# Appendix — Saxbe v. Washington Post Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0329%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 417 U.S. 843 ## Text 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 th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0329%3A02. Public record. Not legal advice.