Rachel Lieber: The Case Against Dr. Bruce Ivins
October 10, 2011, 11:55 pm ET
Because of his suicide, Assistant U.S. Attorney Rachel Lieber never got a chance to try her case against Dr. Bruce Ivins in front of a jury, but she is confident she could have convicted him for the anthrax attacks. Here she tells FRONTLINE how she would have done it. This edited transcript is drawn from two interviews, on July 8 and Sept. 29, 2011.
Take us to the crime scene [at Sen. Tom Daschle's office]. What do investigators have to deal with at that point, and what’s the process?
… All the buildings shut down on Capitol Hill. The letter was taken quickly up to USAMRIID [United States Army Medical Research Institute of Infectious Diseases] in Fort Detrick, Md., for the initial preliminary tests. Scott Stanley, who was one of the lead FBI scientist investigators on the case from the very beginning, himself seized the letter and brought it up to John Ezzell at USAMRIID to begin the initial stages of the analysis.
How much like a normal crime scene is this? …
If you think about it, it was a crime in progress, because it is live anthrax spores. So in your traditional homicide crime scene, you have usually the victim, and you have whatever physical evidence is there, whether they be shell casings from the gun, blood splatter on the walls, any of that. But it’s a stagnant scene. Your ability to process a stagnant scene is very different from a live scene. And this was by all accounts a live scene, where we had virulent anthrax spreading. And the fear was that it was absolutely spreading through the entire Senate office building.
So in that way, it was significantly different. Much greater care had to be taken into how the scene was processed from a safety perspective. All scenes are processed with great care in terms of collection of evidence and that sort of thing, but this was different, because it was very much a crime in progress. …
It’s not just the science. It’s not just strange behavior on the part of Dr. Ivins. It’s not just an obsession or two. … It’s the confluence of all these things taken together. … Only when you take a step back and you look at all the evidence taken together can you realize that this is the right person.
Why does it go to USAMRIID?
There had already been an established procedure where USAMRIID was the laboratory of choice for all the white-powder letters. …
… How much of a new world is it [in terms of the investigation]? …
Obviously this is the first real bioterror attack inside the U.S. that had ever happened. We already had the death of Mr. [Robert] Stevens, [a photo editor at The Sun tabloid newspaper], down in Florida, so there was already someone who had died from this. So the law enforcement community knew that this was significant, and there were certainly systems in place that were being developed. …
This was the first real test of those systems. And I have to say, I think it did work extraordinarily well in terms of collection of the evidence, getting immediately to a secure facility where things could be processed, where material could be processed. …
Why was it so extraordinarily important that we discovered early on that it was Ames?
Anthrax is [found in] a lot of places. Ames is a very small sub-strain of anthrax that is only found in laboratories, really. It originated in I think 1981 in Sarita, Texas, and it was shipped to USAMRIID. … And it was shipped out very carefully to other laboratories over the course of time, but again, only in a laboratory setting.
So, to know that it’s Ames strain, we know that it really is going to be almost certainly in the U.S., which helps narrow considerably, again, the global whodunit. …
So who does that focus the attention onto as the perpetrators?
… One of the initial things that we did in the investigation was subpoena all the domestic laboratories to try to find out who has the Ames strain. That helps us narrow the field … to these 15 or 16 labs within the U.S. …
Similarly, given the quality of the material, the extraordinary purity and concentration of the material in those letters led investigators to start looking more closely early on at individuals with that technical expertise. It helps sort of eliminate some of the outliers, people who might have had access to the Ames strain but who were animal handlers who helped work on experiments. …
Very early on, of course, the attention is on Al Qaeda. … How quickly does our attention turn away from a foreign source for this?
… It’s certainly true that much of the investigation tried to drill down on domestic and who had those capabilities.
At the same time, there’s absolutely a concurrent investigation going on into the overseas aspects of this, the potential, because sure, the evidence may lead us one way, but you never want to discount other possible perpetrators. …
I think it’s important also to remember that it wasn’t just a handful of scientists at the FBI lab or a handful of scientists at the FBI lab and a couple of folks up at Fort Detrick. This was an extraordinary collection of expertise, both foreign and domestic, from all across the spectrum of scientific disciplines that sat down and helped us try to figure out where could this have come from? And if it came from here, what does that mean in terms of narrowing the subset of the universe of potential suspects?
How up to the task were our investigators, the FBI, the postal services scientifically to understand what was before them and to really progress with the investigation?
