Posted on 12/20/2003 9:19:35 AM PST by Lessismore
Thomas Butler was a sought-after plague expert, with a clinical trial in Tanzania that promised important results for biodefense. Then he was charged with mishandling plague samples and lying to the FBI. This month, a jury convicted him of financial wrongdoing. Who is Thomas Butler, and what lessons do his trials hold? Sitting on an airplane preparing to take off from Dar es Salaam, Tanzania, American microbiologist Thomas Butler had some time to reflect on his rising fortunes. Stowed in the plane's belly was a footlocker containing carefully packed specimens from more than 60 Tanzanian bubonic plague victims. His journal was full of data--painstakingly hand copied from hospital records--that detailed how the patients had responded to a new antibiotic. The 2002 clinical trial was a scientific coup, and Butler believed that the results, once published in a top-tier medical journal, would help solidify a nervous nation's defenses against bioterror. Not incidentally, they would also send his 30-year career in an exciting new direction. In 1969, as a young Navy researcher in Vietnam, Butler had become fascinated by plague--the "Black Death" that had once decimated European populations but was now largely confined to remote, impoverished parts of the world such as Tanzania. He soon moved on to other diseases. But now, Butler, 60, was reunited with his first scientific love.
After three visits to Tanzania, Butler was on the verge of becoming perhaps the United States' hottest plague scientist. The work would confirm his reputation as a can-do researcher known for getting results under even the most primitive conditions. Other scientists were increasingly interested in his efforts, and the U.S. Food and Drug Administration (FDA) was practically begging him to apply for a $700,000 research grant. "How many people have a world expert in plague just an e-mail away?" Butler had bragged in a message to an FDA official.
The demand for Butler's talents couldn't have come at a better time. After 15 years at Texas Tech University Health Sciences Center in Lubbock, Butler was feeling frustrated and exhausted by an increasingly bitter battle with school administrators over his clinical research and financial dealings. The idea of leaving Lubbock had crossed his mind, and the results of the Tanzanian trial promised to make him more attractive to other institutions.
Yet, as he stared at other jets taxiing on the tarmac on the morning of 14 April 2002, the veteran clinician also mulled some potential problems, he noted in his journal. Among them were the "challenges of getting organisms back" into the United States, he wrote. The rules had tightened drastically since Butler had last encountered plague in Brazil in the late 1970s. A British colleague had even warned him "that in the U.K. you can be arrested for bringing in pathogens," Butler wrote.
Butler would soon learn that U.S. authorities could be just as aggressive as their British counterparts. On 15 January, 2 days after reporting that 30 vials of plague bacteria were missing from his lab, Butler was shackled and thrown into a Lubbock jail, charged with lying to federal agents about the fate of the vials and illegally importing the Tanzanian samples into the country. At that moment, "my stomach froze in my chest," Butler said later.
Seven months after his arrest, the government indicted Butler on 69 charges. In addition to allegations that he had mishandled the plague samples, prosecutors accused him of defrauding his university of clinical trial fees and cheating on his taxes. Butler's prosecution became a cause célèbre for those who felt that the government was using him to scare scientists into obeying strict new bioterror-prevention laws. They urged the government to drop the case, predicting that it would drive researchers out of biodefense research and undermine national security. But on 1 December, a jury convicted Butler on 47 counts. He faces up to 240 years in jail and millions of dollars in fines.
How Butler went from hot property to convicted felon is a tangled tale. It reveals a scientist who was able to pull off what others couldn't, as well as one whose penchant for cutting corners ultimately ruined his career and fortune. The jury's sometimes puzzling verdict, however, sends anything but a clear message.
To reconstruct Butler's path, Science sent two reporters to Lubbock to attend his trial, review court documents, and conduct interviews. Unless otherwise noted, all direct quotes in this story come from trial testimony or documents entered into evidence. Many of those most knowledgeable about the case, including Butler himself, have been silenced by a court-imposed gag order. But their testimony provides a detailed, if sometimes disputed, record of an extraordinary career and its controversial demise.
