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 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.