or classi-
fication teams make these decisions.
[188] Q The classification teams of the Bureau of
Prisons makes these kinds of individual decisions about
each inmate that comes to the federal institutions?
A That is correct.
THE COURT: And their guess is sometimes who
wrong either way is based on performance in the prison?
A They sure do, judge.
BY MR. CALIFANO:
Warden Alldredge, since you have been at Terre
Haute—is Terre Haute a maximum security institution?
401
A At one time it was classed as a medium security
institution but now is categorized as a maximum security
facility because it does have maximum security facilities.
Q Are there transfers to Terre Haute on a frequent
basis from other federal prisons?
A Yes.
Q How often?
A We have several prison buses that are transferring
prisoners almost weekly. They are weekly almost.
Q From one maximum security prison to another?
A To various institutions, federal prison camps, from
one coast to the other, yes.
THE COURT: Some of the men that come in there
are destined to be sent out and they stay there for a
while until a place opens up, is that right?
[189] A Yes, judge. We might accept them from one
district and we contact the probation officer and later
transfer the prisoner, yes, sir.
THE COURT: All right. ;
BY MR. CALIFANO:
Q Warden Alldredge, do you have a pretty good sense,
or did you at Lewisburg after being there awhile, of
who the trouble makers were in the prison, who that 5%
you talked about at Terre Haute were today?
A I might not personally have that knowledge but
my staff would be informed better than I.
Q And they would know those prisoners who are ei-
ther trouble makers or likely to be trouble makers?
A We constantly try to identify that group, yes.
Q That 5%, they know them?
A For the most part, but not always.
MR. CALIFANO: That is all, Your Honor. Thank
you.
REDIRECT EXAMINATION
BY MR. KATZ:
Q Warden Alldredge, going back to the publication of
the stories which were marked in evidence, after those
stories appeared in print and prior to the work stoppage,
2 eee G.
2
402
would you have admitted press representatives to the in-
stitutions?
A Yes, I would have.
[190] Q In accordance with the usual operations pol-
icy?
A Ves, sir. .
THE COURT: I think he said he did is what the
record shows. ,
BY MR. KATZ:
Q Now, we have had testimony I believe from you
before on the subject of what you termed the “big wheel”.
Now, the big wheel in your experience, does it neces-
sarily follow a man becomes a big wheel within an insti-
tution because of the fact that he was notorious to the
general public because of what he was convicted for?
A No, it does not.
lt is not necessarily true that only people like
Bobby Baker and General Turner are capable of be-
coming big wheels?
A You are correct in your assumption.
Q Do you have an opinion respecting whether or not
press attention given to these persons who become big
wheels in the institutions can have any effect on their
role?
A I think any person who would receive a great deal
of attention from the press in an institution would be-
come an important figure in that institution.
Q Not necessarily because he was a famous national
figure before that time?
A No.
MR. KATZ: Thank you.
[191] THE COURT: You are excused. You will make
your plane.
THE WITNESS: Thank you, judge.
(The witness was excused.)
MR. KATZ: Your Honor, we are endeavoring to see if
we can obtain other transportation arrangements for Mr.
Wainwright. We would like to start him on the stand.
403
THE COURT: I will try to accommodate him as best
I can. We will see how it goes.
Thereupon,
LOUIE L. WAINWRIGHT
was called as a witness, and being duly sworn, was ex-
amined and testified as follows:
DIRECT EXAMINATION
BY MR. KATZ:
Q Sir, would you please state your name and resi-
dence?
A Louie L. Wainwright, Tallahassee, Florida.
Q What is your occupation?
A I am Director of the Florida Division of Correc-
tions.
Q How long have you been the Director of the Florida
Bureau of Corrections?
A I have been in the correctional service for more
than 20 years and I have served in the position of di-
rector for the past ten years.
Q Prior to your tenure as director what other posi-
tions in the correctional system did you hold?
(192] A Warden of institution for five years, and
prior to that I was in the correctional service within
the institution.
Q All this in the state of Florida?
A Les, sir.
Q Are you a member of any professional associations
dealing with corrections?
A American Correctional Association; National Asso-
ciation of State Correctional Administrators; American
Wardens Association.
Q Would you very briefly describe the American Cor-
rectional Association?
A It is composed of about 12,000 members in the
Correctional Service composing of 19 affiliated organiza-
tions such as American Wardens Association, Medical
+
| :
e€
404
Association, Correctional Psychologists Association, Cor-
rectional Officers Association, Correctional Chaplains As-
sociation, and other people related to correctional work.
Q Does the membership of this association include
personnel who work for the Federal Bureau of Prisons?
A Yes, it does. n
Q Have you ever held office in these associations?
A Yes, in 1966 and ’67 I was president of the Na-
tional Association of State Correctional Administrators
and in 1970 and ’71 I was president of the American
Correctional Association.
Q Would you please describe for His Honor the pen-
itentiary system which you run in Florida, how many
institutions do you have?
[193] A We have 9 major institutions; fourteen 50-70
man institutions; and 11 work release centers. Total of
10,297 inmates and 2600 employees.
Q What is the typical range of offenses for which
persons are convicted who reside at your institutions?
A All convicted felons, ranging from murder, armed
robbery, rape, aggravated assault, on down to forgery.
Q What proportion of your prison population roughly
would you consider a disciplinary —
A About 10%.
Q In what way are they problems for the administra-
tion?
A Of course most of this group is concentrated in two
major institutions of the Florida State Prisons. There
the more serious erimes, management problems, aggres-
sive behavior, those convicted of murder, serious escape
risks, homosexuals, behavior problems of all nature and
of course as you know society has become a lot more
tolerant and permissible and that carries over into the
institution which causes problems for management.
Q How does that cause problems for management?
THE COURT: I would like to know what he is talk-
ing about first.
When he says society has become more permissible,
what are you talking about? I would like to know what
he means by that.
405
A I mean there are more people committing offenses
and more tolerance to those offenses in society.
[194] THE COURT: You mean you don’t get them in
prison because people are tolerant of them?
A The confrontations occurring on the outside that
didn’t occur years ago, people come to us with back-
grounds in taking part in demonstrations and marches
and confrontations with police, ete., which makes it more
difficult problems—
THE COURT: I see, more activists sort of com-
ing into the prison system?
A Ves, sir.
THE COURT: I understand.
BY MR. KATZ:
Q Has there been much of a change in the proportion
of disciplinary problems in the system in recent years?
A Yes, there has been considerable change.
Q In which direction is the change? ;
A More problems, more difficult.
Q Why is this?
A Well, as you know in most states, in particular our
state, there has been stepped up activity in the area of
probation, in the area of parole and work release centers
which skims off what was normally referred to as the
better class of inmates leaving the most difficult manage-
ment problems in the system.
Q Do you have a policy with respect to contact be-
tween the news media and inmates of your penal insti-
tutions?
[195] A Yes, sir. Our policy is we do not permit in-
terviews with the press—between the press and inmates.
Q Does this policy apply uniformly in all of the in-
stitutions of your control?
A Yes, it does.
Q What are your general reasons for prohibiting in-
mate and news media interviews?
A Of course we haven’t experienced contact with too
many reporters as was described here by Dr. Fischer this
morning and we feel that we want the press and the
public to know what is going on in the institutions, we
wt, eee e epd.
406
want to open our institutions to publie serutiny as much
as possible. We do that by permitting the press to tour
any program or any phase of the operation in the insti-
tution; they may on those tours discuss any program
aspects with the inmates involved and we feel that this
is sufficient exposure to allow the public to know what
we are doing and what we are not doing within the
system.
Are you familiar with the policy of the Federal
Bureau of Prisons in this regard which is at issue in
this case?
A Yes, I am.
Q It is to the policy you “described regarding your
institutions substantially similar to the federal system?
A Very similar.
Q You heard the term “big wheel” or term similar to
it [196] used in this courtroom today. Do you have on
the basis of your experience an opinion respecting whether
certain inmates tend to become big wheels?
