Ivins Attorney: Government's Case Is 'Speculation'

The government is getting ready to officially close its case against Bruce Ivins, the man officials say killed five people with deadly anthrax. But actual closure may be a long way off. In an exclusive interview with NPR, Ivins' attorney, Paul Kemp, said the FBI got the wrong man.

Kemp said there was nothing more frustrating than watching the government unveil its case against his client at a news conference. All he wanted to do was object.

"It is nothing but speculation, the government's case," he said.

Kemp represented Ivins for the past year until Ivins committed suicide last week. Now Kemp will never get a chance to test the government's evidence in court and, he believes, clear Ivins' name.

"We don't convict people on the idea that they may demonstrate eccentric behavior, or that they had the opportunity to commit a crime or had the knowledge to commit a crime, and that's what the government's saying," Kemp said.

The case against Ivins largely rests on new scientific techniques that investigators believe link Ivins to the anthrax used in the attacks. Officials say genetic analysis of the anthrax spores shows they match a flask in Ivins' possession. Officials called it the "murder weapon."

But Kemp said more than a hundred people had access to the flask and, more important, actually used that exact strain of anthrax. He says the anthrax in the flask was sent to two other labs and was used in dozens of experiments by other scientists. He says mostly, it just doesn't make sense, because he says Ivins never tried to hide that it was the same anthrax.

"If you're the anthrax killer and you're this evil genius that knows all about anthrax, why would you leave it in precisely the same genetic state one year later, one month later, seven years later, as it was in at the time of the killings?" he asked.

Kemp says what troubles him most is that the government has been unable to place Ivins in New Jersey at the time the deadly letters were sent from a mailbox there. Even if he drove, even if he paid for every single thing in cash, "nobody saw him in New Jersey, they don't have any restaurant receipts or gas receipts or surveillance tapes or witnesses. Where's a witness that can put him in New Jersey or put him on the way to New Jersey or put him on the way back from New Jersey, or having in his car a New Jersey Turnpike toll receipt?"

On the flip side, of course, there isn't any evidence right now that Ivins wasn't in New Jersey. But Kemp says that's because it has been seven years, and the first thing they would have done if Ivins had been charged was go back and find a way to prove he was at home, which he believes they could have easily done.

In the news conference this week, Washington, D.C.'s U.S. Attorney Jeff Taylor sounded sure that he had gathered enough evidence to win over a jury.

"Circumstantial evidence? Sure, some of it is. But it's compelling evidence, and our view is we are confident it would have helped us prove this case against Dr. Ivins beyond a reasonable doubt," Taylor said.

But Kemp isn't the only one with doubts about that statement.

"If I were the government, I would be saying that as well," said Matt Orwig, who was a federal prosecutor for 20 years — and a U.S. attorney — in Dallas.

"I think, the truth be told, this would have been a very tough case, and I think it's fair to say that the government should be very satisfied that they don't have to play that out and see how good of a case it is," Orwig said.

Kemp said Ivins was struggling with his mental health but that he always sought treatment. He says Ivins did have an unusual interest in a sorority — but that was more than 20 years ago, after a woman rejected him. And he never tried to hide any of that from investigators, mislead them with a bad anthrax sample.

Ivins worked long hours the months before the letters were mailed, but Kemp says he could have shown that Ivins was, like he told investigators, having a particularly hard time at home during those exact months.

The Justice Department says without a doubt it has found the anthrax killer.

"Based on what?" Kemp asked. "Can they point to any evidence that shows he actually did anything that constitutes these anthrax attacks, was present at the place where these letters were mailed, ever admitted it to any single person or to himself in a journal or diary entry, or discussed it with another person?"

If Ivins had, it certainly would have left a lot less doubt than Kemp and Ivins' friends have now.

Ivins' Lawyer Rebuts DOJ Anthrax Allegations

Bruce Ivins, a government biodefense researcher, is seen in a 2003 photo. i i

Bruce Ivins, a government biodefense researcher, is seen in a 2003 photo. The scientist, who was a suspect in the 2001 anthrax attacks, committed suicide late last month. Corbis hide caption

itoggle caption Corbis
Bruce Ivins, a government biodefense researcher, is seen in a 2003 photo.

Bruce Ivins, a government biodefense researcher, is seen in a 2003 photo. The scientist, who was a suspect in the 2001 anthrax attacks, committed suicide late last month.

Corbis

Transcript: NPR Interview With Attorney Paul Kemp

  

In his first sit-down interview about anthrax suspect Bruce E. Ivins, attorney Paul Kemp explains why he thinks the Justice Department's case against the late Army microbiologist is weak.

  

READ THE TRANSCRIPT of Laura Sullivan's interview with Kemp.

Transcript: DOJ News Conference On Ivins

  

READ A TRANSCRIPT of the Aug. 6, 2008, news conference by U.S. Attorney Jeffrey Taylor, FBI Assistant Director Joseph Persichini and other officials to discuss the government's investigation of Bruce Ivins, an Army microbiologist suspected in the 2001 anthrax-letter attacks.

