August 10, 2008
By Justin M. Palk
Legal experts said the FBI had a strong case against Fort Detrick scientist Bruce Ivins, the government's prime suspect in the 2001 anthrax mailings, but not necessarily strong enough to secure a conviction.
The case is built on circumstantial evidence, which is admissible in court, and can be enough to secure a conviction, but this particular case would be a difficult one for prosecutors to make, said Scott Rolle, former Frederick County State's Attorney.
Michael Greenberger, director of the University of Maryland Center for Health and Homeland Security, agreed prosecutors would have had a difficult time in court.
"As a former trial lawyer and a former official in the Department of Justice, I do not think as (the case) presently stands it would have convinced a jury beyond a reasonable doubt," he said.
Wednesday, the Department of Justice officials released copies of search warrants and affidavits they said backed up their argument that Ivins, who worked with anthrax during his three decades at the U.S. Army Medical Research Institute of Infectious Diseases, was the man who sent the anthrax-laden letters that killed five and sickened 17 others in 2001.
Ivins' attorney, Paul Kemp, has maintained his client's innocence since he was identified as a suspect in media reports a week ago.
In the documents, the FBI said Ivins:
• had control of a flask of anthrax that shared characteristics with the bacteria used in the letters.
• could not adequately explain why he was doing lab work late at night and on weekends in the days before the letters were mailed.
• was suffering from mental health problems in the months preceding the mailings, among other reasons.
The officials admit they have no hard evidence that Ivins wrote or addressed the letters, or that he traveled to Princeton, N.J., where the letters were mailed.
Both Rolle and Greenberger pointed to the genetic evidence linking the anthrax used in the letters to a flask controlled by Ivins as simultaneously a strong and a weak point for prosecutors.
The FBI has had a problem with scientific evidence in recent years, Greenberger said, even to the point of having to withdraw fingerprint evidence from a terrorism case in 2004 after concluding that its expert's testimony was wrong in tying fingerprints in the case to the defendant.
Fingerprint analysis is an area that's supposed to be part of the FBI's core competency, he said. An opposing defense expert could likely cast doubt on the FBI's genetic evidence in this case.
"(As a prosecutor) I would ... be thoroughly cross-examining my expert witness," Greenberger said. "There would certainly be (a defense) expert testifying it was not conclusive."
Greenberger also said he'd want to know more about how the FBI eliminated other suspects who had access to the anthrax from the investigation.
A defense attorney could definitely exploit the number of other people who had access to the anthrax, investigators' failure to find anthrax spores in Ivins' house, office and cars and the lack of evidence placing Ivins in New Jersey, Rolle said.
Overall, the case was strong enough to establish probable cause and secure an indictment before the grand jury, but not necessarily good enough to win in court, he said.
Conceivably, prosecutors could get the indictment, then try to backfill the rest of the evidence they need before the trial, but that's a risky strategy, Rolle said.
"As a prosecutor," he said, "I preferred that before we went to a grand jury ... we already had the evidence we needed to prove the case beyond a reasonable doubt."