Thursday, July 28, 2011

Judge: You can't change anthrax filing yet. Government must "show good cause"/ McClatchy

From the Kansas City Star, a McClatchy paper, Frontline and ProPublica authors:
A federal judge has blocked, at least temporarily, a Justice Department attempt to back away from court admissions that appeared to undercut previous FBI assertions that an Army researcher was responsible for the 2001 anthrax attacks.
In an order issued Monday, U.S. District Judge Daniel Hurley of West Palm Beach, Fla., said the government must "show good cause" before he will allow it to change the original filing, which lawyers for the department's Civil Division made in an 8-year-old case brought by the family of one of the five victims.
That filing asserted that Bruce Ivins, who the FBI alleges manufactured the anthrax in his government lab, did not have access in the lab to the special equipment needed to make the deadly powder. The Justice Department wants to revise the filing to say that Ivins did have access to the equipment elsewhere at the U.S. Army bio-weapons facility in Frederick, Md., where he worked.
It's unclear whether the department's attempt to undo its filing in the civil suit will result in further disclosures about the FBI's theory of how Ivins could have prepared the anthrax powder contained in letters mailed to Florida, New York City and Washington. Ivins, who committed suicide in July 2008 after learning that prosecutors were pushing for his indictment on five capital murder counts, had been known to work with anthrax only in a wet solution...
UPDATE:  Judge Allows Feds to Revise Filing in Anthrax Case by same authors at ProPublica, Frontline and McClatchy.
... 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 [1] asserted flatly that the U.S. bioweapons facility that employed researcher Bruce Ivins, whom the FBI accused of manufacturing the anthrax, did not have “specialized equipment” needed to produce the deadly powder in the secure biocontainment lab where Ivins had a workspace...
UPDATE Sept. 2, 2011: from the Kansas City Star:
Senator Grassley asks "the Justice Department to explain why its civil lawyers filed court papers questioning prosecutors' conclusions that an Army researcher mailed the anthrax-laced letters that killed five people in 2001.
In a letter this week to Attorney General Eric Holder and FBI Director Robert Mueller, Sen. Charles Grassley of Iowa said the department's decision to quickly retract the contradictory filings "has produced a new set of questions regarding this unsolved crime..."
In his letter, sent Wednesday, Grassley said the Justice Department's initial filing in the court case "seemingly eliminated" the government's circumstantial case against Ivins, who committed suicide in 2008 after learning that prosecutors planned to seek his indictment on five counts of capital murder.
Grassley said he found the department's contradictory filings "particularly troubling" because a National Academy of Sciences panel in February called into question the FBI's assertion that genetic sequencing had definitively traced the source of the anthrax powder to a flask in Ivins' lab. He noted that two USAMRIID scientists, in sworn depositions in the suit, disputed the FBI's conclusion that Ivins could have made the powder in his laboratory.
Grassley also asked for an update on a prolonged investigation into news leaks that publicly identified another former USAMRIID microbiologist as a subject of the FBI investigation.


Ed Lake said...

If you read the court order, it appears that Judge Hurley doesn't think that the corrections are worth the bother, since they do not affect the two legal issues in question.

The first legal issue is a motion by the government to have Judge Hurley dismiss Maureen Stevens' lawsuit because it was filed under Florida laws, and there is a legal precedent that says US Federal laws override State laws in such a case.

The second legal issue is a motion by the government for a Summary Judgment by Judge Hurley declaring that the government has won the case because Maureen Stevens cannot prove that the government was negligent in hiring and employing Bruce Ivins. And, when Maureen Stevens' lawyers changed their argument to say that Ivins was NOT the anthrax mailer and that someone else must have done it, that was just a legal tactic to keep their case from being dismissed. They still can't prove negligence.

The people who run McClatchy newspapers seem to understand that Maureen Stevens lawsuit is likely to get tossed out or ruled in the government's favor, so they appear to be trying to make it look like the government won by deceit or some other improper method. They are making a BIG deal about an error in a single sentence in the filing that has nothing to do with the legal issues.

If Maureen Stevens' lawsuit is dismissed, McClatchy seems to be setting itself up to be seen as the champion of the "little guy" who tried to fight the corrupt and negligent government that allowed Bob Stevens to be murdered by Bruce Ivins.

In reality, if Maureen Stevens loses the case, it's because they didn't really have a good legal case.

At one time, I thought Maureen Stevens had a solid legal case. But, that was probably because I was cheering for the "little guy," too.


Anonymous said...

Finally a civil servant who won't be pushed around by the feds.

Ed Lake said...

One of the Anonymi wrote: "Finally a civil servant who won't be pushed around by the feds."

Presumably, he means Judge Hurley.

As expected, today (July 29) Judge Hurley granted the government's "Unopposed Motion for Leave to File Amended Motion to Dismiss, Supporting Statement of Facts re: Motion to Dismiss and Statement of Material Facts in Support of Summary Judgment Motion."

In other words, the government will now re-file the motion to dismiss and the motion for a Summary Judgment with the corrected wording.

The judge will presumably rule on those motions almost as quick as he ruled on the "Motion for Leave" he granted today.


Old Atlantic Lighthouse said...

The DB Cooper case also bears on the FBI's credibility. If you go to the Wiki article on DB Cooper, there is a section on copycats. None of the copycats are listed as dying from their jumps. Those mentioned lived and all the cases were closed except DB Cooper. So apparently, every copy cat lived in his jump. Yet the FBI says Cooper died in the jump just because they never caught him.

"While FBI investigators have insisted from the beginning that Cooper probably did not survive his risky jump,[6] the agency maintains an active case file"

"In all, a total of 15 hijackings similar to Cooper's were attempted over the course of 1972,[98] with more in ensuing years. Only Cooper, however, has eluded capture or identification."

"In April, former Army Green Beret Richard McCoy (see McCoy, below) hijacked a United Airlines 727-100 after it left Denver, Colorado, diverted it to San Francisco, then bailed out over Utah with $500,000 in ransom money. He landed safely, but was arrested two days later.[91]"

"About three weeks later an unemployed service station attendant named Martin McNally used a submachine gun to commandeer an American Airlines 727 en route from St. Louis to Tulsa, then diverted it eastward to Indiana and bailed out with $500,000 in ransom.[96] Although he lost the ransom money as he left the aircraft he landed safely near Peru, Indiana and was apprehended a few days later in a Detroit suburb.[97]"