[IP] more on Don't talk to Feds: Stark warning about scientist who tried to do the right thing
Begin forwarded message:
From: Titus Brown <titus@xxxxxxxxxxx>
Date: June 1, 2005 11:22:15 AM EDT
To: David Farber <dave@xxxxxxxxxx>
Subject: Re: [IP] more on Don't talk to Feds: Stark warning about
scientist who tried to do the right thing
-> Begin forwarded message:
->
-> From: John Levine <johnl@xxxxxxxx>
-> Date: June 1, 2005 10:23:35 AM EDT
-> To: dave@xxxxxxxxxx
-> Cc: Declan McCullagh <declan@xxxxxxxx>
-> Subject: Re: [IP] Don't talk to Feds: Stark warning about scientist
-> who tried to do the right thing
->
->
-> >[If the facts are as the ProMED editors claim they are (and
ProMED is
-> >a respectable source), this is beyond a disgrace. The federal agents
-> >and prosecutors responsible for this outcome should be the ones
-> >dishonored, fined, and imprisoned. Of course they're not. Remember,
-> >it is rarely in your own interest to cooperate with the Feds without
-> >a lawyer's involvement. If people begin to understand this, perhaps
-> >some good can come from Dr. Butler's travails. --Declan]
-> >
->
-> Google News says there's an article in the May 26 "Science" about his
-> appeal, but you need to be a subscriber to see it. Perhaps someone
-> who subs can tell us what happened.
Dave, here you are:
http://www.sciencemag.org/cgi/content/full/308/5726/1241b
SCIENCE AND THE LAW:
Butler Gets Break on Pending Appeal
Jocelyn Kaiser
Infectious-disease researcher Thomas Butler will be back in the
headlines next month when a federal appeals court in New Orleans,
Louisiana, hears his request to overturn his conviction for fraud and
mishandling plague samples. Butler, who was sentenced to 2 years in
prison, became a cause célèbre for scientists worried about the
government's zeal to combat bioterrorism. Legal experts say his
appeal faces an uphill fight. But it's less risky than it once seemed
now that the federal government has dropped a counter-appeal seeking
an even stiffer sentence.
Butler, 63, was arrested in January 2003 after he reported that 30
vials of plague bacteria were missing from his lab at Texas Tech
University in Lubbock, and the incident escalated into a bioterror
scare. He was later charged with 69 criminal counts, including
mishandling samples, tax evasion, and lying to investigators. A jury
acquitted him of 22 charges but convicted him of violating export
rules on shipping a package of bacteria and of steering clinical
research payments to himself rather than to Texas Tech (Science, 19
December 2003, p. 2054). In March 2004, a federal judge, citing
Butler's contributions to humanity, sentenced him to 2 years rather
than the 9-year term specified by federal sentencing guidelines.
In August, Butler asked the appeals court to overturn the conviction
or order a new trial. The move triggered a cross-appeal from
prosecutors arguing that his reduced sentence violated federal
sentencing guidelines (Science, 22 October 2004, p. 590). Fortunately
for Butler, the U.S. Supreme Court in January declared that the
sentencing guidelines are not mandatory. The decision, United States
v. Booker, led the government to withdraw its cross-appeal, which was
dismissed on 1 March. However, Butler could still receive a longer
sentence if a new jury reaches different conclusions, notes Larry
Cunningham, a Texas Tech law professor. "It's not a given that he
would be entitled to a better sentence," he says.
Butler's supporters are hoping for vindication. In a commentary in
the 1 June issue of Clinical Infectious Diseases, 14 scientists and
physicians call for his release so that "common sense [can] prevail."
Lead author Barbara E. Murray of the University of Texas Medical
School in Houston worries that a similar fate could befall any
researcher. "We're in an environment in which if somebody wanted to
get us, they could," she says.
In his appeal, Butler argues that the trial was flawed by six "legal
errors," including trying him on charges related to his handling of
the plague samples and his financial dealings simultaneously, relying
on vague university policies to find criminal fraud, and refusing to
allow certain university e-mails and testimony. The government
responded that the charges were "properly joined" because they showed
a "scheme" to defraud the university and that the testimony and
documents were "immaterial." Its brief also asserts that the
university policies weren't critical to his fraud conviction because
Butler's "secretive, self-serving conduct was ample to show he had
the intent to defraud." Cunningham says that "very few criminal cases
get reversed" by the Fifth Circuit Court.
Meanwhile, Butler's attorneys and family are hoping that he will be
released by Christmas. A legal defense fund is helping to support his
appeal, which is being handled at a reduced rate by Jonathan Turley
of George Washington University Law School in Washington, D.C., and
attorneys from Bryan Cave LLP. The initial trial cost Butler's family
$1 million, Turley notes.
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