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<nettime> More on the federal bioterror mischief
Bruce Sterling on Thu, 2 Jun 2005 07:31:26 +0200 (CEST)

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<nettime> More on the federal bioterror mischief

*Hey, justice is served: there was nothing going on there that a million
dollars in family money and some unnecessary jail time
wouldn't put right in the end.  "Common sense prevails,"



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 c?l?bre 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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