defendant has noted, he has been held under the SAMs for almost one year. Yet, the
defendant does not identify examples of where the preparation of the defense was actually
disrupted, or the government was provided with information that it would not otherwise be
entitled.? The defendant discusses these concerns in vague generalities, yet with almost a
year’s experience to reflect upon, the defendant is apparently unable to articulate any incident
that exemplifies these concerns.

Finally, in a similar vein, the defendant makes broad allegations that the SAMs have
created a chilling effect on the attorney/client relationship — “it cannot be seriously argued that
the SAMs imposed here do not have a significant impact on attorney/client candor.” See
Defendant’s Motion, p. 4. Yet the defendant fails to explain or amplify this statement. At the
risk of appearing overly simplistic, the government simply fails to see the logic of this
argument. The candor between client and attorney seems likely to improve because the
confidentiality of the communications between the attorney and client are enhanced through
the SAMs. The confidentiality between attorney and client is the bedrock of the
attorney/client relationship. If such confidentiality is further ensured by the SAMs, the logical

conclusion is that the level of candor would be increased not decreased.

2 The undersigned is more than willing to accommodate a more expedited clearance
process if one is needed. Similarly, if defense counsel believes that the government is gaining
some unfair advantage through the pre-clearance process, the government is willing to establish
some type of process to segregate information regarding potential witnesses from the prosecution
team.

4.


to constitutional infringement if First Amendment restrictions are an incident of some other
legitimate government interest).

As to the SAMs’ restrictions on counsel, counsel’s comments to the press are guided
by Northern District of Ilinois Local Rule 83.53.6, which sharply restricts those matters that
defense counsel could publicly disclose. Defense counsel fail to explain how the SAMs is
more restrictive than the LR 83.53.6. Moreover, early on in this litigation, defense counsel
sought a change of venue based on pretrial publicity, alleging that the level of pretrial
publicity afforded their client created an unfair atmosphere for their client. It is difficult to
understand why defense counsel would want to communicate publicly about the case, given
their concerns regarding the notoriety already surrounding this case.

For these same reasons, defense counsel’s claim that their Due Process rights to
practice their profession have been infringed upon by the SAMs is equally without merit. If
limitations on commenting on pending litigation created a Due Process violation, then LR
83.53.6 and other similarly situated professional and ethical rules would run afoul of the First

Amendment. Defendant has cited no case supporting this position.

-7-



attorney affirmation provision is not enforceable, and has allowed defense counsel to visit
with the defendant without requiring defense counsel to execute the Attorney Affirmation.
SIXTH AMENDMENT RIGHT TO COUNSEL

Defendant’s first argument is that the SAMs “impair Hale’s Sixth Amendment right
to counsel by placing numerous restrictions on the attorney-client relationship.” See
Defendant’s Motion, p. 2. In support of this argument, the defendant reviews the breadth of
restrictions enumerated in the SAMs. However, the defendant fails to explain how any of
these restrictions impinge on his Sixth Amendment right to counsel.

For example, the defendant argues that “[t]he SAMs’ limitation on counsel’s
communications with third parties severely restricts counsel’s ability to freely exchange
information with experts, investigators, and witnesses in order to prepare an adequate
defense.” Yet, the defendant acknowledges that the SAMs allow counsel to “repeat the
contents of the contents of their conversations with Hale to third parties [provided that the
communication is] ‘for the sole purpose of preparing the inmate’s defense and not for any
other reason.’” See Defendant’s Motion, p. 2. It is difficult to discern how the SAMs
qualitatively impinges on defendant’s Sixth Amendment rights in this regard.

As another example, the defendant argues that “the pre-clearance required for
witnesses and experts themselves who seek to meet with Hale can disrupt the preparation of
the defense, and would also provide information to the government to which they would

otherwise not be entitled.” (Emphasis added.) The problem with this argument is that as the



Defendant’s broad, factually unsubstantiated claims regarding Sixth Amendment
issues, are not a basis for this Court to modify the conditions of the SAMs.

ATTORNEY GENERAL HAS THE AUTHORITY TO APPLY
THE SAMs TO DEFENSE COUNSEL

The Attorney General’s authority to apply certain restrictions regarding means of
communication between the defendant and his counsel is inherent in the regulation
authorizing the SAMs.

First, 28 C.F.R. § 501.3 (the administrative authority providing for the implementation
of SAMs) provides that upon direction of the Attorney General, the Director, Bureau of
Prisons, may authorize a Warden “to implement special administrative measures that are
reasonably necessary to protect persons against the risk of death or serious bodily injury.”
28 C.F.R. § 501.3(a) (emphasis added). The C.F.R. goes on to list what “special
administrative measures ordinarily may include.” Jd. The SAMs enumeration of certain
responsibilities that defense counsel is required to accept regarding communication between
the defendant and counsel fits comfortably within the category of “special administrative
measures that are reasonably necessary to protect persons against the risk of death or serious
bodily injury.” Contrary to defendant’s position, the Attorney General, through the
discretionary act of the Director, Bureau of Prisons, has not exceeded either his delegated
authority, or the scope of the applicable C.F.R.

Moreover, as the Seventh Circuit discussed in Falcon v. United States Bureau of

Prisons, 52 F.3d 137, 139 (7th Cir. 1995), a pretrial detainee dissatisfied with his conditions

-5-



CONCLUSION

For those reasons stated above, the government respectfully requests that this Court

deny defendant’s motion to prohibit the Special Administrative Measures now in place.