A Certainly I think the big wheel or leader, or inmate
leader as termed is certainly very evident in our prison
operations.
Q Do you define the term big wheel as what, sir?
A It is an inmate who is able to gain status among
the other inmates either from his publicity and type of
crime before he came to the institution or his activity
after he gets into the institution in which he gains the
respect or at least the following of many of the other
inmates within the institution.
Q Is this a common phenomenom?
A Yes, I think there is no question that any time you
have people together there are going to be leaders among
those people whether in prison or out of prison.
Q Do you have inmates in your system who are per-
sons of considerable national notoriety? Notoriety within
the state of Florida?
Yes, we have some.
Tell us who they are?
Dr. Copolino, Joe Fields, Murph the Surf.
Dr. Carl Copolino?
Right.
PO PO p>
407
THE COURT: You are not saying they are big
wheels? They are prominent—are they leaders in your
prison system? [197] Is that doctor a leader in your
system?
A He has a great deal of following, yes, sir.
THE COURT: So you say he is one of the leaders?
A Yes. There are people in the power structure,
judge, who have positive support and those who have
negative support. .
THE COURT: That isn’t what I was ‘asking about.
I was asking is he one of the leaders?
A Yes.
BY MR. KATZ:
Q Mr. Wainright, did there come a time recently when
one of your institutions was visited by Mr. Les Whitten
(phonetic spelling) ?
Yes, sir.
What institution was that?
Florida State Prison.
Who is Mr. Whitten?
He is a reporter for the Jack Anderson column.
When was it Mr. Whitten visited Florida State
Penitentiary?
A September 16, 17, 18 of 1970.
Q Did you authorize Mr. Whitten’s visit?
A I had several discussions with my immediate boss,
then secretary, Dr. Bachs in which I objected to the visit.
Q Dr. Bachs is who now?
A Dr. Bachs was at that time my immediate superior.
He was secretary of the Department of Health and Re-
habilitation.
[198] Q What did Mr. Whitten want to do in the
Florida State Penitentiary?
A He wanted to tour the institution non-supervised,
talk to any inmate or staff that he wanted with the as-
sistance of an inmate as his tour guide.
Q An inmate?
A An ex-inmate.
Was this in accordance with your policy?
A Definitely not. —
—
ON O OD
408
Q Was Mr. Whitten permitted eventually to have these
interviews?
Eventually, yes.
This was an exception to your policy?
Ves.
Made by you?
Made by Dr. Bachs.
How long did Mr. Whitten and his escort remain at
Florida State Penitentiary? |
THE COURT: Three days is what he said.
Let’s go on with some new information about it.
BY MR. KATZ:
Did there later appear articles in newspapers based
on these interviews?
A Yes, the articles started appearing on October Ist,
1970.
[199] THE COURT: Was that in the column or was
it—
A —his columns, judge, published in about 25 papers
in our state.
THE COURT: Ves, but it was in the column?
A Yes.
MR. KATZ: I would like to have these marked for
Identification as Government’s Exhibit 5, and there are
10 of these.
THE COURT: Why not make them A to J. Ander-
son’s column?
MR. KATZ: Yes, sir. Your Honor, we would like to
move to have xerox copies inserted in the record.
THE COURT: Certainly. I would like to read the
original. And they will be received in evidence. I will
read them.
MR. KATZ: I may explain this, Your Honor. We
have two sets, one dated October Ist, one dated October
2nd. In each case the ten articles are identical, the only
difference being they each appeared in different Florida
newspapers.
THE COURT: Surely.
A Different headlines also.
Oh OO
409
THE COURT: Different headlines and different prior-
ities to his column.
MR. KATZ: And different paragraphs.
THE COURT: That is because newspapers can cut
something out if they want to. .
[200] When will you know whether you have this
eman on an airplane or not?
UNSEL: Your Honor, at this point we can’t get
him on any plane except 8:35.. I can make one more
call if you feel we can’t finish up. .
THE COURT: Is that 8:35 in the morning?
COUNSEL: In the morning out of Baltimore.
THE COURT: You say he is on that?
COUNSEL: That is the reservation he has. now.
THE COURT: That means we have to finish up
tonight.
THE DEPUTY CLERK: Government Exhibit 5-A
thru J received into evidence.
(Government Exhibit Nos. 5-A thru J marked for
Identification and received in Evidence.)
MR. KATZ: I take it Your Honor admitted these
into evidence?
„ THE COURT: Yes. ,
MR. KATZ: Has Your Honor received a copy of it?
THE COURT: No, I haven't. You fellows have been
shuffeling papers. You go on with your examination
while I am reading them.
MR. KATZ: IJ now offer into evidence Government Ex-
hibits 6-A thru J. This is October 2nd.
THE COURT: Received.
THE DEPUTY CLERK: Government Exhibits 6-A
thru J marked for Identification and received in Evidence.
1201] (Government Exhibits No. 6-A thru J marked
for Identification and received in Evidence. )
BY MR. KATZ:
Q Mr. Wainright, you have seen and read the two
articles over the by-line of Jack Anderson which have just
been admitted into evidence?
A Yes, sir.
.
— *
410
Q Do the newspapers in which these various articles
appear receive circulation in the Florida State Penitenti-
; ary?
: A Several of them receive circulation in the institu-
: tion and of course copies of others may be mailed in by
‘ inmate families.
Q You have an opinion overall respecting the truth
or falsity of the allegations contained in the articles?
THE COURT: Oh, come, come!
MR. KATZ: Your Honor asked Warden Alldredge the
same question with respect to—
THE COURT: —I know, but these were quite dif-
ferent articles in form, they deal with a series of specific
problems in the prison system that were noted. The other
was a broadside type of charge not by a newspaper re-
porter. These articles detail a group of very familiar
- difficulties in the prisons. They detail the type of difficul-
ties that have been encountered in the prison system of
Arkansas, the prison system of several southern states,
in Maryland, in Virginia, and in the District of Columbia.
There is nothing particularly unique about this [202]
and I suppose then that what is important to this witness
and to you is to throw some light on whether there are
aspects of this that are true, aspects that are false or
whether the whole thing is false, or the whole thing is
true. But I think it needs a little more differentiation
than your general question. These are common prison
problems that resultéd in the federal court shutting up
the prison system in states because of the lack of adequate
hospitals and prison facilities and those conditions have
been revealed by the press.
Did you issue a reply to this, Mr. Wainright?
A Dr. Bachs did.
THE COURT: In what respect? That is is erroneous?
A Only on the first article.
BY MR. KATZ:
Q I show you a copy of the two articles, Mr. Wain-
right. Will you look at those. Would you tell us which
of the assertions made are in your judgment true and
which are false?
de eda My 2
411
A Of course as the judge has said, some of the points
in here such as overerowding and lack of adequate hospital
facilities are aceurate, but the cases that he pointed out
were not verified. They are completely inaceurate. The
allegation that we attempted to check a corpse into the
hospital was certainly a misrepresentation of fact. The
total artieles, the general theme of the articles are com-
pletely false.
1203] Q After the publication of these articles did
there come to your attention that there was any reaction
to them among the inmate population at that penitenti-
ary?
1 There immediately began to be reaction from the
inmates within the system, within the institution.
Q What form did that reaction take? é
A Of course as a result of this reporter being there
and these two articles and thereafter state reporters be-
gun touring the institution and writing their own stories.
Q By state reporters you mean what?
A Local newspaper reporters from within the state
of Florida, and of course each one of them editorializing
their own views and their own opinions as to what they
saw, many of them disagreeing with particular points
in this column, but also exaggerating other points. We
had numerous newspaper reporters in during the next
several weeks, conditions in the institution became very
serious and we had additional disciplinary problems, we
had more problems supervising the inmates, had more
fights between inmates, had more medical complaints; we
had two of our medical staff resign and leave the insti-
tution. We had a complete reversal of the trends that
we had been going for the last several months since ap-
pointing a new dynamic superintendent a year and a
half prior to this, and it finally resulted in—
Q —if I may interrupt you for just a second. Were
these [204] local reporters permitted to have private
interviews with the inmates?
