NEAL CONAN, host:
At a news conference in Washington yesterday, U.S. attorney Jeffrey Taylor laid out the government's case against Bruce Ivins, a biodefense researcher and the suspect in the 2001 anthrax attacks that killed five people.
(Soundbite of press conference)
Mr. JEFFREY TAYLOR (U.S. Attorney, District of Columbia): We believed that based on the evidence we had collected, we could prove his guilt to a jury beyond a reasonable doubt. Based upon the totality of the evidence we had gathered against him, we are confident that Dr. Ivins was the only person responsible for these attacks.
CONAN: Bruce Ivins' lawyer, Paul Kemp, disagrees. Kemp said yesterday, quote, "The idea that anyone could say that they could convict someone with what they have is stunning." So, how strong is the evidence against Bruce Ivins? How would the government's case stand up in court? We're going to talk with a former federal prosecutor, who's now a defense attorney, about that in just a moment.
If you'd like to join the conversation, especially if you're a prosecutor or a defense attorney and you've read the affidavit against Ivins, give us a call, 800-989-8255. E-mail us, talk@npr.org. Joining us now from the studios from member station WBGO in Newark, New Jersey, is Robert Mintz, former federal prosecutor in the district of New Jersey, and now a partner at the law firm McCarter & English. And thanks very much for being with us.
Mr. ROBERT A. MINTZ (Former Assistant U.S. Attorney, New Jersey; Partner, McCarter & English): Thanks for having me.
CONAN: And I know you've had a chance to look over the affidavit. Now, this is just an application for a search warrant, but it lays out the case pretty well. If you put on your former prosecutor hat, how long - how strong does the evidence look?
Mr. MINTZ: Well, the government believes it's got a pretty strong case here. And from a circumstantial standpoint, it is fairly solid. What the government has done in this case, as they do typically in these kinds of cases, is to try to build them one building block at a time - piecing together small pieces of evidence, which taken collectively, paint a very damning portrait.
And at the end of the day, prosecutors would have argued to a jury in closing arguments, if it got that far, that when you look at all this evidence, it all points to one man. And the odds that one person could have been involved in all of these pieces of evidence - could have worked at the lab, could have been there working late, could have been one of the few people who had access to this particular strain - that logic and common sense would suggest that he is the only person who could have committed this crime.
CONAN: It seems like one of those cases also that would have taken awhile to present in court, because you've got all the evidence, the evidence of, you know, his work schedule at the laboratories, all the expert evidence they are going to have to have about identifying this particular strain of anthrax bacillus, and on and on and on. It wouldn't be over in a couple of days, by any stretch.
Mr. MINTZ: No, that's exactly right. This would have been a very methodical presentation, very scientific, no blockbuster evidence, no smoking gun. It really would have been the government just piecing this together and weaving together a portrait of a troubled person who had, for reasons that I think even the government would have a difficult time explaining, embarked on this deadly crusade to send out these anthrax-laden letters to, you know, a variety of people in the media and in - on Capitol Hill.
CONAN: Yeah, when I read the affidavit today, the opportunity, well, that looked like that might well be there. Motive was a little murky.
Mr. MINTZ: Motive was murky, and you know, it's important to remember that motive is never an element to a crime. So, the government doesn't have to explain why somebody takes certain actions. They only have to prove that they did, but on the other hand, motive is an indication of intent and knowledge, and jurors do look to that to try to understand why somebody did something. And ultimately, the line between intent and motive - end up getting blurred, and that's something here that I think people are still scratching their heads, and it's probably the biggest piece of this puzzle but has not been resolved by the government.
CONAN: And also, the idea of circumstantial evidence, in your experience as a prosecutor, there are an awful lot of cases where you don't have somebody at the witness stand pointing a finger and saying, he's the one who did it, and the prosecutor holding up the fingerprint on the smoking gun.
Mr. MINTZ: Sure, the prosecutors love to have direct evidence. They love to have a photograph, a surveillance photo, a fingerprint, DNA evidence, something that is as much more conclusive than what they have here. But the reality is that oftentimes, prosecutors proceed to trial on cases that are built largely on circumstantial evidence, and the judge at the end of the trial would have instructed the jury that they are to give the same weight to circumstantial evidence as they would have to eyewitness testimony. And then at the end of the process, there's really a balancing test where the government would be arguing that the circumstantial evidence is overwhelming and the defense, on the other hand, would be pointing to all the weaknesses in the government's case and all the evidence that was never presented to the jury.
CONAN: And that's what we want you to do now, is put on your defense attorney's hat and say, as you looked at the affidavit, what are the holes here?
Mr. MINTZ: Well, there are some areas that you would see the defense going after. I think, first and foremost, they would attack directly the most powerful part of the government's evidence, which is the scientific basis that they used to link Ivins allegedly to this crime. This was a very recently used technique, recently discovered technique, that the prosecution had been working on for some time. It, according to the government, demonstrates that the parent flask that was the basis for these - for the anthrax that was delivered in these letters - was in the custody of Ivins. And therefore, he is only one of a handful of people who could have sent these letters out.