A calming hand
Lubbock, Texas, has two industries: cotton and college students. And although the seemingly endless, pancake-flat farm fields that surround the drab town are still its soul, it is the sprawling campus of Texas Tech University that is its heart. The school's 30,000 students and staff pump more than $1 billion a year into the local economy, and thousands of fans avidly follow the fortunes of its sports teams. Texas Tech graduates and faculty also figure prominently in the community: The judge in Butler's case, "Maximum Sam" Cummings, is an alum, for example, and the lead prosecutor, U.S. Attorney Richard Baker, teaches at Texas Tech's law school.
Butler became part of that cozy community in 1987, when the Tennessee-born physician and his Swedish wife, Elisabeth, arrived from Case Western Reserve University in Cleveland, Ohio. As head of the health center's infectious-disease division, Butler quickly became known as an excellent doctor and teacher. A former assistant, Kimberly Bethune, testified that the tall, snowy-haired physician could put patients at ease simply by placing a hand on their shoulder. And although other doctors might resent having residents bug them on weekends, Butler graciously answered calls at all hours. He was also adept at enrolling patients in clinical trials for drug companies--a significant source of cash for the health center.
But 3 years ago, one of those trials placed Butler on a collision course with Barbara Pence, the health center's associate vice president for research. The confrontation would ultimately cause a university panel to withdraw its approval for him to perform human research, and it would trigger financial investigations that prosecutors claim caused him to instigate a bioterror scare.
Pence, a slight, middle-aged pathologist, is a Texas Tech graduate who has spent her entire career at the university. She holds one of the health center's most sensitive jobs, overseeing its burgeoning research budget and its Institutional Review Board (IRB). The government-mandated IRB--composed of a shifting cast of researchers, nurses, clergy members, town folk, and sometimes even ex-convicts (prisoners are often study subjects)--is responsible for protecting patients who participate in clinical studies. No trial can start without its blessing.
Pence testified that in late March 2001, the IRB expressed serious concerns about one of Butler's trials. Together with more than 150 other doctors across the nation, Butler was testing the efficacy of a drug developed by Chiron Corp. of Emeryville, California, to treat sepsis, a massive blood infection that often results in death. Butler had told the IRB that he expected up to 50% of the severely ill patients enrolled in the study to die. But during a routine review, IRB members noted that about 70% of Butler's first small group of patients had died and that some paperwork appeared to be missing. The panel decided to suspend the trial and ask for more information. A month later, after Butler complied, it allowed the study to resume.
Still, Butler was upset. In particular, he was angry at Pence, believing that she was at least partly responsible for the "very abrupt and disrespectful" suspension of the trial--the first of his career. The "terrible experience," he testified, damaged his reputation and "essentially ruined" his relationship with Chiron. It also triggered a time-consuming review by the FDA; the agency ultimately cleared him.
In mid-2001, Butler filed a grievance against Pence, who tried unsuccessfully to convince university officials that his beef was with the IRB, not her. The opponents picked two faculty mediators to examine the issue, and in February 2002 they issued a report that criticized both Pence and Butler for missteps. And although Pence disagreed with some of the findings, she and Butler eventually signed a settlement statement.
The matter didn't end there, however. Pence, who said she was unaware that FDA had given Butler's sepsis trial a clean bill of health, was still worried about the study, which had ended some months earlier. Four days after receiving the mediators' report, she asked health center auditors to investigate whether Butler had improperly billed some medical tests to the government or patients. Then, 9 days later, she asked Stacey Pugh, her clinical trials administrator, to review Butler's reporting of trial deaths and his adherence to the study's scientific protocol, according to court records. Butler considered the studies "retaliation" for his grievance, he testified. But Pence insisted that she was "just doing my job. ... There were dead people we couldn't account for."
Butler was decidedly uncooperative with both investigations, Pence and other health center officials testified. And Pugh's report, delivered in late summer of 2002, was highly critical of Butler. "I found a number of problems, some of which I thought were quite serious," Pugh testified. For instance, she alleged that Butler had improperly filed patients' consent forms, ordered tests before obtaining their consent, and then billed the patients instead of the study's sponsors. In September, acting on Pugh's report, the IRB wrote Butler that he had apparently violated federal regulations and Texas Tech policies in the sepsis study. It asked for an explanation--and fast.
