Taking a high-stakes legal gamble that could lengthen his 2-year prison term, former plague researcher Thomas Butler is appealing his conviction for mishandling bacteria samples and defrauding his university. Government prosecutors say they will respond with their own request to erase a judge's decision that cut 7 years off a possible 9-year prison term.
Butler, 63, captured national headlines last year after he reported 30 vials of plague bacteria missing from his Texas Tech laboratory, sparking a bioterror scare. The government ultimately charged him with 69 counts of lying to investigators, moving plague bacteria without proper permits, tax fraud, and stealing from his university by diverting clinical trial payments to his own use. Last December, a Texas jury acquitted him of the central lying charge and most of the plague-related allegations but convicted him on 44 financial charges and three export violations involving a mismarked Federal Express package containing bacteria (ScienceNOW, 2 December 2003.Despite having his sentence reduced by federal judge Sam Cummings, Butler is now asking the appeals court to strike down the convictions, or at least order a new trial. He argues that his trial was marred by the government's refusal to try him separately on the plague and financial charges, its use of vague university financial policies as the basis for criminal charges, and a judge's ruling that barred Butler from gaining access to university e-mails. Prosecutors are expected to file a response later this month, and a hearing in New Orleans, Louisiana, could come as early as January.One of Butler's attorneys, Jonathan Turley, a law professor at George Washington University in Washington, D.C., expects the government to ask the appeals court to impose the maximum allowable 10-year sentence for the export violations. Butler "is willing to risk a longer sentence to fight for important principles," says Turley. Butler also rejected a pretrial government plea bargain offer that included 6 months in jail."Butler is taking a huge, huge risk," says former prosecutor Larry Cunningham, a law professor at Texas Tech University in Lubbock. "The judge gave him a sweet deal; this gives the government a shot at overturning it."