That's very powerful evidence for the government because if you accept that evidence, then that narrows the potential criminals who have perpetuated this crime to a very small number of people. The defense, I think, would have spent a considerable time trying to show that the government's scientific basis for narrowing the focus of this investigation to that flask was flawed. So, that's one area that they would go after.
CONAN: Dueling experts can make for, well, doubt in the minds of jurors.
Mr. MINTZ: Absolutely. And also remember that the standard proof here for the government is very high. It's the same standard that is used in every criminal case, which is beyond a reasonable doubt. So, if jurors are simply persuaded by a preponderance of the evidence or simply believe that Ivins was more likely than not the one responsible, that's not going to be enough to convict him. So, if the defense were able to throw any kind of doubt into jurors' minds as to the scientific basis that the government is resting its case, then that could have ended in an acquittal, or at least a hung jury, if jurors were not unanimous in their verdict.
CONAN: Also, would the defense be able to ask: During the course of this investigation, how come the government was suspicious of another government scientist for so long, Steven Hatfill?
Mr. MINTZ: Well, they certainly would try to get that evidence in. That would be something that would be hotly contested, and the judge would ultimately have to make a ruling as to whether the defense was willing - what was going to be permitted to bring that evidence in front of jurors. But certainly, at least in the mind of the public, I think that has, to some extent, undermined the public's confidence in the presentation that the government has made in trying to convince people that Ivins was certainly the one responsible for these crimes. The fact that they focused so much time and attention, and did it in such a public way, on Steven Hatfill, somebody who ultimately was exonerated, I think has left people with less confidence in the government's findings than they perhaps otherwise would have been.
CONAN: He was famously identified as a person of interest in the case by no less than the attorney general of the United States at the time, John Ashcroft. If you were Mr. Hatfill's attorney - excuse me, Mr. Ivins' attorney, would you try to subpoena John Ashcroft?
Mr. MINTZ: You could try. I think you're not going to get very far with subpoenaing Ashcroft, but I do think that you're going to try to, at one way or another, point out that the government has, you know, gone down the wrong road before. They've been certain of other people before and turned out to be wrong. And you're going to try to show that they were under tremendous pressure to try to find somebody responsible for these crimes.
This was a series of very heinous acts, obviously right in the post-9/11 time period, where people were very concerned about, you know, possible attacks from abroad, and the government has been criticized for having taken so long to try to resolve this case. And in part of the defense strategy, I'm sure, would have been to say that at the end of the day, the government had to produce somebody responsible, and they couldn't find anybody who really fit the bill, and so they did the best that they could in trying to blame Mr. Ivins.
CONAN: We're talking with Robert Mintz, a former federal prosecutor in the District of New Jersey and now a defense attorney and a partner at McCarter & English. We'd particularly like to hear from lawyers who've read the affidavit that was presented by the government yesterday in its evidence against Bruce Ivins, 800-989-8255, E-mail talk@npr.org. Dave is on the line. Dave is calling us from Scottsdale, Arizona.
DAVE (Caller): Hi, Neal.
CONAN: Hi there.
DAVE: Hi. There's something very difficult to understand. You know, these envelopes were all addressed, if you remember, by hand, and nobody talks about has there, been any matching of handwriting? I mean, you know, DNA and all of those things are really much more technical, but handwriting is a pretty straightforward thing.
CONAN: At the news conference yesterday, as I understand it, the U.S. attorney said, well, you know, they were written in an attempt to disguise the handwriting in sort of block letters, very childish-looking, and the handwriting analysis would not have been helpful. But Robert Mintz, would that kind of evidence help either the defense or the prosecution here?
Mr. MINTZ: Well, when you're the prosecution, you're going to look very carefully at whether or not you want to compel handwriting exemplars from somebody who you're trying to build the case against. Because if you do those tests, if you get handwriting exemplars and they're inconclusive or worse, the handwriting expert says that they do not believe that the defendant was the one who wrote those letters, that becomes powerful evidence for the defense. Now, that's not a road you're going to...
CONAN: The case is cooked, yeah.
Mr. MINTZ: That's not a road you want to go down, unless you're fairly comfortable that you're going to get the result that you want, and I suspect that what happened here is prosecutors looked at that block lettering and were advised that they're not going to get any kind of conclusive results. And that's why they didn't go down that road.
CONAN: Mm-hm. It suggested they didn't think they would get a good result. Dave, good point. Thanks very much for the call.
DAVE: Mm-hm. There is software for analyzing these things, you know.
CONAN: Yeah. We're talking about the evidence for and against Bruce Ivins and how strong it looks. You're listening to Talk of the Nation from NPR News. Let's hear from James, and James is with us from Sonoma in California.