A They were.
Q Is this too exception to the policy?
A Yes.
Q How long did this go on?
—
412
A Until the situation got to be complete chaos and
Dr. Bachs decided maybe we ought to revert back to the
policy we had through the years.
Q And for how long a period did this continue?
A Some three to four weeks.
Q You were describing the effect of the stories, etc.,
at the penitentiary. What happened after that?
A As said, we continued to have problems. We were
tremendously overcrowded, the repetition of the articles
printed of course kept the inmates stirred up consider-
ably more than they would have been otherwise. The
numerous investigations involved as a result of the alleged
investigation of course caused turmoil in the institution
ee ee ny ee ee
and the morale of the inmates was down, finally resulted
in a serious disturbance at the institution.
Q When did that occur?
A February 14, 1971, a few months later.
Q Would you describe that disturbance to His Honor?
A At this institution we have two complete separate
205] institutions. One is a 1200 man maximum secur-
ity institution and the other at that time had 2400 in-
mates in it with just a little less than maximum security.
There was a work stoppage in the maximum institution
here the day we were attempting to work the problems
out there. The other institution the inmates walked off
their jobs and refused to go to their cells. They were
finally allowed to go to the recreation yard. We attempted .
to talk with them there which was unsuccessful and later
resulted in late evening confrontations and the use of
gunfire to bring them under control and pyt them back
in their cells.
(Change of Reporters)
[206] BY MR. KATZ:
Q How many people were injured as a result of this?
A I believe there were about forty-two.
Q Was there property damage?
A About $10,000 property damage.
THE COURT: Has the Legislature done anything
about it?
A
413
THE WITNESS: Since that time?
THE COURT: Yes. I mean, Anderson says it isn’t
your staff’s fault. It is the fact that the taxpayers aren’t
putting up enough money for a decent prison system.
I was just wondering whether there was any reaction
from the state authorities.’
THE WITNESS: They have taken some steps.
THE COURT: Gotten more money?
THE WITNESS: Les, sir.
BY MR. KATZ:
Mr. Wainwright
THE COURT: That has been the theme of the testi-
mony right along.
BY MR. KATZ:
Q Mr. Wainwright, do you have an opinion, based on
your position as Director of Corrections, and based on
your experience, and based on knowledge you have of the
events which you have described, as to whether or not
there was a causal connection [207] between the inter-
views which took place and were recorded in the Jack
Anderson columns, which have been introduced in evi-
dence in this case, and the other interviews which oc-
curred on the one hand, and the major disturbance which
you have just described?
A Well, as I mentioned earlier, we had a little over
a year prior to that appointed a new dynamic superin-
tendent to head, to manage that institution, and to over-
— some of the problems that we recognized we had
there.
It was on the way to working out some of those prob-
lems. We had received legislative recognition, some legis-
lative committees had been there. In fact, the day the
disturbance occurred, we were meeting with the Senate
Legislative Committee to discuss many of the problems
existing at that institution.
So as a result of the Anderson column and the sub-
sequent publicity and reporters and repetition of reports,
at that point the situation began to turn the other way,
began to deteriorate.
414
We had serious problems, as I said, and disturbance,
We had more disciplinary reports; we had more reaction
by the inmates; we had more confrontation with the of-
ficers; and it did not cease until the final disturbance on
February 14.
So I think the only logical explanation that can be
drawn is that it resulted as an effect of the publicity that
began with Jack Anderson’s column, and followed through
with [208] the other reports.
Q How significant was the February disturbance?
A It was extremely significant. There were several
hundred people involved. Of course, it resulted in many
investigations, both state and Federal; and the institu-
tion, of course, was in considerable chaos for many weeks
thereafter, under very close security and under tight
management operation.
Q Are you familiar with the proposed guidelines of
the Association of State Correctional Administrators with
respect to inmate interviews?
A Yes, I am.
Q And what do you understand that policy to be?
A That each case should be handled on an individual
basis.
Q Do you concur with that?
A No, I don’t.
Q Would you state your reasons for not concurring?
A I think that we have to develop uniform policy in
the institution, in the Division, and when you start mak-
ing exceptions to a policy such as that, that there is not
any place to stop.
I think somewhere along the line the press has to un-
derstand that there are management problems in the in-
stitution that they can’t solve. They are not instant ex-
perts. And that interfering beyond the point of being
able to review programs, [209] to be able to discuss prob
lems of programs, or lack of programs, to physically see
it, themselves, and also to be able to talk to inmates
involved in those programs, seems to me like that is suf-
ficient. They don’t have the authority to do anything
beyond that. They can’t legislate. They can’t take a man
to court. They can’t prefer charges against people who
—
are not acting properly. It seems to me like that is the
responsibility of the courts.
Q Are you familiar with the structure of the Fed
eral prisons and the institutions? Are you familiar with
the institutions which make up the Federal Bureau of
Prisons?
A Yes, I am.
Q On what basis do you have that familiarity?
A Well, of course, I have talked with wardens from
the institutions on many occasions at different meetings
I have attended. We mentioned earlier I actually spent
two weeks at the institution in Atlanta; and I have visited
two or three other of the Federal institutions; and I am
quite familiar with the one in Tallahassee.
Q So you feel, based on your knowledge of the ‘Fed-
eral prison system, and based on your experience and
expertise and knowledge of corrections, that a discretion-
ary policy, such as that of the Association of State Cor-
rectional Administrators, is not appropriate in such a
?
A I think it would be quite inappropriate for the
210] Federal system.
Q Why do you say that?
A Because of the vast number of institutions and,
again, I think it needs to be a uniform policy that can
be followed throughout.
MR. KATZ: Your witness.
CROSS EXAMINATION
BY MR. CALIFANO:
Q Director Wainwright, near the end of your testi-
mony you said that you disagreed with the Association
recommendation that press interviews should be handled
on an individual basis, is that correct?
A That is correct.
Q Do you recall writing me a letter on October 3,
1972, in response to a letter related to this case?
A No, I don’t.
MR. CALIFANO: I only have one copy.
415
416
THE COURT: Plaintiffs’ 11, is that it? You can
mark it.
THE CLERK: Plaintiffs’ Exhibit No. 11 marked for
identification.
(Whereupon letter dated 10/3/72 from Mr. Wain-
wright to Mr. Califano was marked Plaintiffs’ Ex-
hibit No. 11, for identification.)
MR. KATZ: May we have a copy of that, Mr. Cali-
fano?
MR. CALIFANO: I don’t have any more.
[211] MR. KATZ: May I read it first?
MR. CALIFANO: Yes.
BY MR. CALIFANO:
Director Wainwright, I will read the first para-
graph of that letter:
“Dear Mr. Califano:
“Tt is against our policy to allow press interviews
with individual inmates except under unusual sit-
uations. If such visits were routinely approved, the
administrative and custodial burdens would over ex-
tend our already limited staff. At present each re
quest is individually processed by the institutional
superintendent and final approval is granted from
the central office based upon staff capabilities and
the nature of the request.” |
And this letter is dated October 3, 1972.
Now, could you explain the difference between—
THE COURT: Lou had better ask him whether he
wrote that letter.
Did you write that letter?
THE WITNESS: It looks like my signature.
THE COURT: I assumed from the testimony that
somebody else came along and wrote that letter and
signed your name to it. Is that right? Is that what
happened? That is [212] what happens to all busy officials.
BY MR. CALIFANO:
Q Is that your signature, Director Wainwright?
417
A It is my signature.
Q I will give you the original, if you like.
A Yes.
THE COURT: Did you sign it or did somebody sign
your name?
THE WITNESS: I am not sure, Judge.
THE COURT: All right.
THE WITNESS: I might comment, if I may.
At the time back in October, we were reviewing these
policies with the superintendents. We have not adopted
the State Association of Prison Administrators policy, the
policy guidelines in any of the seven or eight areas.