By:

Respectfully submitted,

PATRICK J. FITZGERALD
United Stafeg Attorney

DM karl [hetetenan

M. David Weisman

Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois 60604

(312) 353-2119



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
) 03 CROI1
v. )
) Judge James T. Moody
MATTHEW HALE ) (sitting by designation) D OCKE TED
)

FEB 1 9 2004

NOTICE OF FILING AND CERTIFICATE OF SERVICE

TO: Thomas Durkin F I L E D

Patrick Blegen.

Durkin & Roberts © FEB I 8 2004

53 W. Jackson Blvd., Suite 615 Mi

Chicago, IL 60604 curr oe W. DoBEivs
“S. DISTRICT

PLEASE TAKE NOTICE that on February 18, 2004, the undersigned filed the following
documents in the above captioned case:

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION
TO PROHIBIT SPECIAL ADMINISTRAT: MEASURES

M. David Weisman
Assistant United States Attomey

TIFICATE OF SERVICE

It is hereby certified that service of this attached filing has been made on the above-noted counsel
via hand delivery this 18" day of February, 2004.

BY: VA buted J beaver

M. DAVID WEISMAN
Assistant United States Attorney

dunes Lwzesia’sin

hes Hi G1 daa AU

ONILEWSO C3 OLS
9-04 |


of confinement as they relate to his right to counsel should seek redress under 18 USC.
§ 3142(i). Because the SAMs completely comply with the provisions of § 3142(i), this
Court’s inquiry should be satisfied under the dictates of Falcon. See United States v. Arnout,
2002 WL 31744654, *1 (2002) (Conlon, J.).

THE SAMs DOES NOT VIOLATE DEFENDANT'S OR COUNSEL’S
FIRST AMENDMENT RIGHTS

Defendant next contends that his and his counsel’s First Amendment tights are
infringed upon through the SAMs. Defendant expresses a particular concern regarding his
ability to communicate with members of the press.

In Saxbe v. the Washington Post, 417 U.S. 843, the Supreme Court affirmed limitations
established by the Bureau of Prisons regarding Press access to inmates. In Saxbe, the Court
found that as long as the press had access equal to the general public (or greater) than no First
Amendment violation existed. “The proposition that the Constitution imposes upon
government the affirmative duty to make available to journalists sources of information not
available to members of the public generally finds no support in the words of the Constitution
or in any decision of this Court.” Jd., at 850. In the instant case, the press’s access to the
defendant is no less than the general public’s access to the defendant. Thus, it is difficult to
understand how the SAMs infringes on defendant’s First Amendmentri ights. The government
has established that the defendant poses a danger to the community, and the limitations
contained in the SAMs are intended to provide certain protection to the public at large. See

Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9" Cir. 2002) (pretrial detainees are not subject

6-



UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION DOCKETED
UNITED STATES ) 03 CR11 FEB 1 9 2004
)
v. ) Judge James F"
) PLED
MATTHEW HALE )
FEB 1 8 2004

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION |.
TO PROHIBIT SPECIAL ADMINISTRATIVE ME .
‘TO PROHIBIT SPECIAL ADMINISTRATIVE MEASHRES a rmicr court

The UNITED STATES, through its attorney, PATRICK J. FITZGERALD, United
States Attorney for the Northern District of Illinois, responds as follows to defendant’s motion
to prohibit special administrative measures:

BACKGRO

Since March 3, 2003, the defendant has been detained at the Metropolitan Correctional
Center - Chicago under Special Administrative Measures (hereinafter “SAM” or “SAMs”).
The SAMs govern defendant’s contact with his counsel as well as contact with family
members. In general, the SAMs institute measures that are intended to limit defendant’s
ability to send or receive information that could be used to solicit crimes of violence. To
accomplish this goal, the SAMs provide for monitoring of social visits between defendant and
family members, the monitoring of social telephone calls, and the monitoring of non-legal
mail sent or received by the defendant. Additionally, there are other limitations placed on

defendant’s access to other inmates means of communicating with the associates
ander means of co g

other than family members. _ |
Res ky 81 gaa 40

SNILBH500 £55 07.4.202Y 0
9-300" |


The SAMs place virtually no limitation on defendant’s access to privileged
communication with his counsel. Indeed, the SAM sets out a cadre of affirmative rights of
access to counsel including the right to privileged conversations; the right to have
simultaneous legal visitors; the right to legally-privileged telephone calls; the right of defense
counsel’s staff to participate in conversations with defendant; the right of the defendant to
initiate legally-privileged telephone calls; the right to receive legal documents from defense
counsel; and the right of defense counsel to disseminate information provide by the defendant
to third parties provided that such dissemination is related to the preparation of the defense
of the defendant.’ Moreover, the SAMs provide that defendant’s conversations with his
counsel will remain privileged. Various provisions of the SAMs explicitly state that the
provision does “not allow monitoring of attorney/client privileged communications.”

The SAMs does require that prior to having privileged conversations with defendant,
defense counsel must sign an affirmation (hereinafter “attorney affirmation”) indicating that
they are aware of the SAM’s restrictions and that “they will not forward third-party messages

to or from the inmate.” Since the issuance of the SAMs, this Court has determined that the

' In enumerating these rights, the government does not mean to suggest that
providing such rights to defendant is a magnanimous gesture. The government recognizes the
importance of defendant’s right to counsel, and the concomitant need for defense counsel to use
the information provided by the defendant to fully explore and develop a defense in this case.
The SAMs honor the defendant’s right to counsel and counsel’s right to effectively use
information provided. The itemization of these provisions of the SAMs is intended to illustrate
that the SAMs provide defendant with meaningful access to his counsel.

-2-