I think they were extraordinary in their ability, frankly, to marshal all these outside resources as well. It takes a lot, I think, to recognize: “Look, this is a huge, huge issue, and in-house, we don’t have all the expertise to manage every single one of these aspects. So in a case like this, we absolutely are going to rely on our colleagues in the biodefense community.” …
They created these what we call Red Team reviews. So if there was a chemical issue, they would find the best chemists to take a look at the chemical signature or whatever. They had the best microbiologists to look at how pure it was, how concentrated it was, what does that tell us.
So it was really the ability to recognize [that] no laboratory in the world could have the top-of-the-top experts in all of these different disciplines. And it’s the ability to bring all those people together to sit down and say, “Let’s figure out how to do this.”
So how you’ve defined it is that is that very quickly on, we understood that the probable culprit involved in this had to be pretty savvy and probably was involved in some way with one of our labs. This is also the place that we go for our expertise to understand what to do, how to help us with the investigation.
So what’s the problem here, and how is it dealt with, the fact that it’s very possible the people that are helping you in the investigation are, in fact, possibly the guilty folk that were involved?
Right, and that’s quite a dichotomy, to have the experts who were helping you also be the suspects. But I think that’s just the nature of this kind of event. It’s the nature of this kind of crime, that the people you have to rely on are the ones themselves capable. …
That’s why we also had an extraordinary amount of FBI lab personnel basically embedded at Fort Detrick for a number of years going side-by-side and step-by-step with the scientists up there as things were processed, not necessarily to just keep an eye on them, but to also have this be a collaborative process. …
Attention turns to Dr. [Steven J.] Hatfill. Why?
I think that a lot of this is obviously played out in a lot of other arenas. If you read, for instance, the search warrant affidavits to search his apartment and that sort of thing, there were a number of flags that went up with respect to a number of people, Dr. Hatfill being among them.
I do think it’s important to point out that while certainly there was some focus on Dr. Hatfill — we all know this — that at no given time was just Dr. Hatfill a singular, sole focus of this investigation. …
Did he get more attention than many? Absolutely, and that just deals with a lot of things that he’d written and other aspects, again, of Dr. Hatfill. I have to stress that that was before my time, again, in the investigation, so I’m not the expert on what was happening back in the early stages of the investigation. …
Why does the attention turn away from Hatfill eventually?
… At the time that people were becoming less interested in Dr. Hatfill, the science was really coming into focus, where it was looking more and more every day like RMR-1029, [which] was this flask of spores at USAMRIID, was the parent material to spores that were mailed. … Over time, it developed that Dr. Hatfill didn’t have some of the expertise that would have been required, nor the access to that material for — I mean, among a number of other reasons why he was no longer a focus of the investigation.
… How are you brought into the case? …
… I was added to the case in the spring of 2007 as we really began to focus on people who had access to 1029 and really began to push the investigation. …
If there had been an indictment brought, what would your role have been?
My role sort of increased over time. When I first came on the case, I was coming onto somebody else’s massive global whodunit, multi-continent investigation. So I just really started to jump into dealing with witnesses and getting to know the science, which took some time to learn the science.
Then over the course of the ensuing I would say six or eight months, I began to do more of a synthesis of the evidence, a synthesis of the investigation to try to figure out where else do we need to go, who else do we need to be looking at.
I think by I would say January 2008, we were really, I think, beginning to focus pretty closely on Dr. [Bruce] Ivins. I think that’s fair to say. And at that point, I viewed my role as trying to piece together everything we had and take a hard look at what do we have, what can we use in court, do we have enough. If not, what else do we need to do to make sure that we’re correct in our assessment that this is the right person, that we ruled out all other suspects, that … we have evidence to prove that in court, that it could not have been this other person?
So into the winter, spring and summer of 2008, that was really my role, was synthesizing evidence, writing a prosecution memo where I tried to pull all these pieces together … and get the indictment ready. …
Let’s talk about Dr. Bruce Ivins. Number one, who is he? What’s his reputation in this world? What was his involvement initially with the investigation?
During the course of the investigation, his role and what we knew about him and about his reputation evolved over time.
He certainly was an extraordinarily skilled microbiologist. That’s why he was one of the people who did the initial evaluation of the Daschle letter. I have here his actual report where he describes the material that he viewed, that he worked on it. He did, really, the truly preliminary snapshot assessments of this material because he was so good at what he did, which was to make very pure, very concentrated spores to test vaccines that were protecting our soldiers. His reputation, well earned by everyone we spoke to in the course of the investigation, was that of an extraordinary microbiologist.
So you met Dr. Ivins a few times.
… What was he like?
… I met him on a handful of occasions for carefully planned interviews with him and his lawyers present, two interviews here in the U.S. Attorney’s Office in D.C. and one at his lawyer’s office in Rockville, Md.
