more on Don't talk to Feds: Stark warning about scientist who tried to do the right thing

[David Farber <dave () farber net>]

Begin forwarded message:

From: Titus Brown <titus () caltech edu>
Date: June 1, 2005 11:22:15 AM EDT
To: David Farber <dave () farber net>
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 () iecc com>
-> Date: June 1, 2005 10:23:35 AM EDT
-> To: dave () farber net
-> Cc: Declan McCullagh <declan () well com>
-> 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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