In the meantime, Pence's office stumbled onto another serious matter. In late July 2002, during a routine telephone conversation about a paperwork problem, an employee of the Pharmacia-Upjohn (now Pfizer) pharmaceutical company in Kalamazoo, Michigan, mentioned to one of Pugh's staffers that the company had an unusual way of paying Butler for his clinical trial work. Typically, a Pharmacia official testified, the firm completed a single contract with each of its trial investigators, spelling out the payment for each enrolled patient. The money was generally sent to a special account at the investigator's university.
In Butler's case, however, Pharmacia had twin contracts with the scientist for several trials involving a diabetes drug. One of the contracts was signed by both Butler and a university official and specified a fee to be sent to the university. The other, signed only by Butler, specified a second, identical fee that was sent directly to Butler. Together, the split fees added up to the company's usual payment, about $6000 per patient.
Pence testified that she was stunned to learn of the arrangement and that it violated health center rules requiring all trial funds to go through the university. Pugh also "felt pretty stupid," she admitted, because it explained an oddity she had not understood in one of Butler's previous contracts. In that case, she noticed that Pharmacia was paying Butler only half of what it was sending to another health center researcher involved in the same trial. "I became a little angered with Pharmacia," she testified. "I thought they were trying to take advantage of Dr. Butler." But when the administrators contacted Butler and suggested that they might be able to double his fee, he told them "to butt out of it," said Pence.
When the split contracts came to light, it all made sense, Pence testified. She immediately turned the matter over to university investigators.
Into Africa
Within the small world of plague science, however, few scientists knew of Butler's troubles at Texas Tech. They saw only a researcher on a roll--and returning to his roots.
Butler's first brush with plague came in 1969 in South Vietnam, where the disease was common. After completing his Navy service, he returned several times as a civilian researcher at Johns Hopkins University in Baltimore, Maryland. But the work ended when Saigon fell to Ho Chi Minh's forces in 1975--Butler, in fact, was on one of the last planes carrying Americans out of the city. His last close encounters with plague came in Brazil in the late 1970s.
However, Butler kept up with the literature and published several book chapters and reviews--enough to retain his standing as an expert. That reputation propelled him back into the field in the late 1990s, when the threat of bioterrorism again made plague a hot topic. Experts had begun sounding the alarm after Kenneth Alibek, a former Soviet bioweapons researcher, revealed that the former superpower had mass-produced the microbe, which can kill in days when inhaled. Concerns deepened in 1995 when the U.S. government arrested microbiologist Larry Wayne Harris, who had links to extremist groups, for ordering plague microbes from a culture library under false pretenses. (The incident triggered Congress's 1996 creation of the first stringent rules for transferring dangerous microbes, which Butler allegedly violated.)
In 1999, Butler gladly accepted an invitation from the U.S. Army Medical Research Institute of Infectious Diseases (USAMRIID) in Fort Detrick, Maryland, to help produce a training video on how to recognize and treat a plague attack. As Butler and a group of experts huddled over a simulated victim, they began debating the best treatment, he recalled. A variety of antibiotics had been used to treat plague, but nobody knew which worked best or had the fewest side effects. A trial in humans would be the ideal way to answer the questions. But the logistical and ethical obstacles were daunting. Exposing healthy people to plague was out of the question, and most cases of the disease occur in the developing world. There are fewer than a dozen plague cases a year in the United States.
But Butler wasn't deterred. After studying several options, he rejected a return to communist Vietnam and decided that French researchers had the inside track in Madagascar. So Butler contacted researchers in Tanzania, and "they burst forth with enthusiasm," he said.
In 2001, Butler took a yearlong leave from Texas Tech to lay the groundwork for a Tanzanian trial, which he jump-started with his own funds. Early that year, he arrived in Dar es Salaam laden with medications, syringes, and cotton balls--a goodwill gesture to his collaborators--and met with Eligius Lyamuya, a well-known investigator at the Muhimbili Medical Center. Butler traveled to the mountainous Tanga region in northeastern Tanzania, where plague is endemic. There, using a spartan clinic as a base, he and his Tanzanian partners arranged for a side-by-side comparison of two antibiotics, doxycycline and gentamicin.