At the time this letter was written, it was during the
time that those policies were under review; and it is very
probable that the staff felt at that time we were going
to adopt the policies. But we have since met with the
Attorney General, and others, and have not adopted the
policies of the Association.
BY MR. CALIFANO:
Q It doesn’t say you were going to adopt that policy,
Director Wainwright. It says, it is your policy.
A Well, I can give you one exception that we have
made, [213] for instance. We had a lady come to us that
was fifty years old and was illiterate. We enrolled her
in school; she graduated from high school, got a GED
diploma, bought herself a graduation ring. I happened
to mention it to a reporter one day and he wanted to
interview her. I granted that interview.
I guess I did that on an individual basis. But gener-
ally speaking, we do not permit interviews with individual
inmates.
Q Do your superintendents have authority to grant in-
terviews?
A No, sir.
Q May I just get the signature point cleared up. You
said that looks a lot like your signature.
A I will accept responsibility for the signature.
Q You mentioned that there was an investigation and
some kind of a report from a investigation after the
418
stories were written, and you had disturbances in the
Florida prison. You called it an alleged investigation.
A Yes, sir.
Q What investigation was that?
A The Department of Law Enforcement checked on
a couple of the items. Dr. Bax, personally, checked on
some of them.
Q Did they investigate the prison system or just in-
vestigate whether each item in these stories was cor-
rect or incorrect?
[214] A They reviewed the allegations in the stories.
Q Are any of the prisons under your jurisdiction and
control overcrowded?
A All of them are.
Q All of them are.
Are some of the under-staffed, as well, as far as guards
are concerned?
A Ves, sir.
Q Are they under-staffed as far as medical treatment
is concerned, doctors?
A Yes, sir.
Are they under-staffed as far as training programs
are concerned, educational programs?
A Yes.
Q Do you have racial problems in the prisons under
your control, racial tensions?
A We have recial tensions, yes.
Q What is the racial mix of those prisons, do you
know, roughly?
A About fifty-two per cent black.
Q Have you had incidents in those prisons, stabbings,
homosexual incidents, prior to the time the stories were
written?
A We have had some instances since the prisons have
been operating, yes, sir; but we had a stepped-up number
of [215] them after the stories.
Do you think that these factors might have con-
tributed to inmate dissatisfaction?
A Certainly they contribute to inmate dissatisfaction.
Q Do you think, Director Wainwright, that the prison
officials like you, short on guards, short on medical treat-
419
ment, short on educational and training programs, over-
crowded, racial tensions, are just sitting on bombs in
our society, sitting in very tough situations?
A No question about it, yes.
Q And they could explode at any time?
A (Witness nods assent.)
Q Whether or not the press writes a newspaper
story?
* But they will explode a lot quicker if they are
agitated by the press.
Q If they are agitated by the press. Does the press
agitation, as you describe it, come when the reporter goes
to the prison or—I think you said it was the publication
of the Anderson column that precipitated the problem.
Did you have a problem before the column was printed?
A Well
Q Of disturbances?
A Are you asking me if Mr. Whitten had gone to
the institution and left without publishing a paper that
there would have been a problem? _*s
[216] Q Right.
A I am assuming it would be much less of a problem
if that had occurred.
Q Well, did you have disturbances between the time
Mr. Whitten visited the prison and the time prior to
the publication of the Anderson column?
A We had considerable apprehension and considerable
reaction. ,
Q From the prisoners?
A Right, and from the staff.
Q The staff was apprehensive?
A Both.
Q I don’t want to spend a lot of time, but you made
a kind of general assertion that these articles are false,
and there are a whole host of different kinds of facts
in these articles, many relating to matters that have to
do with hospitals outside the jurisdiction of your Bureay
of Prisons and records that Mr. Whitten found there.
Are you saying that every fact stated in these articles
is false?
420
THE COURT: No, he isn’t saying that. He has said
that—
BY MR. CALIFANO:
Q What precise facts are false, Director?
Would you like to look at the article?
[217] A Well—
THE COURT: I don’t want to try the newspaper ar-
tides. As I understand what this gentleman is saying,
it is that some of the general conditions referred to in
there are in various degrees true but that some of the
specific complaints and incidents by Wann in there
are false.
Isn't that what you are saying?
THE WITNESS: Yes.
THE COURT: He has been very frank in saying that
this like many prisons has got problems but that he feels
that some of these individuals who talked to Whitten, if
they did, exaggerated and gave a false indication of what
their problem was.
THE WITNESS: Yes, sir.
THE COURT: I gather that is what he is saying.
It doesn’t really bring us forward to try out whether
somebody really had a more serious or less serious leg
wound or something else. That won't get us anywhere be-
cause there isn’t any notion in this case that what news-
papers write is true, Mr. Califano. I haven’t approached
it from the point that what newspaper writers are going
to say is necessarily true.
BY MR. CALIFANO:
Q Director Wainwright, you said for three to four
weeks you had an open press policy.
[218] A Les, sir.
— COURT: He had one imposed on him by his
BY MR. CALIFANO:
Q You had one imposed on you by your boss.
A That is correct.
THE COURT: Then his boss took it back.
421
BY MR. CALIFANO:
Q Did you have individual, private, confidential inter-
views during that three or four weeks with reporters?
A They were allowed to interview prisoners in the
presence of staff and in some cases, of course, without
the presence of staff.
Q Do you have a sense of the number of interviews
that took place in that period of four weeks?
A I would say some eighteen, twenty.
Q And that was a period of turmoil as a result of
the Anderson article?
A What?
Q You said there was turmoil in the prison as a re-
sult of the Anderson article.
A I am saying it started with the Anderson article
and it kept going with each week that another reporter
would come in or a half dozen reporters would come in.
The apprehension and turmoil continued to build, tensions
began to build, and so forth, yes.
[219] Q The Anderson article appeared on October 1,
as I have it, at least, and October 2.
A Yes.
Q I thought you said sometime in February—what
was the date of the disturbance?
A February 14.
Q February 14. When did you open it up to the
press, after January 1 or on October 3? You said it was
a three-to-four-week period.
A Right after the Otcober Ist and 2nd articles came
out.
Q After three or four weeks, you closed it down;
your boss changed his mind and you closed it down?
A That is right.
Q From November Ist on, you finally, in your quite
candid terms, got strainghtened out and you colsed the
press out?
A From individual interviews.
Q From individual interviews.
A Les.
THE COURT: And then there were riots.
THE WITNESS: Yes, sir.
422
BY MR. CALIFANO:
Q Two and a half months later. Yes?
A Yes. It takes a while for those things to build.
THE COURT: Now, Mr. Califano, it is five o'clock
Apart from the Court’s own stamina, I have to take into
account [220] that the personnel have been working on
daily copy.
I don’t want to inconvenience this gentleman unless |
have to.
THE WITNESS: I appreciate that, Your Honor.
THE COURT: On the other hand, we have been sit-
ting continuously since nine-thirty this morning. It is now
five.
Perhaps you ought to take a moment and go over your
notes and see how much more you want to do with Mr.
Wainwright.
MR. CALIFANO: I think that is enough.
THE COURT: I appreciate your tolerance with the
Court’s position but I really think we have to shut down
about now.
I have sat later in murder and other particular cases,
but I think today we have been running pretty hard.
MR. CALIFANO: Thank you.
THE COURT: Mr. Wainwright has been a very ean-
did and direct witness on these matters and helped us
move along.
Mr. Katz, do you have anything further that you wish
from him?
MR. KATZ: I have one further question which I don’t
believe I covered previously.
THE COURT: Very well.
REDIRECT EXAMINATION
BY MR. KATZ:
Mr. Wainwright, do you believe, based on your
expertise [221] and experience, that press coverage, press
attention to inmates tends to either make them Big
Wheels or having been Big Wheels tends to further their
activities along this line?
423
A I think individual interviews tend to give them
more status and make them, put them in the category of
a Big Wheel, yes.
MR. KATZ: Thank you, sir.
RECROSS EXAMINATION
BY MR. CALIFANO:
Q Director, I am sorry. I didn’t realize the Govern-
ment was going to do that to me.