JAMES (Caller): Yes, good afternoon.
CONAN: Good afternoon.
JAMES: I'm a senior deputy district attorney. I've been a career prosecutor for about 25 years and I've tried probably well in excess of 100 felony cases to a jury to a verdict. I'd just like to briefly address two points concerning the concept of charging a case. Certainly in California and many other jurisdictions, the singular rule when reviewing a case for charging purposes is, can we prove this to the jury beyond a reasonable doubt? Yes, we charge it; no, we do not. So it's not, from that perspective, a complicated decision-making process. I heard the quote from the doctor's attorney saying that he was apparently rather incredulous that the U.S. attorney had stated that we could prove this to a jury beyond a reasonable doubt. But again, that is the standard that guides us in charging a particular case.
CONAN: Defense attorneys are often incredulous.
JAMES: Oh, yes. Secondly, I believe your guest, the former federal prosecutor, mentioned this. But again, in California, and I believe in a number of other jurisdictions, circumstantial evidence is as good as direct evidence. There's no difference between the two and the defense attorneys, again, love to note the point that it's a circumstantial case, while the truth of the matter, of course, is that the majority of cases that are presented to juries are circumstantial cases.
CONAN: So, based on what you've seen, you would feel really fairly comfortable taking this case to a trial?
JAMES: Oh, yeah, I would certainly have charged the case had it been my decision, and I think it would have been a marvelous case to present to a jury.
CONAN: An interesting one. There's one big hole we've not mentioned, and that is that the government apparently cannot place the suspect, Dr. Ivins, at the post drop in Princeton, New Jersey, the place where the letters were mailed from. You think a good defense attorney could make some hay on that?
JAMES: Oh, perhaps. They're very good at making hay, of course. But again, it's the nature of a circumstantial case that a juror has evidence before it - facts before the juror. And from those facts, they infer the existence of another fact. So, simply because one part of the puzzle is missing in terms of direct evidence, it doesn't preclude a juror from inferring that based on other evidence that's before the jury.
CONAN: James, thanks very much for the call. Appreciate it.
JAMES: You're welcome.
CONAN: And let's see if we can get another caller in. This is Nick, and Nick is with us from Ann Arbor in Michigan.
NICK (Caller): Yeah, hi. So, my point was only that the fact that the government initially suspected the other fellow there, that Ashcroft had that press conference, I really don't think that that evidence would ever be admissible in trial, unless the defense's point would be that he, in fact, committed the crime. If it was that the government in making accusations isn't that accurate in making them, the fact that you're indicted isn't evidence of guilt. So, rebutting the accusation, there's no need to do that. It's totally irrelevant for that purpose.
CONAN: Steven Hatfill was never indicted.
NICK: I mean, yeah. I mean, if this were to go to trial, that's what I'm talking about. Because previously, you were talking about the admission of evidence in a case, what a defense lawyer could do with the fact that the government had previously suspected someone else very publicly so and wrongly.
CONAN: Do you think he's right about that, Robert Mintz?
Mr. MINTZ: Yeah, I do agree with that. I think at the end, the judge is not going to allow that kind of evidence in. The impact, though, that it may have, the role it could possibly play in this case, had it gone to trial, is that it's possible you're going to have jurors who will have heard of that other case, and that may make them a little more skeptical of the government's case, having known that they spent considerable time going after somebody else. But as a matter of law, I do agree that the judge is going to say that that does not bear on the guilt or innocence of this particular defendant. It's not part of the government's case and probably not going to let the defense bring it in.
CONAN: Nick, thanks very much.
NICK: Thanks a lot.
CONAN: And I've just a few seconds with you left, Robert Mintz. But given the choice, which hat would you rather wear if this case had gone to trial?
Mr. MINTZ: Well, I agree with one of the callers. This is a strong circumstantial case. I think the real answer is, we'll never know exactly how this would have played out because, of course, the defense really hasn't had a chance to test the evidence and that's what a trial is all about. The government makes allegations, the government charges somebody, and then it's not until it's really put to the test, at trial, where the defense has a chance to cross-examine the government's witnesses and to present its own witnesses, that we know if it will really stand up. But at this point, it's fair to say that there's quite a bit of evidence pointing to Mr. Ivins, and the question is really whether the government could have proven that case beyond a reasonable doubt. CONAN: Robert Mintz, thanks very much for your time.
Mr. MINTZ: My pleasure.
CONAN: Robert Mintz, a former federal prosecutor in the district of New Jersey, now a partner with McCarter & English. He joined us from the studios at member station WBGO in Newark, New Jersey. Tomorrow, Ira Flatow is here with Science Friday, and we'll talk to you again on Monday. Have a great weekend, everybody. This is Talk of the Nation from NPR News. I'm Neal Conan in Washington. Transcript provided by NPR, Copyright NPR.
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