The team members agreed that the study would include drawing fluid samples from the "bubos," or hideously swollen lymph nodes, of the patients to confirm the presence of Yersinia pestis, the plague bacterium. Butler would then isolate the microbes--and share his cultures with the Tanzanians. The Tanzanian government had approved the study, whereas the Texas Tech IRB had exempted it from its review because Butler said he was just a consultant to the Tanzanian principal investigators (see sidebar, p. 2056).
After a long delay, the clinical trial finally began in early 2002. In Lubbock, Butler received word that his principal Tanzanian collaborator, William Mwengee, had enrolled the first of what would eventually become more than 60 patients.
By then, the 11 September terrorist attacks and October anthrax letters had moved bioterrorism to the top of the political agenda. Butler smelled new opportunities: "Idea in AM. Go after bioterrorism moneys for grant to work on plague," he wrote in one of his notebooks not long after 9/11. Indeed, scientists at three government agencies were eager to work with him; the uncertainty about plague antibiotics suddenly loomed large as a gap in national security.
FDA soon decided to fund his work by "buying" data from the Tanzanian trial, which one agency official at the time called a "truly unique asset." Plague researchers at the Centers for Disease Control and Prevention (CDC), meanwhile, agreed to confirm Butler's Tanzanian plague samples at their lab in Fort Collins, Colorado, the only lab in the U.S. certified to do so. And USAMRIID researchers were eager to add Tanzanian plague to their microbe collection. "We really want these strains," USAMRIID plague expert Russell Byrne would later e-mail Butler.
In April 2002, Butler returned to Tanzania on a 10-day trip to reap his scientific harvest. He hand copied patient records and then packed the fluid samples in dry ice and dropped them into his footlocker for the flight home. Despite the worries penned in his journal, however, Butler testified that he did not ask U.S. or U.K. officials for transport permits before boarding the plane--although he did have a letter from Tanzanian authorities. But he had no trouble clearing British customs when he arrived for a layover in London, where he checked into a hotel near Gatwick Airport.
At some point during his stay, Butler met on a London sidewalk with microbiologist John Wain, the Imperial College researcher who had once warned him about the U.K.'s increasingly aggressive enforcement of pathogen-transport rules. Butler popped open his trunk, he testified, and Wain gave him fresh dry ice to keep the vials cold. The next day, Butler flew into Dallas, Texas. As he passed through U.S. Customs, he did not declare his plague samples as "commercial merchandise," customs forms show. That act, the federal government later alleged, constituted smuggling.
More transport violations ensued, court documents show. On 23 June 2002, Butler drove 1200 kilometers from Lubbock to CDC's Fort Collins lab to get his samples tested--without the required government permits. On 9 September, he sent another set of plague isolates back to Tanzania in a FedEx box labeled "laboratory materials"--and without a needed export permit. And on 1 October, Butler flew from Lubbock to Washington, D.C., carrying a third set of samples. He then drove to the nearby USAMRIID--again without the necessary paperwork.
Nobody objected to how he had moved his samples, Butler later testified. Indeed, at least one government scientist had congratulated him on his plan to hand carry them (see sidebar at left). And USAMRIID researcher Patricia Worsham would e-mail Butler that his Tanzanian study "was nothing short of miraculous."
Institutional harassment
By the time Butler returned from USAMRIID last fall, however, the IRB and auditors investigating his contracts were beginning to bear down. But the researcher wasn't returning phone and e-mail messages--it was "institutional harassment," Butler testified. And when two university auditors showed up at his laboratory on 10 October, Butler literally shut the door in their faces, one of them testified. Butler said he didn't know the duo and had never heard of their office. "They could have walked in from the street," he said. Butler's boss, meanwhile, was pressuring him to cooperate. "It is crystal clear to me that you will have to submit," internal medicine dean Donald Wesson wrote Butler on 9 October.
Again, Butler was upset at Pence, blaming her for the investigations and the IRB's letter. Pence, meanwhile, had fallen seriously ill in August 2002 and wouldn't return to campus until mid-2003. Still, on 15 October 2002, Butler vented his frustration in a blistering draft letter to a senior administrator that he penned in his journal, which was entered into evidence. (He later sent a revised version.) Titled "Smoking gun of Pence's retaliation," Butler alleges that Pence had "manipulated" the IRB by asking a friend of his to recuse himself from the panel. And he complains that the IRB's membership had created a situation in which "nonphysicians" were "rendering judgment on me."