How many inmates within your jurisdiction and con-
trol became Big Wheels as a result of press interviews
during that three-to-four-week period, and would you
identify them, please, if you can? That were not Big
Wheels before.
A Well, I think that I can name Cleo Orange, for
instance. That is the only one I can name right off that
emerged as a result of the interviews. But my point is—
Q How many times was he interviewed?
A I don’t have any idea. I wasn’t there.
Q You weren’t there?
A No.
Q You mean you kept no record of how often people
were interviewed?
A I assume the superintendent of the institution did
but [222] I am not at the institution.
Q But that is the only example that you can recall
at this time?
A That is the only example I can recall.
Q O. K., thank you. Y
THE COURT: All right, gentlemen, we are closed.
MR. CALIFANO: Your Honor, I forgot to offer the
letter in evidence.
THE COURT: Yes.
(Whereupon Plaintiffs’ Exhibit No. 11 was received in
evidence. )
_ THE COURT: We have plenty time for housekeep-
ing. We will start up at nine-thirty tomorrow morning.
How many more witnesses do you have, Mr. Katz?
—
424
MR. KATZ: Your Honor, we have just one more, I
believe.
THE COURT: Is he going to be on the statistical
aspects of this case?
MR. KATZ: We had planned to offer that by way of
documentary evidence.
THE COURT: That may be satisfactory. I have no
problem with that form.
MR. KATZ: This is going to be a gentleman from
Iowa.
THE COURT: And then you will have how many
more?
MR. CALIFANO: Director Carlson.
THE COURT: What order would you want to go in?
1223] MR. CALIFANO: And some documentary evi-
dence.
THE COURT: What order would the parties like to
go in? I take it you want to take the man from out of
town first?
MR. CALIFANO: That is what we thought, since he
was subpoenaed.
THE COURT: We will take him tomorrow at nine
thirty. I have two brief arraignments. They won’t take
any time. I will not be more than five minutes late.
MR. CALIFANO: Then we have a lot of documentary
evidence.
THE COURT: That we can do after these gentlemen
get home to families and homes for Thanksgiving. Those
of us who live here can fiddle around with documents.
So we will take the man from Iowa at nine-thirty to-
morrow morning and follow that with Mr. Carlson.
MR. KATZ: Fine.
(Whereupon at 5:05 p.m., the trial was recessed, ,
pursuant to reconvening at 9:30 a.m., November 22,
1972.)
425
[223-A]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 467-72
WASHINGTON POST, ET AL., PLAINTIFFS
V.
RICHARD KLEINDIENST, Er AL., DEFENDANTS
STIPULATION
Plaintiffs and defendants, by their undersigned counsel,
hereby stipulate that the following corrections be made
in the trial transcript for November 21, 1972:
p. 2, line 21 for “Floyd” read “Louie”
p. 79, line 6 for “There” read “They”
p. 79, line 10 for “can” read can't“
p. 80, line 2 for “was a” read “was not a”
p. 90, lines 23, 24 for “cantino” read “canteen”
p. 99, line 2 for “giving” read “given”
p. 99, line 9 for “furlow” read “furlough”
p. 102, line 13 for “DiSilva” read “DiSalvo”
p. 123, line 21 for “pinned” read “peaned”
p. 139, line 11 for “responsible” read
“irresponsible”
p. 191, lines 10, 16 for “Floyd” read “Louie”
p. 196, line 22 for Paul“ read “Carl”
p. 197, line 11 for “Rugs” read “Leg”
p. 288, line 2 delete “no”
p. 288, line 13 for “to” read “too”
p. 293, line 19 delete “no”
426
An additional copy of this Stipulation is attached for
insertion after the cover page of the trial transcript.
RICHARD M. COOPER
Attorney for Plaintiff
[Inegible]
Assistant United States
Attorney
Attorney for Defendants
November 29, 1972
427
[224]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 467-72
THE WASHINGTON Post COMPANY
and
BEN H. BAGDIKIAN, PLAINTIFFS
v.
RICHARD G. KLEINDIENST, Attorney General of the
United States
and
NorMAN A. CARLSON, Director,
United States Bureau of Prisons, DEFENDANTS
Washintgon, D. C.
November 22, 1972
The above-entitled cause came on for further hearing
before the HONORABLE GERHARD A. GESELL,
United States District Judge, at 9:50 a.m.
APPEARANCES:
(As heretofore noted.)
428
1225]
CONTENTS
Witnesses Direct Cross Redirect Recrogs
Defendants’ :
LOU V. BREWER
By Mr. Katz 226
By Mr. Califano 242
Plaintiffs’ :
NORMAN A. CARLSON
By Mr. Califano 245
By Mr. Katz 250
EXHIBITS
For In
Government's: Identification Evidence
No. 7 Policy and Procedure Guide-
lines, Bureau of Adult
Correction Services,
State of Iowa. 230 241
No. 8 Burlington Hawk-Eye article. 234 241
No. 9 Des Moines Register article. 234 241
No. 10 Volume entitled Federal Bureau
of Prisons Statistical Report,
Fiscal Years 1969 and 70. 243
No. 11 Pamphlet entitled United States
Department of Justice, Federal
Bureau of Prisons, Biennial
Report for 1970-71. 244
No. 12 Chart entitled Statistical Data
Regarding the Number of Federal
Prisoners in Bureau of Prison’
Institutions in the Following
Categories as of October 23, 1972. 244
No. 13 Subsequent Carlson affidavit. 248 249
[225-A]
For . In
Plaintiffs’ : Identification Evidence
No. 12 Director’s letter of January
13, 1972 and attached Policy
Statement. 245
No. 18 Affidavit of Mr. Carlson dated .
November 28, 1971. 246 249
429
[225-B]
Plaintiffs Exhibits For Ident. In Evidence Withdrawn
14 276
15 277
17-A through D 279
; 18-A and B 280
3 19-A and B 280
: 20-A 281
20-B 284
; 21-A 284
30-B 291
30-D 292
31-A 292
31-B 292
' 32-A, 33, 34-A and B 293
35-A, B, C 294
54-A through D 296
54-E 296
55-A 297
55-B 297
57-A and B 298
58-A, B, C 298
58-E 298
59, 60 299
64 302
65 303
430
[226] PROCEEDINGS
THE COURT: All right, we will take the next wit-
ness.
MR. CALIFANO: Your Honor, just to clean up the
admission of Plaintiffs’ Exhibit 11, the letter from Direc-
tor Wainwright to me.
THE COURT: That may be received at this time.
That is already in evidence at Page 222 of the tran-
script. I thought I had admitted it.
MR. KATZ: The Government calls Mr. Brewer.
WHEREUPON—
LOU V. BREWER
was called as a witness by the Defendants, and having
been first duly sworn, was examined and testified as
follows:
DIRECT EXAMINATION
BY MR. KATZ:
Q Sir, would you state your full name and present
address, please?
A Lou V. Brewer; I reside on the grounds of the
Iowa State Penitentiary in Fort Madison, Iowa.
Q What is your occupation?
A Warden of the Iowa State Penitentiary.
Q How long have you been Warden of the Iowa State
Penitentiary?
A Four years.
Q Would you describe to the Court very briefly your
[227] previous experience in the correctional field prior
to assuming that position?
A I began working corrections in 1956, as a classifi-
cation interviewer at the Tennessee State Penitentiary,
and remained with that system until 1961. The last year
that I was there, I was Director of Classification. In
1961, I became a counselor at the Iowa State Penitentiary
in Fort Madison for two years. Two years later, I be
came the Superintendent of a forestry honor camp in con-
431
junction with the Iowa Men’s Reformatory; and two
years later became Superintendent of the Release Center
in Newton, Iowa; until I assumed the present position.
Q Would you describe very briefly the nature of the
Iowa State Penitentiary, of which you are the Warden?
A The Iowa State Pentitentiary houses maximum se-
curity needs of the system. We have approximately 600
inmates, the full range of major offenses, dealing pri-
marily with recidivistic and long-term individuals.