I think that, depending on the question he was asked, his reactions were very different. He was quite comfortable speaking about a whole litany of topics that might make someone uncomfortable normally, talking about an obsession with a sorority and sort of his history and how that developed. Quite forthcoming, and at ease in some sense when talking about those particular topics.
However, when asked other questions that I think … were obviously cutting close to the heart of the investigation, his reaction was markedly different. When asked about a certain diagram that he’d given the investigation, he pushed his chair back from the table and asked us a lot of questions about where did this diagram come from. “Did I write this diagram? When was this?” — that sort of thing. He was much more I would say reticent and guarded, and those questions I think, quite frankly, were ones that did cut to the heart of the investigation. …
Why did the attention turn to Dr. Ivins?
There are a number of reasons. Again, I do want to stress that so much of this is an evolutionary process. The same thing would have happened in trial, where we would have had to explain this is how the evidence developed over the course of time. …
We’d gotten to the point in the fall of 2007 where I had expert witnesses who would have been able to testify about the validity of the science, so that to me was a real marker.
At that time, you take a very hard look at who had access to RMR-1029. And when you look at that, you think not only who had access, but who had access with the skill set to create these highly purified, highly concentrated spores.
And then you go and take a look at the lab hours. Who had access, and who was alone? Because you don’t whip up a batch of dried anthrax spores in front of a whole lot of people. So we started taking a very hard look at access records. …
That is I think one of the most compelling aspects of our investigation and certainly would have been a very early focus point of any trial, would have been taking a look at Dr. Ivins’ access to the material late at night, on weekends, when nobody else was around, relative to all the other investigators.
And he stands alone. One of my first days working on the investigation in spring of 2007, one of the agents, Lawrence Alexander, who was one of the lead agents on the case, showed me basically a graphic of everyone’s lab access hours. When everyone else was in the lab between 8 a.m. and 4 p.m. generally, or 7 [a.m.] and 3 [p.m.], he said, “Do you see anything different?” And it was just extraordinary when you see Dr. Ivins’ lab hours all late at night, on the weekends, when nobody else was there. The graphic itself told quite a story. So that was quite significant.
Also significant was the fact that his lab hours spiked in August and then really September and October of 2001; never before and never after had he shown anything like that, those late-night and weekend lab access hours. That was extraordinary. …
These are real, concrete things you can point to to show opportunity, which is significant.
… Was this the first thing? When was the first time you sort of said, “Hmm, maybe we need to look deeper into this guy?”
… Certainly that was very significant to me, and that sort of informed my early thinking about the strength of the evidence against Dr. Ivins.
And then, as I began to learn more about his habits and his tendencies and his long drives and his unexplained absences and the fact that he would go on long drives like people go for walks — and again, this is important, because the letters were mailed from a mailbox in Princeton, N.J., about three and a half hours from Frederick, Md. — learned that this was consistent, [that] three-and-a-half, four-hour drives to him were nothing, that this was a pattern that he engaged in, I thought that was significant.
It was really the confluence of these things, learning more and more about his own patterns and practices, and then taking a careful look at e-mails that he had sent, statements that he had made in the past. Again, these are real, concrete pieces of direct evidence. The statement of a defendant is direct evidence. So as these aspects of his life developed over time and we got more insight into some of the mental struggles that we believed he was having, it helped inform the big picture. …
The interviews themselves proved to be quite significant. I would say that I think at the point that we did the first interview, there’s a lot of things we thought we knew about Dr. Ivins, we were pretty confident about, but it’s quite another thing to have the evidence to prove that point. So Dr. Ivins made statements that were direct evidence that we could now use against him in trial that confirmed what we thought. The case was strengthened considerably based on those interviews, those on-the-record interviews.
He comes in with his lawyer. How is he reacting? How is he in the meeting, and what it’s like to be in that room?
Sure. I think that he was nervous, understandably. I think anybody, whether they’re guilty or not, when they’re brought into a room full of FBI agents and prosecutors, it’s not the most comfortable experience, so he was pretty clearly nervous.
It was a conference room here at the office, the U.S. Attorney’s Office in D.C. It was Dr. Ivins; his lawyers, Paul Kemp and Tom DeGonia; Ed Montooth, Vince Lisi, who were both FBI; Ken Cole, one of the other prosecutors on the case, and myself. And that interview probably lasted three and a half or four hours maybe, and it really just covered a wide range of topics. We had ground rules that we had set with his lawyers about the areas that we were going to cover, so they knew the topics that we wanted to cover.