On 6 November, the IRB delivered its heaviest blow. It told Butler that he could no longer work with human subjects. For the prolific researcher, the suspension was a disaster. It not only imperiled a follow-up to his Tanzanian study, but it also could cut off the bulk of his income and torpedo his chances of winning an FDA grant. On 9 January the IRB, still dissatisfied with Butler's lack of cooperation, sent him another e-mail confirming his suspension.
The mystery of set 5
Two days later, on a crisp Saturday morning, Butler went to his narrow, cluttered lab to perform some routine chores. That's when, Butler testified, he noticed something odd: A bright blue rack was missing its 30 tubes of Y. pestis cultures. "Set 5 missing!" Butler scrawled in his journal. Puzzled, he returned home for some family obligations, but he returned on Sunday to conduct a thorough search. "Can't explain other than intentional removal, suspect theft," he wrote.
On Monday morning, Butler reported the missing vials to chemist Michael Jones, the health center's biosafety officer at the time. After touring Butler's lab together, the two men decided that they would contact their superiors. But there was no "sense of urgency," Jones testified.
That would change the next day, after Butler broke the news to Donald Wesson, his department chair. "I was flabbergasted," Wesson testified about his 1 p.m. meeting with Butler. By 4 p.m., Wesson and Butler were huddled with senior health center officials. Butler opposed plans to inform the police and health authorities about the missing samples, several participants testified. But the group overruled him; this was a serious matter that the university could not handle on its own, the others decided. They asked Butler to call the local health department, while Wesson called the police.
As darkness fell that Tuesday, 14 January, the investigation moved into high gear. Lubbock police called in the FBI, which pulled out all the stops, including informing the White House of a possible bioterror threat. The press got wind of the story, and it became a leading item on CNN.
Through it all, Butler remained remarkably calm. The researcher, who once gave a talk titled "Pneumonic Plague: Delight of Terrorists," explained to agents how a skilled microbiologist could convert his cultures into a bioweapon in just 4 days. His description was "like he was reading ingredients off of a cereal box," one FBI agent testified.
FBI's smooth operator
Among the investigators hurrying to Lubbock that night was Dale Green, an agent in the FBI's Dallas office. An interrogator with training in psychology and a law degree--he is licensed to practice in three states--prosecutors described Green as an "expert questioner" able to draw out key information from witnesses and suspects. As Butler put it, "he had a very smooth manner to him."
At the trial, Green described himself as "trained to listen to what [people are] saying and how they are saying it. I'm looking for what I call red flags." His skill, he said, is to tell "when the truth is the truth is the truth." Green, however, couldn't tell jurors one truth: He is, in fact, a polygraph examiner--and the judge had excluded all mention of the machine from the trial.
When Green arrived at the police department just after 11 p.m. on Tuesday, investigators had already spent several hours questioning Butler. Initially, he was considered a victim and a witness, one FBI agent testified; the agents theorized that the missing vials might be the work of a disgruntled employee. But as information about Butler's IRB suspension and the financial investigations streamed in, they began to suspect that "the disgruntled employee might indeed be Butler," said FBI agent Miles Burden.
Around midnight, Green asked Butler to take a polygraph test. The researcher agreed, waiving his right to an attorney in the process. By the end of the exam, Green was convinced that Butler was lying. But he didn't confront the researcher with his doubts; instead, he sent him home around 2:15 a.m. "Neither of us were spring chickens, ... [and] I felt that the threat of the plague was very remote," Green testified.
Not that Butler got much sleep: Eleven agents accompanied him and then searched his modest, suburban ranch-style home for several hours. They also questioned his wife.
When FBI agents returned to the house the next morning around 10 a.m., they were surprised to find Butler heading for work. Instead, he agreed to accompany them to the Lubbock police station. There, in a small room, Butler again waived his right to a lawyer. Then, Green confronted Butler with the polygraph results. "I used an empathetic approach," Green testified, telling Butler that 'we all make mistakes.' " Maybe Butler had accidentally destroyed the samples, Green suggested. "I'm trying to give him a way to save face. ... Do I think he accidentally destroyed [the samples]? No. I'm giving him an out."