Q Do you have many individuals incarcerated in that
institution whom you consider to be disciplinary prob-
lems?
A Yes. Because of the structure of our system and
the fact that we transfer behavioral problems and securi-
ty risks from other institutions, approximately 20 to 25
per cent of our present population are behavioral, man-
agement problems.
Q What types of problems do they present?
A Assaultive behavior, acting out in an impulsive and
[228] rebellious manner.
Q Do you have inmates who are considered to have
exercised a leadership role over other inmates? ‘
A Les, we have inmates who within the prison com-
munity become leaders because of their more activist na-
ture and their ability to manipulate other people to follow
their will.
Q Could you give us an idea how many such individu-
als you have?
A Well, within that 20 to 25 per cent that I said
were problem behavior, management cases, probably one-
fourth of that number are of the leadership type.
Q All right. Now, Mr. Brewer, did anything unusual
a at the Iowa State Penitentiary in November of
A Following several days of unrest and continuing
rumors and feed-back from staff, we did order a general
lock-up on November 29, 1971, feeling certain that the
information on which we acted was such that had we not
— 4 so, there was likely to occur a disturbance the next
y.
Q What is a general lock-up?
A We left all men in the institution in their cells the
next morning and began shifting further information to
try to determine the nature, the cause, the grievances
that were motivating the tension, and as much as possible,
who was responsible. Within two days, we had been able
to identify those people primarily responsible and identi-
fied the grievances. [229] We set about trying to redress
those grievances that appeared to have merit; and two
days later started returning the majority of the general
population to routine, although we continued some people
in the lock-up past that date.
Q Did this matter eventually come to the attention
of the press in Iowa?
A Yes, it did.
Q Did you receive any requests from members of the
press in Iowa to conduct interviews with any of these
persons?
A Yes, a reporter for the Des Moines Register and
one for the Burlington Hawk-Eye, each advanced a re-
quest to interview those inmates who were in segregated
status as a result of the preventive action.
Q Were these requests made to you, sir?
A Initially, they were made to me.
Q Do you, in the State of Iowa, have a policy respect-
ing inmate interviews with the media?
A Yes, we do.
MR. KATZ: I would like to mark this document as
Government’s Exhibit 7, for identification.
THE DEPUTY CLERK: Government’s Exhibit No.
7 marked for identification.
[230 (Whereupon, the Policy and Procedure Guide
lines, Bureau of Adult Correction Services, State af
Iowa, was marked Government’s Exhibit No. 7, for
identification.)
BY MR. KATZ: 1
Q Now, Mr. Brewer, I now show you a document
which has been marked as Defendants’ Exhibit No. 7, for
identification, and I ask you if you recognize it?
A Yes, I do.
Q What is that document?
433
A The Policy and Procedure Guidelines of the Bureau
of Adult Correction Services, State of Iowa.
Q Would you briefly summarize for His Honor what
the provisions of that policy are with respect to inter-
views between news media and inmates?
A It encourages press access to the institution and
making available of information to the press. It further
indicates that interviews in general should be granted
and rests the prerogative for granting the interviews
with the institution warden or superintendent, but indi-
cates the institution superintendent may decline the inter-
view in consideration of the needs of the inmate, other
inmates, or the interests of the institution or the Bureau.
Q All right.
1231] Now, sir, directing your attention again to the
requests for interviews following the lock-up, which you
previously described, who made these requests to you?
A Well, initially a reporter for the Des Moines Reg-
ister and, additionally, a reporter for the Burlington
Hawk-Eye.
Do you wish their names?
Yes.
A The initial request was from James Landsburg,
from the Des Moines Register, and Les Peck, from the
Burlington Hawk-Eye.
Q Approximately when did you receive these requests?
A Mid to late December.
Q What action did you take on those requests?
A I denied the interviews.
Q On what grounds?
A I felt the institution was still in a state of tension,
and that interviewing the inmates could only add stature
to those people whom we had in segregated status, as
far as their relationship to the other inmate population,
and that this could give rise to the heightening of tension
and the feelings of the inmates and staff.
Q What happened after you issued your denial, as
you stated?
A
I was tly ordered by the Director of the
Bureau of 1 Services, he having advised
434
me that [232] he had been directed by the Governors
office that we should permit the interviews.
And did interviews in fact take place?
Yes, they did.
When did they take place?
Some time in the first week of January of 72.
Who conducted the interviews?
Mr. Gordon Gamet at that time substituted for
Mr. Lansburg, who made the original request for the
Des Moines Register; and Mr. Peck, the same reporter
who made the request for the Burlington Hawk-Eye,
conducted the interviews.
Q Where did they take place?
A We arranged an interview room inside the insti-
tution for this purpose.
How many inmates were interviewed?
A Six.
Q How were these six inmates selected?
A I initially provided them with a list of those in-
mates who were in segregated status relative to the No
vember 29 action, and from this list, they scanned our
card file and indicated an initial six that they would
interview.
After they began the interviews, they detoured from
this list, and after interviewing the first inmate, gave
us a list different from this of named inmates. Since it
Was still within the framework of interviewing inmates
that we had in [233] segregated status related to this
issue, we permitted them to interview those six.
Q And how long did this entire process of interview-
ing these six individuals go on?
A They were involved with either interviewing the
inmates or tourning the institution from early afternoon,
I think around 1:30 or 2:00, until 8:00 or 9:00 in the
evening.
Q The inmates interviewed were at the time in what
status?
A They were in administrative segregation.
Q And why were they in administrative segregation?
THE COURT: He has explained they were part of
the group that were locked up as a result of the effort
PO PO PO
435
through the general lock-up to determine who the leaders
were and hold them. Isn’t that what happened?
THE WITNESS: That is correct.
THE COURT: He has been all over that.
MR. KATZ: All right.
BY MR. KATZ:
Q Did there subsequently come a time when stories
appeared in newspapers which were based on these in-
terviews?
A Around January 9, I believe, each of the news-
papers involved did publish an article reflecting these
interviews.
THE COURT: Did they also interview you, Warden?
THE WITNESS: Each of these people had previously
234] interviewed me and subsequently interviewed me.
THE COURT: Yes.
MR. KATZ: I would like this marked as Govern-
ment’s Exhibit 8.
THE DEPUTY CLERK: Defendant Government Ex-
hibit No. 8, marked for identification.
. (Whereupon, the Burlington Hawk-Eye article was
marked Government’s Exhibit No. 8, for identifica-
tion.)
MR. KATZ: And Government’s Exhibit 9, for identi-
fication.
THE DEPUTY CLERK: Defendant Government Ex-
hibit No. 9, marked for identification.
(Whereupon, the Des Moines Register article was
marked Government’s Exhibit No. 9, for identifica-
tion.)
BY MR. KATZ:
Q Mr. Brewer, I am going to show you two news-
paper stories which have been marked as Defendants’
Exhibits 8 and 9, for identification, and I would like
you to examine them and tell us if you recognize them?
A One of these is the article that appeared in the
Des Moines Register, to which I alluded earlier; and the
436
other [235] one is the one that appeared in the Burling-
ton Hawk-Eye on January 9, 72.
Q Those are true copies of the stories to which you
referred?
A Yes, they are.
Were the newspapers which carried these stories
circulated in the Iowa State Penitentiary?
A Yes, they were.
Q Were they read by the inmates?
A Yes, they were.
And were there any consequences that flowed from
the circulation of these stories in the Iowa State Peni-
tentiary?
A There were primarily two problems that developed.
Q Please tell His Honor about them.
A The inmates who were involved in the interviews,
who contradicted our reason for having taken the action,
seemed to gain stature with their peers; and much con-
versation then ensued around the institution, it was a
heightening of tension among both inmates and staff,
and the schedule on which we thought we could return
the institution to normal was prolonged; and because
of the state of tension that appeared to be there, we did
continue with additional security manpower for another
month longer.
