Judge allows feds to revise filing in anthrax case

Frontline, McClatchy Newspapers and ProPublicaJuly 29, 2011 

WASHINGTON — Justice Department lawyers, defending a wrongful death lawsuit filed by the family of the first victim of the 2001 anthrax letter attacks, won a judge's approval Friday to withdraw a court filing that seemed to undermine the FBI's assertion that an Army researcher was the killer.

U.S. District Judge David Hurley of West Palm Beach, Fla., accepted a government attorney's declaration that the FBI and federal prosecutors didn't alert the government defense team to 10 errors in a statement of facts until after it had been filed in court on July 15.

The initial filing asserted flatly that Army researcher Bruce Ivins, whom the FBI accused of manufacturing the anthrax, lacked the "specialized equipment" needed to produce the deadly powder at a U.S. bio-weapons research facility in Frederick, Md.

The revised filing said that Ivins had access to a refrigerator-sized machine known as a lyophilizer, which can be used to dry solutions such as anthrax, at the facility in a less secure lab. In addition, it said that Ivins also had a smaller "speed-vac" that could be used for drying substances in his containment lab.

Ivins committed suicide on July 29, 2008, not long after federal prosecutors advised his attorney that they were on the verge of seeking his indictment on five capital murder counts. Early last year, the Justice Department closed its eight-year, $100 million investigation into the case and officially declared that the career anthrax researcher had mailed the letters shortly after the Sept. 11, 2001 terrorist attacks. The letters were addressed to three media outlets and Democratic Sens. Patrick Leahy of Vermont and Tom Daschle of South Dakota.

The embarrassing legal flip-flop occurred as the government sought the dismissal of the $50 million wrongful death suit, which had been filed eight years ago by the family of Robert Stevens, a photo editor for American Media Inc. in Boca Raton, Fla. Stevens was the first person in U.S. history known to have died from an anthrax attack. Four others died from exposure to anthrax, including two postal workers, and 17 people were sickened.

In the suit, Stevens' family charged that the U.S. Army Medical Research Institute of Infectious Diseases (USAMRIID), where Ivins worked, was negligent in failing to secure stocks of anthrax, one of the world's most dangerous pathogens.

The government also retracted statements that suggested that live anthrax spores from a flask in Ivins' lab had been distributed more widely than the FBI had asserted in making its case against Ivins.

In its initial filing in the Stevens case, the government said that the spores were shipped to several private laboratories, including "at least" the Battelle Memorial Institute in West Jefferson, Ohio; Covance in Princeton, N.J., and BioPort in Lansing, Mich.

But in its revised declaration, the government said that Battelle was the only lab known to have been sent live spores.

It said that "a witness indicated" that material sent to Covance "would have likely been irradiated (killed) before shipment to Covance" and that the anthrax marked in Ivins' log as going to BioPort actually was associated with another researcher at USAMRIID and was "thus presumably used in-house ... and not shipped to BioPort."

The FBI has said that it eliminated all suspects other than Ivins, including those from outside laboratories.

(McClatchy, the investigative newsroom ProPublica and PBS's "Frontline" collaborated on this article. Wiser reports for Frontline, Gordon for McClatchy and Engelberg for ProPublica.)

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