A letter addressed to Sen. Patrick Leahy in 2001 contained anthrax. i i

A letter addressed to Sen. Patrick Leahy in 2001 contained anthrax. A similar letter was sent to Tom Daschle, who was the Senate majority leader. Getty Images hide caption

itoggle caption Getty Images
A letter addressed to Sen. Patrick Leahy in 2001 contained anthrax.

A letter addressed to Sen. Patrick Leahy in 2001 contained anthrax. A similar letter was sent to Tom Daschle, who was the Senate majority leader.

Getty Images
A metal fence surrounds the Army Medical Research Institute of Infectious Diseases i i

A metal fence surrounds the Army Medical Research Institute of Infectious Diseases in Frederick, Md., where Ivins worked. Mark Wilson/Getty Images hide caption

itoggle caption Mark Wilson/Getty Images
A metal fence surrounds the Army Medical Research Institute of Infectious Diseases

A metal fence surrounds the Army Medical Research Institute of Infectious Diseases in Frederick, Md., where Ivins worked.

Mark Wilson/Getty Images

The Department of Justice says it is confident that Army scientist Bruce Ivins sent the letters containing powdered anthrax that killed five people in 2001. But because Ivins committed suicide, his guilt or innocence will never be determined in court.

In disclosing its evidence against Ivins, the government links the anthrax used in the attacks to a sample Ivins created. But Ivins' lawyer, Paul Kemp, says "dozens ... if not hundreds" of scientists, contractors and others used that same anthrax.

What follows is a detailed look at the main points of evidence drawn from court documents, public statements by senior Justice Department officials, and an interview with Kemp.

The Murder Weapon

ALLEGATION: Investigators say the spores used in the attacks genetically match a flask of spores that Bruce Ivins created and had custody of. They say they gathered more than 1,000 anthrax samples from various laboratories and that the spores from the attack only matched eight of those samples. Of those, Ivins' sample was the "parent" from which the others were derived. "No one received material from that flask without going through Dr. Ivins," said Jeff Taylor, U.S. attorney for Washington, D.C. "We thoroughly investigated every other person who could have had access to the flask and we were able to rule out all but Dr. Ivins." The flask, Taylor later said, was effectively "the murder weapon."

RESPONSE: "In this country we prosecute people, not beakers," says Paul Kemp who was Ivins' attorney. Kemp says the University of New Mexico and a Battelle lab in Ohio had received portions of the anthrax in the flask. "There are dozens ... if not hundreds, of scientists, contractors, students, professors, who used that same anthrax — the very anthrax that would have the same genetic component" as the flask Ivins had, Kemp says. He also questions why, if Ivins was guilty, he wouldn't have covered his tracks better, by altering the sample in the flask.

Attempts To Deceive Investigators

ALLEGATION: Investigators say that in 2002 Ivins submitted two samples of anthrax from the flask in question and that neither of those genetically matched the spores used in the attacks. Agents later seized the flask and found the anthrax in it did in fact match the spores used in the attacks. Taylor said Ivins did this "presumably to mislead investigators."

RESPONSE: Ivins' lawyer says there was confusion about what kind of sample the FBI had wanted — a "pure" sample or one that captured the mix of spores in the flask. Kemp says Ivins submitted a pure sample at first.

The Envelopes Used In The Attacks

ALLEGATION: Investigators say the envelopes used in the attacks had certain printing defects on them. They found envelopes with identical defects had been distributed to post offices supplied by the Dulles Stamp Distribution Office in Dulles, Va. According to an affidavit in the case filed by investigators, "It is reasonable to conclude that the federal eagle envelopes utilized in the attacks were purchased from a post office in Maryland or Virginia."

RESPONSE: These are "post offices that service the entire width of the state of Maryland and then the biggest post office in the state of Virginia," Kemp says. He says there is no evidence that Ivins ever purchased any of those envelopes.

Late Work Hours

ALLEGATION: Ivins worked long hours alone at night in the lab in the days leading up to the days investigators believed the letters containing the spores were mailed. In one case, records show he worked three consecutive nights for over two hours each time. "Dr. Ivins had not spent this many 'off hours' in the lab at any time before or after this period," Taylor says. Investigators say Ivins never gave a satisfactory explanation for his hours, except to say that he was escaping from his life at home. (A chart provided in court documents shows Ivins worked perhaps 10 night hours total in November and December — at about the level he had during the early parts of the year. In September and October, Ivins worked over 45 night hours combined.)

RESPONSE: Kemp says the hours were "characteristic of [Ivins'] long-term work patterns" and that Ivins continued to work long hours through the end of 2001.

The Mailing Of The Letters

ALLEGATION: Investigators believe the letters were sent from a mailbox in Princeton, N.J., where they found anthrax traces. They point out in court documents that Ivins had an obsession with a sorority that had an office 60 feet away from the mailbox. They say Ivins also had a history of mailing things with false return addresses. In one e-mail, Ivins writes, "I got your e-mail making me wonder if you thought that I was trying to get something from you by sending you care packages, Christmas or birthday gifts, etc. That had me rather worried, so I decided to send you the things, but from different places and with different names."