Butler soon confirmed Green's scenario by smiling, Green said. "This wasn't a 'That's a good joke' smile. ... This was 'I got caught with my hand in the cookie jar,' " he testified. Then, Green asked Butler to write a statement. In it, the researcher admitted to "accidentally" destroying the vials and making a "misjudgment" by reporting them missing.
At the trial, the two men differed sharply over how the admission was crafted and what it was intended to accomplish. Green said he wanted Butler to reassure the public that it was not in danger, and that he suggested only a few specific phrases. But Butler testified that Green essentially dictated large chunks of the document. The two men went "back and forth," Butler testified, until the handwritten note (see graphic above) became a "composite effort which fit what he wanted and what I felt comfortable with."
Among the things Green wanted was a sentence saying that investigators had made "no threats or promises" to obtain the statement, the researcher testified. But Green "tricked and deceived" him, Butler told the television news show 60 Minutes in August, just hours before the gag order was imposed. And he testified that the FBI agent had assured him that if he recalled destroying the vials, "we'll both walk out of here and nobody will be investigated." Green disputed that claim.
After the statement was finished, Butler was given a second polygraph, which agents claim confirmed his new account. Next, Butler answered more questions and then cooled his heels while the agents met in another room. At about 8 p.m.--barely 24 hours after the investigation started--Butler learned that he was under arrest.
The news sparked confusion and outrage among scientists and friends. In the 10 months between his arrest and the start of his trial, several scientific organizations and individuals rallied to Butler's defense. Some, including a quartet of Nobelists, loudly denounced how the government had treated him--including 6 days in jail, the yanking of his passport, and house arrest with an electronic anklet. "Tom Butler is not a criminal," says laureate and longtime Butler friend Peter Agre of Johns Hopkins. "He's a fine and honorable physician-scientist working for the good of mankind." He and more than 50 others have donated to Butler's defense fund.
Others predicted that Butler's case might discourage scientists "from embarking upon or continuing crucial bioterrorism-related scientific research," as two presidents of the U.S. National Academies put it in an August letter to Attorney General John Ashcroft. And the "seemingly selective prosecution raises extremely serious concerns," the New York Academy of Sciences' human rights committee added in September. Both groups pressured the government to drop the charges. But after several delays, Butler's trial finally began on 3 November.
On trial in Lubbock
It didn't have to happen. Prosecutors offered Butler a plea bargain that included 6 months in prison and a fine, if he agreed to plead guilty to several charges, according to media reports. But Butler, who friends say can be stubborn, balked at any deal involving jail time. He decided to roll the dice.
It was a big gamble. Texas Tech has a tradition of settling work-related disputes with employees, says Victoria Sutton, a bioterror law expert at the university who advised the prosecution. The dual contracts, which the FBI investigated thoroughly in the weeks after Butler's arrest, would not normally have gone to court, let alone been prosecuted as a federal crime. Now, the government added them as 54 new charges to Butler's original 15-count indictment. Internal Revenue Service agents also delved into what they claimed were huge, nonexistent expenses on Butler's 2001 tax return that saved him almost $40,000 in taxes. All told, Butler was facing 69 counts that carried a maximum of 469 years in jail and $17 million in fines.
Defense attorneys filed a barrage of unsuccessful motions to soften the blow. District Judge Cummings rejected their plea to suppress Butler's 15 January "admission." He also shot down requests to recuse himself because of his Texas Tech ties; to move the trial out of Lubbock, where the case was front-page news for months; and to separate the plague and fraud counts into separate trials. The defense team did win motions to suppress the polygraph results and to introduce heaps of e-mail evidence.
For 16 days, Butler would stroll into the George H. Mahon Federal Building--just off Buddy Holly Avenue--looking sober and composed. The courtroom was a high-ceilinged, wood-paneled affair that was often so cold that everyone bundled up. One reporter wore gloves, and a juror huddled under a blanket. Butler's wife always sat stoically behind her husband, often accompanied by her eldest son Thomas, a recent Stanford graduate in biology. The youngest, a 5-year-old son, wasn't allowed in the courtroom. Family friends took turns providing support.
