Butler's Last Stand

PLAGUED BY PLAGUE

Butler's troubles began in January 2003 when he announced that 30 vials of plague samples were missing from his campus laboratory. Shortly afterwards he signed a statement – he says under FBI duress – admitting he had previously destroyed them, but he quickly recanted it. The jury found him not guilty of lying to the FBI, smuggling plague from Tanzania, and evading income taxes, but guilty of improperly shipping plague back to Tanzania in a FedEx carton.

The fraud convictions result from 54 charges the Justice Department filed eight months after the plague incident. For years, Butler had a special "deal" in which his contracts with drug companies like Hoffman-LaRoche, Chiron, and Phar-macia paid him 50% and the university 50% of his grants for testing drugs on patients at the university's medical center.

Butler's professional career is on the line. The university forced him to resign and to give up his right to fight dismissal charges before it would accept his restitution payment. Robin Knight, director of the program in academic freedom and tenure at the American Association of University Professors, called Butler's settlement decision a "very tough choice. I'll cross my fingers and hope that they made the right choice," he says.

Because Texas law requires that the licenses of convicted felon physicians be automatically revoked when they enter prison, Butler chose to surrender his license voluntarily last month rather than risk having it revoked, Holder said. Should his conviction someday be overturned on appeal, he could petition the state's medical board to reinstate his license.

Butler's lawyers have reason to believe that their resignation-restitution tradeoff might pay off. "Judge [Sam] Cummings does tend to reward people who voluntarily go out and make restitution," Holder says, noting that Butler has now paid back at least $600,000.

Butler will likely be sentenced to 46 to 63 months in prison, according to Herb Hoelter, a national expert on the federal sentencing guidelines and part of the National Center on Institutions and Alternatives in Baltimore. But Judge Cummings could pardon Butler altogether, Hoelter says. "It's absolutely theoretically possible that the judge could depart from the guidelines and not sentence him to prison," he explained. "There's no question that that can happen," although Cummings cannot legally waive the fine, which will probably be less than $75,000 but could go to $125,000.

"Downward departures" from the guidelines, as they are called, require the judge to determine that something unique about the defendant makes the standard guideline sentencing range too harsh. Making full restitution is one example, notes Hoelter. Exemplary public service is another possible reason to depart, Hoelter adds, and as former director of the Texas Tech health center's division on infectious diseases, Butler has a long record of performing it. According to Butler's lawyer, Holder, the physician-scientist has conducted research and treated poor patients in Bangladesh, Egypt, Nepal, and India.

Butler's stated reason for transporting plague vials from Tanzania was to show that the antibiotics gentamicin and doxycycline could treat plague effectively, because the government was down to only one other FDA-approved drug it could stockpile. Holder says Butler paid for his Tanzanian research with drug-company payments. "The med school wasn't out a dime in Tanzania," Holder says.

JURY DIVISION

Courtesy of Elizabeth Butler

Butler and his 3 sons in 1998.

One of the most perplexing parts of the jury's fraud convictions is their apparent inconsistency, Holder says. Although jurors found Butler guilty on 44 of 54 counts, they acquitted him of the other 10, even though all 54 were essentially the same act, taking a periodic payment for running clinical trials. "As a matter of fact, says Webster, "a lot of those counts of acquittal were subsequently convictions under the mail fraud and wire fraud charges of the case. So I can't explain it other than to tender the speculation that it's a compromise verdict of some kind."

Jonathan Turley, the George Washington University law professor who will handle Butler's appeal, agrees. "Clearly the jury had found that he was correct in his interpretation [of the university's rules on outside payments] as to some of the counts," he says. "So this is obviously a close question or they wouldn't have acquitted him on some counts."

Jury compromises can be appealed, and people close to the case claim Turley will appeal on this issue if Cummings doesn't pardon Butler. "We asked the court to throw out these counts," Turley says, "because of their obvious contradiction. But we have to wait to see what the court does."

Turley refuses to reveal his full appeal strategy. However, he has said that one ground will be that Butler didn't get a fair trial in Lubbock, where Texas Tech is the largest employer and a ubiquitous presence in jurors' lives.

Another feature of the fraud convictions that Butler's lawyers find hard to understand is how the issue of his drug-company payments could suddenly shift from an in-house administrative matter to a federal criminal indictment. "The government criminalized the contract dispute he had with the university," Turley says, adding, "We have never seen a single case" where that has happened before in the United States.

But Webster points out that the jury didn't buy that defense. "We don't characterize it as a disagreement," prosecutor Webster counters. "We characterize it as fraud and blatant theft. [He] took extraordinary steps to conceal those contracts from his employer, signed on behalf of his employer without authority; concealed it through memorandums and letters denying, effectively, their existence; [and] destroyed their existence, because they were never found by agents."

According to news reports and two people who attended the trial, the accountant in Butler's department testified that he had known about Butler's special financial arrangement for more than a decade and had been assured by his supervisor that it was proper for Butler to periodically give some of it back to the university to support his research. Thus, the defense argues that Butler had reason to believe he was doing nothing wrong.

Again, Webster disagrees. "I think [the accountant's] testimony was limited to the [earlier] Hoffman-LaRoche contract" for clinical drug trials, he said. "[The accountant] categorically denied having any knowledge of the Pharmacia contracts in any form – split contracts, and he categorically denied having any knowledge of the Chiron split contracts." (Trial transcript had not been published at press time.)

According to Butler's son Tom, Jr., who graduated from Stanford last year, Butler erred only in not being "the type of person who would look word for word at the fine print... to see if what he's doing is right at every point. I'm sure his position would be, 'If I think that what I'm doing is right, [and] for the last 15 years I've worked... it's been okay, and nobody tells me anything is improper or even suggests that anything is improper, then why change what I'm doing?"'

But by August 2002, Holder says that Barbara Pence, a Texas Tech dean, had found out about Butler's drug-company payments because she had ordered an assistant to investigate his university-related finances. That started a simmering disagreement which heated up through three rounds of internal negotiations, Holder adds, ending (without agreement, Texas Tech officials say) only a month before Butler reported the vials missing.

With a senior administrator claiming that Butler had violated university rules, Butler's supporters charge, his long-agreed-upon informal "deal" no longer protected him, even though it should have.

Holder says one object lesson other researchers should take away from Butler's case is summarized by the old saw about informal, oral agreements like the one Butler says he had with his department: Oral agreements are "not worth the paper they're printed on."

John Dudley Miller johnmiller@nasw.org is a Cleveland-based writer.