The second ramification was that one of the inmates
interviewed, though the reporters had agreed with me
and said they would indicate to the inmates that their
names wouldn’t be [236] used, there was sufficient identi-
fying information in terms of age and offense and length
of sentence that one inmate who related the condition in
approximately the same manner that we had related it,
when we took the action, was identified to the general
population. He subsequently advised the staff that he had
been threatened as a result of this, and felt uncomfortable
in returning to the general population, when we offered
him an opportunity to do so. We thereby continued him
in segregated or locked status for another month and a
half longer, because of the fears that he had for his well-
being, and numerous contacts from his mother, who was
extremely fearful because of the same situation.
437
THE COURT: Mr. Katz, what has this got to do with
the case before me? Will you explain what your theory
is?
* This gentleman has described what happened when a
Governor intervened over the judgment of the penitenti-
ary officials, forcing the breaking of a reasonable rule.
Now, what has that got to do with this case?
MR. KATZ: Your Honor, Mr. Brewer has testified
as a result of and following from an interview which was
conducted under the circumstances which Plaintiffs con-
tend they should be conducted in the Federal Bureau of
Prisons—
THE COURT: I am not interested in what Plaintiffs
contend. You know what my opinion says. My opinion
would no more require this kind of an interview. My
opinion wouldn’t [237] require this kind of an interview.
I don’t, therefore, see what the problem is.
I thought I made absolutely clear in my decision that
discretion was going to remain in the wardens to deter-
mine some of these matters on an individual basis. Here
the warden says, in his judgment, it shouldn’t have hap-
pened; he got overruled on political or other reasons in
Iowa; and he got into some trouble.
There isn’t even any indication that these men had
sought an injterview or in advance had agreed to be inter-
viewed. I have trouble focusing on its relation to the
case before me. It is an interesting story and I am
glad to have the benefit of it in the record.
MR. KATZ: Your Honor, he has testified that the
interviewees did achieve enhanced status as a result of
the interviews and the published stories as inmate lead-
ers. That is the point we are trying to make.
THE COURT: In that sense, I understand that.
MR. KATZ: This is basically what we are trying to
show with his testimony.
THE COURT: I just wanted to be sure that the
United States understood what the issue was before me.
It has been clouded throughout this proceeding bcause
of the unwillingness of the United States to sit down,
as I ordered, and work out a reasonable form of order
with the Plaintiffs. It was adamantly [238] refused, al-
438
though I ordered it. I think, to some extent from the
hearings and the kind of testimony you have presented to
me, thinking it over last night and thinking about it
this morning with this witness, that there has been some
failure on the part of the Court’s decision to communi-
cate to the United States what I think is involved in the
case.
You go ahead. I just wanted to be sure I understood
what your position was.
May I ask you to wait a moment? I want to see
counsel at the bench here in another matter briefly.
(Whereupon, the proceedings were temporarily sus-
pended. )
THE COURT: Excuse me, Mr. Katz. I am sorry
about the interruption. With a holiday coming up, there
are always some unexpected matters.
Warden, there is one aspect of this that perhaps |
didn’t fully understand. Did these men, in each instance,
the men that were interviewed, the six men, I believe you
said—
THE WITNESS: Right, sir.
THE COURT: —that were interviewed, did they have
a choice in the matter?
THE WITNESS: The reporters were asked to solicit
the inmates’ permission; and our policy also contains a
form for this purpose and to provide us with a copy
of the form. ‘
THE COURT: So in each instance, they had agreed
to being interviewed?
12391 THE WITNESS: After they were called to
the interview room, they did agree.
THE COURT: But not in advance?
THE WITNESS: Not in advance.
THE COURT: Were members of the prison admin-
istration present at the interviews?
THE WITNESS: We had an officer outside the inter-
view room but we had no one present within the room.
THE COURT: You had no overhearing?
THE WITNESS: No monitoring.
THE COURT: All right, thank you.
489
BY MR. KATZ:
Q I would like to ask you what other experience
you have had under the operation of your policy state-
ment. How many requests have you had for interviews
within the last year?
A In the last year, there were approximately a dozen
requests.
Q And did you deny any of them?
A I think there were four requests that were denied,
this one and three more.
Q Why were the others denied?
A Well, one was denied because it appeared that the
reason for the interview was to picture the inmate de-
sired to be interviewed as a hero, as far as the establish-
ment and staff were concerned, because he had given
assistance to an officer [240] in a serious situation. It
was my feeling that that would create adverse pressure
on him within the inmate group; and I denied it.
The other one was a manpower denial, based on the
number of people that were desired to be interviewed. I
don’t recall the other one. I think my assistant denied it.
Q Do you have any opinion, based on your experi-
ence, as to whether or not the press attention given to
inmates tends to promote any leadership characteristics?
A I think the manipulative individuals who tend to be
more verbal about problems within and contrary to the
best interests of the institution are seemingly the ones
more likely to gain this attention; and when they gain
it, they do enhance their stature within the peer group
within the community. °
Q Do you perceive any difference in this phenomenon
when on the one hand the contact with the press is
achieved by correspondence and on the other hand if the
press comes to the prison and conducts an interview with
the individual?
A The correspondence contact is a more generally
available avenue to all inmates, whereas it appears to me
that the interviews tend to focus on this certain group
of inmates.
—
THE COURT: So that if a newspaper got a letter
from one of these leaders, or Big Wheels, or whatever
you call them, and it was published in full text on the
front page of the local paper, and it came back into the
prison, that wouldn’t have any [241] real effect on the
man’s stature? It wouldn’t influence it at all? It would
be only if he had talked to the man?
THE WITNESS: We have had that thing to happen
and it didn’t seem to have any great effect on the gen-
eral climate of the institution, as did the interview situ-
ation. ,
THE COURT: Is it your testimony that every time
there is an interview, it has this effect or only some
times?
THE WITNESS: I would have to say that sometimes.
THE COURT: So it must depend in part on the man?
THE WITNESS: It would depend—
THE COURT: On the inmate.
THE WITNESS: It would depend in part on the
man, the climate in the institution, the situation at the
time.
BY MR. KATZ:
Q When the press comes into the penitentiary to con-
duct an interview, is the fact that this interview is being
conducted readily known to the institution at large?
A It becomes almost immediately known.
MR. KATZ: Will you indulge me a moment, Your
Honor.
At this time, I move Government’s Exhibits 7, 8 and
9, for identification, into evidence as Government’s Ex-
hibits 7, 8 and 9.
THE COURT: They may be received without ob-
jection.
(Whereupon, Government’s Exhibits Nos. 7, 8 and
9 were received in evidence.)
440
te
441
[242] MR. KATZ: Your witness.
CROSS-EXAMINATION
BY MR. CALIFANO:
Q Is the policy still in effect?
A Yes, it is.
Q Did any of the interviews you granted occur after
this incident? Have you granted any interviews since
November 19717
A Yes, there have been interviews granted since that
time of a human interest nature.
MR. CALIFANO: I have no further questions.
THE COURT: Thank you very much, Warden. You
are going to be able to get back all right for the turkey.
THE WITNESS: I think so.
THE COURT: Good.
(Witness excused.)
THE COURT: Now, you have, then, a witness, Mr.
Califano?
First of all, Mr. Katz, do you have any other witnesses?
MR. KATZ: Your Honor, we have no further wit-
nesses.
THE COURT: All right, fine. We are a little con-
fused as to the order of proof because I agreed and Mr.
Califano agreed that you could put on your case, your
material, in the middle of the Plaintiffs’ case. Perhaps
if there are documents, [243] we can take care of those
later. It might be advantageous to dispose of the testi-
mony first and then we can deal with the housekeeping
matters.
MR. KATZ: Your Honor, at this time I have three
documents which I would like to offer into evidence,
copies of which have been furnished to the Plaintiffs.
THE COURT: Defendants’ 10, 11 and 12.
MR. KATZ: Government’s Exhibit 10, is a volume
entitled Federal Bureau of Prisons Statistical Report,
Fiscal Years 1969 and 70.
