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Archive for August 1st, 2009

* LMW: The end of the NAS trail, I suspect, will be that the FBI’s anthrax science was a mess that couldn’t convict Bruce Ivins or anyone else

Posted by DXer on August 1, 2009

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LMW report on the second day of the NAS review …

The day began with a statement from Congressman Rush Holt that the NAS mission, although important, was too narrowly framed to answer all of the doubts and questions surrounding the FBI’s investigation of the anthrax case.

see related post … * Congressman Rush Holt meets with NAS panel, says their work is important but their mandate is too narrow; calls for passage of Anthrax Investigation Commission legislation he introduced in March 09

The Congressman’s point was proven many times during the course of the subsequent testimony. The FBI has clearly stacked the deck in the NAS study, seeking to control the result as they have in every other aspect of the anthrax case. A search for the actual truth seems to be far down on the FBI’s list of priorities.

But when the other witnesses testified, all of them FBI consultants, a strange thing happened.

Hints of the truth came out.

The witnesses were

  • Dr. Bruce Budowle, Executive Director, Center for Human Identification, Department of Forensic and Investigative Genetics, University of North Texas Health Science Center; previously the FBI’s chief forensic scientist in DC
  • Dr. Claire Fraser-Liggett, Director, Institute of Genome Sciences and Professor of Medicine, University of Maryland School of Medicine
  • Dr. Jennifer Smith, BIOFOR Consulting

Let’s start with the conclusion of Dr. Fraser-Liggett (which she has stated before) that …

“in no way do the genomic investigations lead to the perpetrator.”

So, in the opinion of one of the chief scientists on whom the FBI relied, the science doesn’t lead to Dr. Bruce Ivins.

  • Nor do any witnesses lead to Dr. Ivins, since there are none.
  • Nor does any physical evidence lead to Dr. Ivins, since there is none.

So where is the FBI’s case against Ivins? The simple fact is that there is no case. That’s why they charged a dead man.

  • No need to present evidence in court, under oath.
  • No need to come forward with exculpatory evidence (see below).
  • No need to deal with a pesky defense attorney.

Here are some other things we learned at yesterday’s NAS hearing.

A significant scientific detail: all of DNA analyses were made from a single colony picked from a plate. The caveat was clear and stated: we may have missed mutations from other colonies in the same batch.

But those mutations, the famous “4 morphs,” are the foundation of the FBI’s assertion that the attack anthrax came from flask RMR-1029 and hence from Dr. Ivins (ignoring for the moment the hundred other scientists who had access to material from or derived from that same flask). And now it seems that maybe those “4 morphs” weren’t the only mutations, or even the most important mutations. Maybe a more complete scientific evaluation would have led in a totally different direction.

A question raised by Dr. Smith: Was the validation of test methods done before the test was applied to the evidence? If not, she said, “there is a great likelihood of false positives and false negatives.”

It’s my opinion that Dr. Smith would not have raised the issue if it did not point to a huge hole in the scientific analysis used by the FBI. Unproven techniques may have been used to provide a very shaky foundation upon which huge conclusions were drawn. I’ll bet that’s what NAS will find.

Issues were also raised about

  • the collection of evidence,
  • the movement of evidence between labs,
  • the possible absence of a clear and provable chain of custody,
  • the possibility of contamination,
  • and the fascinating question: did anything change as data moved?

What emerged from comments and questions like these was the picture of a supposed scientific process driven by FBI investigators, not scientists, under conditions of urgency and chaos.

An example: Dr. Budowle described a series of tests he thought were important to verify some crucial conclusions regarding the “4 morphs” which formed the crux of the FBI’s case; but, he added, the tests were not done.

  • Question: Why were the tests not done. Answer: “You’ll have to ask the FBI.”
  • Question: The FBI made the decision not to do those tests? Answer: “Yes.”
  • Question: Did the FBI impact the scientific directions taken? Answer: “Yes.”

Dr. Smith also asked herself, during her presentation, in a way that made the answer seem clear, “did intel needs override the protocols of science?” In other words, was the answer based on good science, validated science, replicable science, proper handling of samples, proper chain of custody? I would not be surprised if the NAS finds that the FBI’s supposed scientific answers cannot stand up to any of those tests.

Based on what seems to be emerging, any defense attorney would rip the FBI’s scientific “evidence” to shreds.

Dr. Budowle raised the fascinating question of “Brady” evidence. Dr. Budowle said if he was a defense attorney, he would look for the Brady material.

NOTE: Brady material is exculpatory evidence that favors the defense case or weakens the prosecution case. Brady v. United States, 397 U.S. 742 (1970) was the seminal Supreme Court case which determined that if the government has exculpatory evidence it must turn it over to the defense in a timely manner.

This committee, Dr. Budowle said, “is limited in not being allowed to look at the probative nature of the information. But there might be such Brady material that would be interesting for the committee to see.” As I listened to Dr. Budowle, it seemed to me he was certain that such Brady material existed, and that it was important for the NAS to find it.

Had there been a defendant to bring to trial, I suspect Dr. Budowle would have been a witness for the defense.

Even with all the limitations imposed by the FBI, it seems to me there is reason to be hopeful about the NAS process. The perceptive and probing questions asked by NAS committee members yesterday suggest that devastating weaknesses in the FBI’s case will emerge over the next 18 months as the study committee goes diligently about its business. For example …

  • Question: “where else should we look for data that we might not know about now?”
  • Answer: “great question.”

I think and hope the NAS scientists will want to go to places the FBI did not want them to see, and that their impressive credentials and the weight of people like Congressman Holt watching over the process will ultimately force the FBI to relent, because not to relent will make the FBI look more foolish than even the truth about their failed anthrax investigation.

I believe the NAS scientists will proceed in an open and rigorous manner to reach their conclusions, and that these conclusions will be the truth as they see it

The end of the NAS trail, I suspect, will be that the FBI’s anthrax science was a mess that couldn’t convict Bruce Ivins or anyone else.

Dr. Bruce Ivins

Dr. Bruce Ivins

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