A federal appeals court yesterday upheld the conviction and prison sentence of former Texas Tech professor Thomas Butler for illegally shipping plague samples and for defrauding the university in unrelated consulting for drug companies. Yesterday, a National Academy of Sciences (NAS) committee also met to discuss how to help him find a suitable job upon his release, scheduled for January.
In a unanimous decision, three judges from the US Court of Appeals for the Fifth Circuit in New Orleans—temporarily operating out of Houston—rejected Butler's claim that six errors in his original trial prejudiced the jury against him. In their unsigned opinion, the judges concluded "that the district court did not commit reversible error." Butler has already served over 18 months of the 24-month sentence he received in March 2004.
Not surprisingly, scientists who have supported Butler decried the decision. "I'm bitterly disappointed but still confident in the American judicial system. This will go to the next level," said Peter Agre, a 2003 Nobel laureate in chemistry and a former student of Butler's. Stanley Falkow at Stanford University in California echoed that the decision was "one of the saddest things I have seen in my scientific career."
Butler has been stripped of his medical license, and his legal fees far exceed $1 million. Several of his supporters said they fear he will find it extremely difficult to land a job that uses his medical and research skills. Consequently, yesterday, the Human Rights Committee of the NAS met to discuss how to help him find work upon his release. Butler is only the second U.S. scientist the committee – created to help foreign scientists persecuted by their governments -- has ever assisted.
Although the NAS does not allow members to talk about its deliberations, Peter Agre, the committee's chair, told
Butler made worldwide news in January 2003 when he reported 30 vials of plague samples missing, causing 60 FBI agents to descend on his lab within hours. According to colleagues, Butler collected the samples from plague-stricken Tanzanians to demonstrate that two readily available drugs can cure the disease.
The Justice Department charged him with lying to investigators about having lost the vials, committing tax fraud, and illegally shipping the plague samples back to Tanzania. The government also accused him of defrauding Texas Tech by giving it only half the money the Food and Drug Administration reimbursed him for plague expenses, and only half the amount two drug companies paid him for conducting clinical trials of unrelated new drugs. A jury acquitted him of most serious charges but found him guilty of illegal shipping and defrauding Tech on the drug company payments.
One prominent issue in Butler's appeal was his lawyers' contention that the original district trial judge should have allowed the plague charges to be tried separately from the fraud charges, because they were unrelated, and the jury's knowledge of one might prejudice its decision about the other. Government lawyers argued that the two charges were parts of a unified scheme to defraud Texas Tech and divert attention away from that crime by pretending to lose the vials. The appeals court ruled that the counts were related and that Butler was not harmed by trying them together. "I think it's certainly clear that the government was in the right in this prosecution on all fronts," Susan Calger, the assistant U.S. attorney who argued the government's side, told
Jonathan Turley, Butler's appeal attorney, strongly disagreed. "The opinion has a number of glaring and fundamental errors that will have to be addressed on appeal," he told
Turley explained Butler can appeal three more times: to the three judges, to all Fifth Circuit judges, and to the Supreme Court. "We are committed to keep fighting for Doctor Butler as long so long as it takes to seek final vindication," he said.
Butler, 64, is scheduled to be released nearly four months early, on January 2, according to the Federal Bureau of Prisons' inmate locator web site. In November, he will be moved to a halfway house in his home town of Lubbock, Texas, according to his wife Elisabeth.