From the trial's opening moments, prosecutors painted Butler as a man desperate to extricate himself from a hole he had dug with his own hands. Butler had reported the vials missing to distract attention from his IRB troubles and the financial investigations, they alleged. "The wagons were circled ... and he had a plan to lash out," prosecutor Robert Webster told the jury. "He wanted to throw a monkey wrench in the internal affairs of [the university]." But he didn't expect Texas Tech officials to contact the police. Instead of starting "a bonfire," Butler lit "a wildfire that [got] out of control," said Webster, who looked like a tall cousin of Mark Twain and could be graciously polite and devastatingly sarcastic in the same breath.
Prosecutors also heaped scorn on Butler's claim that he didn't understand the pathogen-transport rules. His journal entry about the "challenges" of importing samples showed that he knew enough to know better, they argued, as did his downloading of the rules from CDC's Web site. Butler even warned other researchers about the stringent requirements, one scientist testified.
Butler's hand transport was also reckless, they claimed. Plague is "in its own way as serious as the atomic bomb," argued prosecutor Michael Snipes, a master of hyperbole with the physique of a linebacker. One of the trial's most dramatic moments came when biosafety expert Barbara Johnson of Science Applications International Corp. easily crushed with one hand a plastic petri dish just like those that Butler had used to carry some plague cultures to USAMRIID. The dishes were a disaster waiting to happen, she warned.
The defense never disputed that Butler broke the transport laws but argued that he did so unknowingly and in good faith. Nobody was ever harmed by Butler's bacteria, defense attorneys repeatedly reminded the jury. And the scientist was only "doing what the government wanted him to do," said attorney Chuck Meadows, a seasoned fraud defender who favored flamboyant ties and spoke in a folksy Louisiana drawl. Three government agencies, including CDC, had encouraged Butler to go to Africa and then praised his achievements. "And now they charge him with a felony for not having a piece of paper from another branch of the CDC?" he asked. "Give me a break, folks!"
The defense had a much harder time explaining Butler's financial dealings, which prosecutor Webster pounded on for hours during his daylong cross-examination of the defendant. Butler claimed that his private payments from Pharmacia and Chiron, totaling more than $350,000 since 1996, were not for clinical work but were "companion consultancies" for his help in designing the studies, analyzing data, and writing papers. "They wanted me to be part of an inner circle of advisers," said Butler. Butler donated much of the money back to the university to fund his research, the defense suggested. But a Texas Tech auditor testified that the donations accounted for just $65,757 of the total.
Pharmacia and Chiron officials, meanwhile, disputed the consulting claim and noted that Butler was the only investigator involved in the trials who had twin contracts. Susan Stevens, a former contract negotiator for Chiron, even checked with her legal department when Butler asked for one split. "It set off some bells and whistles in my head," she said. But the lawyers told her it wasn't the company's problem.
Webster also questioned how a meticulous scientist could repeatedly botch his tax returns. Butler had claimed expenses for "professional and legal services" on his 2001 filing that exactly equaled the fees he earned from Pharmacia and Chiron. Similar deductions appeared on every filing going back to 1996. As a result, Butler's consulting business appeared to lose tens of thousands of dollars year after year. "Dr. Butler, did it ever occur to you to get out of the medical consulting business?" Webster mocked.
Prosecutors raised another odd incident to undermine Butler's credibility. On the morning of 14 January, just hours before the investigation began, a colleague in Butler's department diagnosed the researcher with possible chronic fatigue syndrome. The physician then signed a letter, drafted by Butler, to the department administrator, recommending that Butler be granted medical leave. Butler might seek care "out of town," it said. Butler never mentioned the diagnosis to the FBI, and his defense didn't bring it up at the trial.
That's because the letter was "an incredibly bogus, ridiculous diagnosis," prosecutor Snipes snapped in a withering final argument. He portrayed Butler as an arrogant liar who refused to take responsibility for his actions. Butler had everything, Snipes said: a successful career, international prestige, a nice family. "He blew it all," Snipes said. "Because he's greedy, he had to have all the money, and he simply wouldn't listen to anybody."