THE DEPUTY CLERK: Defendant Government’s
Exhibit 10—
442
THE COURT: Mark it in evidence.
THE DEPUTY CLERK: — in evidence.
(Whereupon, the volume entitled Federal Bureau
of Prisons Statistical Report, Fiscal Years 1969 and
70, was marked Government’s Exhibit No. 10 and
received in evidence.)
MR. KATZ: Government’s Exhibit 11 is a pamphlet
entitled, United States Department of Justice, Federal
Bureau of Prisons, Biennial Report for 1970-71.
THE COURT: In evidence.
THE DEPUTY CLERK: Marked as Defendant Gov-
ernment’s No. 11 in evidence.
[244] (Whereupon, the pamphlet entitled United States
Department of Justice, Federal Bureau of Prisons,
Biennial Report for 1970-71, was marked Govern-
ment’s Exhibit No. 11 and received in evidence.)
MR. KATZ: Defendants’ Exhibit 12, a chart entitled,
Statistical Data Regarding the Number of Federal Pris-
oners in Bureau of Prison Institutions in the Following
Categories, as of October 23, 1972.
THE COURT: Is that agreeable to you? I haven't
seen that one.
MR. CALIFANO: Yes, Your Honor.
THE COURT: In evidence. I would like to see that,
Mr. Clerk, after you record it.
THE DEPUTY CLERK: Marked as Defendant Gov-
ernment’s No. 12 in evidence.
(Whereupon, a chart entitled, Statistical Data Re
garding the Number of Federal Prisoners in Bureau
of Prison Institutions in the Following Categories
as of October 23, 1972, was marked Government's
Exhibit No. 12 and received in evidence.)
[245] MR. KATZ: I am finished.
MR. CALIFANO: Your Honor, we have only one
further witness, Director Carlson, and then we have
some depositions and documents to put in.
THE COURT: Let’s take care of Mr. Carlson first.
WHEREUPON—
NORMAN A. CARLSON
was called as a witness by the Plaintiffs, and having
been first duly sworn, was examined and testified as
follows:
DIRECT EXAMINATION
BY MR. CALIFANO:
Q Mr. Carlson, I would like to show you a document—
MR. CALIFANO: Would you mark this, please.
THE DEPUTY CLERK: Plaintiffs’ Exhibit No. 12,
marked for identification.
(Whereupon, Director’s letter of January 13, 1972
and attached Policy Statement was marked Plaintiffs’
Exhibit No. 12, for identification.)
BY MR. CALIFANO:
Q Mr. Carlson, would you please state your name,
address and present occupation for the record?
A Norman A. Carlson, 8702 Piccadilly Place, Spring-
field, Virginia, Director of Federal Bureau of Prisons,
Department of [246] Justice.
Q Mr. Carlson, I show you Plaintiffs’ Exhibit 12, for
identification, which you may recall was attached to a
motion Plaintiffs filed subsequent to the March 23 hear-
ing. I ask you whether or not that is an accurate copy
of the Director’s letter of January 13, 1972, and the
Policy Statement attached to that Director’s letter?
A To the best of my knowledge, it is.
Q Thank you.
MR. CALIFANO: Would you mark this for identifica-
tion, please.
THE DEPUTY CLERK: Plaintiffs’ Exhibit No. 13,
marked for identification.
(Whereupon, affidavit of Mr. Carlson dated Novem-
ber 28, 1971 was marked Plaintiffs’ Exhibit No. 13,
for identification.)
444
MR. CALIFANO: Will you pass that to the Judge
BY MR. CALIFANO:
Q Mr. Carlson, I show you Plaintiffs’ Exhibit No. 13,
marked for identification, which is an affidavit, apparently
signed by you, in a case in Seattle, dated the 28th of
November, 1971, and ask you whether or not that is your
affidavit?
A Yes, it is.
MR. CALIFANO: Your Honor, I move that Plaintiffs’
[247] Exhibits 12 and 13, marked for identification, be
placed in the record.
THE COURT: I would like some explanation of the
affidavit. I don’t understand the affidavit.
I will receive the affidavit but—
THE WITNESS: Do you want my response to the
affidavits?
THE COURT: Yes.
THE WITNESS: There was a subsequent affidavit
filed, which explained fully the difference between this
affidavit and another one, before the Court out in the
Western District in Washington. The other affidavit
was signed by me several months later.
THE COURT: Is this in error, are you saying?
THE WITNESS: No. At the time this was under
consideration, we did propose or consider a policy which
would have permitted interviews by the press to inmates.
Subsequent to that, and after very careful deliberation
and study and discussion with our wardens, and other
people in the correctional field, we did change our mind
and did not institute the policy that we indicated in this
earlier affidavit.
This was all explained to the Court by a subsequent
affidavit, which was filed out there. I think it is available
to the gentlemen.
THE COURT: Well then, I think we ought to have,
before this proceeding, the other affidavit as well, so the
248] record is complete.
MR. CALIFANO: It is fine with us.
THE COURT: I don’t think we ought to take one
document out of context.
445
MR. CALIFANO: We did not know about the other
affidavit.
THE WITNESS: It was filed very clearly in this
case.
MR. CALIFANO: Do you have the other affidavit?
MR. KATZ: Do you have any more questions of Mr.
Carlson?
THE COURT: Wait a minute. I asked you, Mr. Katz,
do you have another copy of that affidavit?
MR. KATZ: Yes, Your Honor.
THE COURT: May I see it?
MR. KATZ: Yes, Your Honor.
I ask that this be marked as Government’s Exhibit 13.
THE DEPUTY CLERK: Defendant Government’s
Exhibit No. 13, marked for identification.
(Whereupon, the subsequent Carlson affidavit was
marked Government’s Exhibit No. 13, for identifi-
cation.)
THE COURT: Thank you.
I will receive the affidavit that you have offered, if you
offer Government’s 13 with it. Otherwise, I won’t [249]
receive it.
MR. CALIFANO: Your Honor, absolutely. We were
not aware of this until just now.
THE COURT: Then both Defendants’ Exhibit 13 and
the affidavit which was marked Plaintiffs’ 13 will be re-
ceived in evidence so the full situation is there.
(Whereupon, Plaintiffs’ Exhibit No. 18 and Govern-
ment’s Exhibit No. 13 were received in evidence.)
— CALIFANO: And the memorandum, Your
onor
THE COURT: I haven't ruled on that. I think I need
md testimony about that other document before I act
on i
_Mr. Katz is asking you whether you are going to ask
him anything about it or whether you are not. I am
going to wait until the witness has completed his testi-
mony before I rule on the admissibility of the other
document which I think is Plaintiffs’ 12.
446
BY MR. CALIFANO:
Q Mr. Carlson, in your affidavit, which is Defendants’
13, your second affidavit, you state that—
A I don’t have a copy of that.
THE COURT: He can have the copy that was handed
me. I don’t need it. That is Government’s 13 you are
talking about now.
[250] BY MR. CALIFANO:
Q You indicated at the bottom of the first page that:
“This policy area was also a subject of discussion
with over 40 state correctional administrators at a
recent conference in Atlanta, Georgia, and it was
reviewed with officials in the Department of Justice
having a particular interest in this field.”
Was that the Attorney General?
A No, it was not. As I recall, it was in the United
States Attorney’s office, United States Marshal’s office,
and others that had direct relationship with the matter
of individual interviews by the press.
MR. CALIFANO: I have no further questions, Your
Honor.
CROSS-EXAMINATION
BY MR. KATZ:
Q Mr. Carlson, you have before you the Plaintiffs’
Exhibit 13.
A Les, I do.
Q When was this affidavit filed?
A December 28, 1971.
And this was filed where?
A In the United States District Court for the Western
District of Washington.
What was the policy statement referred to in that
affidavit of 1966?
{[251] A The previous policy statement had no contact
whatsoever between the press and individual inmates,
either by interviews or by correspondence.
447
Q And was this previous policy statement at issue in
this lawsuit in the State of Washington?
A Yes, it was the subject of litigation.
Q And w
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