RESPONSE: "Where is a witness that can put him in New Jersey?" Kemp asks. Ivins' lawyer says his client never hid his interest in the sorority from investigators. Kemp adds that the office near the mailbox is not a sorority house where students actually live.

Motive

ALLEGATION: Investigators point out that Ivins was working to fix problems with the production of an anthrax vaccine that was in danger of being halted. After the anthrax attacks, the Food and Drug Administration reapproved the vaccine for human use. Court documents say Ivins told a co-worker he had "incredible paranoid, delusional thoughts at times" and worried about controlling his behavior. Ivins later wrote poems about feeling there were two people inside him.

RESPONSE: "There is no motive that has been suggested to me that makes any sense," Kemp says. He says Ivins had a history of mental health problems but had repeatedly gotten therapy.

Targets Of The Letters

ALLEGATION: Investigators say Ivins had a history of writing letters to both politicians and the media, the recipients of the letters in the actual attacks. According to court documents, agents found 68 unmailed letters at his house. Investigators also say Ivins opposed abortion and that Sens. Tom Daschle and Patrick Leahy, who were targeted with anthrax-laced letters, had been criticized for their stands on abortion rights.

RESPONSE: "It is frightening to me, as a citizen, and certainly as a defense attorney, for people to characterize citizens who have trouble or questions or disputes with members of Congress, as having a dark side," Kemp says. "That's the only thing I can comment to that. That does not prove a thing."

The Strength Of The Case

ALLEGATION: Investigators say they believe Ivins sent the letters that killed five people and injured 17 others. "Based upon the totality of the evidence we had gathered against him," Taylor said, "we are confident that Dr. Ivins was the only person responsible for these attacks." Taylor said many cases are proved using circumstantial evidence. "Circumstantial evidence? Sure, some of it is. But it's compelling evidence and our view is we are confident it would have helped us prove this case against Dr. Ivins beyond a reasonable doubt."

RESPONSE: "It is nothing but speculation, the government's case," Kemp says. "We don't convict people on the idea that they demonstrate eccentric behavior, or that they had the opportunity to commit a crime, or the knowledge to commit a crime, and that's what the government's saying."

With Reporting By Laura Sullivan

Anthrax Case Hinges On Circumstantial Evidence

Attorneys on both sides of the FBI's anthrax case against microbiologist Bruce Ivins acknowledge much of the evidence is circumstantial. Paul Kemp, Ivins' attorney, has said that would not have been enough to convict his client in court. The government argues otherwise.

Since Ivins committed suicide late last month, there may never be a clear answer. However, the fact that a case depends on circumstantial evidence does not mean that a crime cannot be proved.

"Circumstantial evidence is just evidence of an indirect nature," says Mary Cheh, a law professor at George Washington University. It allows you to infer conclusions from the available facts, she says.

For example, imagine that a man and a woman check into a hotel and emerge the next morning, night after night. "Maybe I don't have direct evidence that they're having an affair," Cheh says, "but I infer rather strongly from those facts."

In fact, the couple could be meeting to plan a church picnic. In an adultery trial, a defense lawyer might make that argument. The jury would have to decide whether the argument is plausible.

The law says even murder can be proved without a body. In that case, Cheh says, "you have to infer that there's been a death and that it's been murder."

Tom DiBiagio, Baltimore's former U.S. attorney, says that "probably 90 percent of the cases that are tried every day" depend at least in part on circumstantial evidence.

Some circumstantial evidence can be incredibly damning, while other evidence can be less so. The system relies on jurors to evaluate whether the entire body of evidence proves guilt beyond a reasonable doubt.

That's one reason many people are dissatisfied by the conclusion of the anthrax mystery: Ivins committed suicide and the government has moved to close the case, so a jury will never decide whether the government had enough evidence for a conviction.

"The jury here is the public at large," says Donald Stern, a former U.S. attorney in Boston. The public "can draw its own conclusions based upon the evidence the government has presented and the arguments and contrary positions that his defense lawyer has taken," Stern says.

The Ivins case is even more ambiguous because the FBI had not completely finished its investigation when he committed suicide.

On Thursday, a judge approved search warrants for two public library computers that FBI agents watched Ivins use days before he killed himself.

An agent said the computers could contain suicide letters, photographs or other information relevant to the investigation.

When Jeff Taylor, U.S. attorney for Washington, D.C., described the governments evidence against Ivins at a press conference this week, he made it sound as though the FBI had all that it needed.

"Based upon the totality of the evidence we had gathered against him," Taylor said, "we are confident that Dr. Ivins was the only person responsible for these attacks."

While that may be so, the government wanted to be even more confident. Officials were talking with other people who knew Ivins, and they had arranged a meeting with his lawyer in which they were going to urge Ivins to confess.

Had Ivins done that, the circumstantial evidence would have been irrelevant. Instead, he maintained his innocence and overdosed on painkillers, prematurely ending the anthrax investigation seven years after it began.

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