The defense team fired back. Why would Butler destroy his own career by bringing the investigators down on his head? And although he may not have had the proper paperwork, the veteran microbe hunter knew what he was doing when he transported his samples. "The world's leading expert is gonna put you in danger? He's gonna put himself in danger?" thundered Floyd Holder, the bald, baritone 69-year-old local legal legend who led Butler's defense. "Tom did what it took, and he did it as best as he could." And now, he said, the government was punishing him for it.
A puzzling split verdict
For the nine men and three women on the jury, sorting through such arguments was heavy going. At the beginning of the trial, prosecutor Webster had promised them that they would "become amateur biologists and chemists" by the end of the case. Defense attorneys added that they'd have to become accountants, too. And after hearing from more than 40 witnesses, it seemed they had mastered the material. After deliberating for 3 hours, then taking 5 days off for Thanksgiving, they needed just 6 hours more to deliver their verdicts.
Butler looked straight ahead as District Judge Cummings announced the string of convictions. As they mounted, he closed his eyes, clenched his jaw, and became flushed, apparently near tears. His wife Elisabeth and son Thomas sat sober and silent behind him.
In delivering its judgment (see sidebar), the jury steered a middle course between the Jekyll-and-Hyde portraits of Butler painted by the dueling attorneys. Most notably, it blew a gaping hole through the heart of the prosecution's original case by acquitting Butler of the most sensational charge: lying to the FBI about the fate of his samples. And it backed Butler's claim that he acted in good faith by acquitting him of lying to his university about possessing plague bacteria, of lying on his tax returns, and of 15 of the 18 charges related to transporting his samples.
But the jurors clearly didn't buy Butler's explanation of the split contracts, convicting him on 44 of the 54 fraud counts. And it decided that he should have known he needed an export permit when he shipped plague cultures back to Tanzania in a FedEx carton marked "laboratory materials." The three convictions related to that mistake could prove particularly costly, prosecutors say: The export violation alone carries a maximum sentence of 10 years. (Ironically, a Department of Commerce biosecurity expert testified that Butler probably would have gotten the permit, had he applied.)
The fraud verdicts have puzzled attorneys on both sides, however. That's because, in several instances, the jury convicted Butler of accepting one payment associated with a single contract but not a similar payment made a few weeks later. Similarly, it found him innocent of receiving certain payments but guilty of the attached mail fraud charge. "It's hard for us to understand," Meadows says. And Texas Tech law professor and former prosecutor Larry Cunningham says that the verdicts bear the hallmarks of a divided jury that split the difference to avoid a lengthy deliberation. On the other hand, he says that the contradictions are largely academic under criminal law: "Juries aren't required to be consistent."
No sentencing date has been set. Butler remains at home. His lawyers have already filed a pro forma request for a retrial. If it is rejected, as expected, they will appeal on grounds that may include Cummings's denial of a change of venue and his refusal to recuse himself. Texas Tech, meanwhile, is moving to fire Butler, who had been on paid leave.
Butler's supporters are delighted that he was acquitted of most of the charges that started the drama. Some are confident that ultimately he will be cleared of the financial charges, too. Microbiologist William Greenough, a former teacher and prominent ally at Johns Hopkins, says that he suspects Butler used the money from the split contracts for work overseas that the university was unwilling to fund.
Beyond Butler's close allies, however, reaction has been muted. Many have rejected the image of Butler as victim of a Justice Department run amok. Butler's case just isn't that simple, they say; it raises too many questions. The 42,000-member American Society for Microbiology, for instance, never took a stand on the case, and some members had trouble making sense of it, says Janet Shoemaker, the group's policy director. But the government has sent a clear signal that scientists must follow the rules, says Texas Tech's Sutton.
Still, even after the exhaustive investigation and expensive prosecution, many remain perplexed. The weeks of testimony never solved the case's biggest mystery: What really happened to the plague bacteria that Butler says went missing that Saturday morning? The jury signaled that it believed Butler: He was manipulated by the FBI and has no idea where the plague cultures are. That brings the case full circle. Thirty vials of deadly microbes are still unaccounted for--and nobody is looking for them.
If, say, one of Butler's flights had crashed when he was transporting the plague, would that have "released" the plague upon the world?
Also---if a Tanzanian had the plague, could the person come into the US (blending in with the millions of illegals) and be a human bio-bomb?
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