The Anthrax Case: Congress Must Demand an Independent Inquiry

Commentary

The Anthrax Case: Congress Must Demand an Independent Inquiry

September 15, 2008 08:01:00 am

JURIST Guest Columnist David Harris of the University of Pittsburgh School of Law says that in light of questions about the FBI's public identification of the late Dr. Bruce Ivins as “the only person responsible” for the 2001 anthrax attacks, Congress should demand an independent investigation to test the government’s evidence of its accusatory claim….

With Dr. Bruce Ivins named as “the only person responsible” for the anthrax attacks, the FBI says it has solved the case. But not everyone agrees, and among the doubters are members of Congress poised to question FBI Director Robert Mueller at hearings this week. While some — maybe even most — of the evidence does point to Ivins, the FBI should not publicly pin guilt on him. Instead, the Bureau should send all of its information to a neutral, detached investigator to conduct of a full, unbiased inquiry. In this country, we determine guilt by testing the evidence, not press conferences that pronounce the case solved.

With Ivins’ death, no trial will ever take place. And this represents a real loss. The trial of every criminal case serves as an opportunity to test the evidence, whether direct or circumstantial. The government prosecutors present their evidence to the jury in the best possible light; the defense then gets to challenge the evidence. This is done through cross-examination, during which defense lawyers question witnesses put forth and already questioned by the prosecutor. If the prosecutor’s questions serve to put forth the strongest view of the government’s evidence, cross-examination’s purpose is to show the jury where the weaknesses are — the biases of the witness, the failure of the witness to remember, or simply other interpretations of the evidence. The defense may also, if it wishes, put forth its own evidence, and its own witness, to challenge the prosecution’s case. This testing of the evidence through cross-examination and the presentation of opposing versions of the facts lies at the heart of the way we evaluate the facts in determining whether to find a person guilty of a crime.

As the FBI itself finally conceded after years of denial, its investigation went in the wrong direction for years, blaming another government scientist, Steven Hatfill. The Bureau and the Department of Justice were eventually forced to concede that they’d got it wrong, paying Hatfill millions of dollars in damages for the utter destruction of his professional and personal life. Thus when members of Congress and the public react skeptically to the FBI’s pronouncement that it has found the killer, their skepticism is entirely reasonable: resolution of the case without a trial is just a little too convenient for the FBI, which would like to emerge from the case without any more problems.

In our country, we do not accept accusations of criminal wrongdoing without examining them critically. Without the crucible of a trial in which the government and the defense put the evidence to the test in front of a jury, we simply cannot be sure that the government could ultimately prove the case beyond a reasonable doubt. Statements by Paul Kemp, Dr. Ivins’ attorney, give a strong sense that the government’s evidence would have faced a strong challenge at a trial. For example, of the flask of anthrax spores that the government presents as the murder weapon under Ivins’ sole control, Kemp says that more than a hundred other people also had access to the flask, and the same strain of anthrax was widely used in experiments by many other scientists. And reputable scientists around the country have uniformly reserved judgment about the Bureau’s efforts to link the anthrax recovered in the attacks to the type in Ivins’ lab, since no researcher unconnected with the FBI has had access to the Bureau’s data or methods. In science as in law, no opportunity to test means no way to know.

None of this, of course, proves that Dr. Ivins did not send anthrax through the mail in the fall of 2001. But at the very least, it does counsel caution. Sure, the evidence may seem to point to Dr. Ivins more than to anyone else. But we need to remember that any real conclusion requires more.

That’s why the only real solution — one that the FBI should support — is for a neutral party to take a close look at the evidence, and report to the Congress and the country about the strength of the case. Simple announcements of findings by the FBI — “trust us, we got the right guy this time” — just are not enough.

David A. Harris is Professor of Law at the University of Pittsburgh, where he teaches criminal law and procedure, evidence, and homeland security.
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Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.