The idea behind this initial interview was to hope to get some information, establish a rapport with Dr. Ivins, and then come back at a later date and do a follow-up interview, which actually did end up happening. There was a lot of internal discussion about how far to go, what kind of tone to take with him. What we wanted to do was establish some basic corroborative evidence, corroborate what we thought we knew.
We really knew, based on his e-mails and his conversations he’d had with people and his Internet postings, that Kappa Kappa Gamma was a really big deal to him, this sorority. We didn’t know why, but we knew it was a really big deal. And why it was relevant to us as investigators was not because it might seem strange, but because of the proximity of the mailboxes where the letters were mailed to a Kappa Kappa Gamma location. We knew anecdotally from other people that Dr. Ivins had a very strong interest in Kappa Kappa Gamma. We thought we knew that he had broken into some Kappa Kappa Gamma sorority houses. …
But hearing it from Dr. Ivins himself was extraordinarily significant. I could then put Vince Lisi from the FBI on the stand at trial to testify, “Dr. Ivins said he was obsessed with Kappa Kappa Gamma.” It was an obsession we wouldn’t understand.
He told us the genesis of that obsession, that it dated back 40 years, and he methodically explained to us about his habit of driving three or four hours in any given direction to visit Kappa Kappa Gamma houses.
To us, this was kind of an “aha” moment in the investigation. We now have an ability to prove in the own words of Dr. Ivins — so, again, direct evidence, his own words — why the location of the mailbox is so significant. It is within 20 or 30 feet, I think, where the letters were mailed, from the Kappa Kappa Gamma location at Princeton University. That to us was significant, to be able to now prove it through his own words.
Why is that significant?
… It is a way to connect Dr. Ivins to that crime, to the location where the letters were mailed. It’s a very significant thing to be able to say: “Ladies and gentlemen, Dr. Ivins, he showed this pattern of driving three or four hours in any direction from his home essentially to surveil Kappa Kappa Gamma locations. How do we know this? Because Dr. Ivins told us. And here, ladies and gentlemen, you’ll see this picture. Here’s where the mailbox was; here’s where the Kappa building is. It’s completely consistent with his pattern of his behavior.”
Was there any evidence of him surveilling that office?
The evidence of his surveillance of Kappa locations all came from him. He never told us that he himself surveilled that, no. …
[There's] no DNA evidence in the letters, no hair samples in the mailbox, no photographs from tollbooths of him going through, no receipts. So describe a little bit more why this still seemed to be significant, yet the lack of that evidence.
I think that in the CSI world in which we live, we all wish and expect that there will be a hair everywhere that’s going to connect the person to the crime scene. As great a show as CSI is, that’s not really reality.
The fact that there are no tollbooth photographs, how long do tollbooth photographs … exist? Again, you have to look at this temporally. Almost a year passed between the time the letters were mailed and there was the discovery of where they actually were mailed. So you have to look at that time frame. Every aspect of that was investigated, I can assure you, and no physical evidence on that particular narrow aspect of the investigation exists. But that’s not to say it didn’t happen, and I think that’s really important to remember. …
What we say to jurors is — a defense lawyer in D.C. used to famously say: “Don’t check your common sense at the door, ladies and gentlemen. Bring it in here with you.” … When you mail a letter, do you think you drop a hair into the mailbox? You don’t. And if you left a fingerprint on the pull drawer of the mailbox, would you expect it would be there a year later, after rain and wind and snow and hail and everything else? No. …
I think it’s also important to remember that there are federal rules of evidence; there are federal rules of criminal procedure. There are no rules in the court of public opinion. So people can say whatever they want, and that’s fine. … The rules of evidence exist for a reason: to keep the jurors’ eyes on the ball. What’s relevant, and what’s not? What is reliable; what’s not? What’s speculation, and what’s not? In a court of law, there’s no speculation. There’s only relevant admissible evidence. …
You said when the meeting began, he was nervous. How was he when he was talking about Kappa Kappa Gamma and when he was revealing this stuff? …
I think that when Dr. Ivins talked about Kappa Kappa Gamma, it felt, in retrospect now, he sort of was lost in his own thoughts, kind of. I mean, the way he described in this very animated way driving to the University of Virginia in Charlottesville to take a walk around, one lap around the Kappa house, back into his car, drive the three and a half hours back to Frederick, he really was in the moment.
Describing breaking into the Chapel Hill Kappa house and how he got in through a window and carefully walked throughout the house, he really was reliving those moments in a way, again, in his self-described obsession. So I think when he was talking about his Kappa experiences, it was part of his Kappa obsession, and I do think he seemed quite comfortable talking to us about that.
I didn’t have any sense that he thought he’s now given himself up, because we didn’t say, “Look, we’re really curious about Kappa because of the mailbox.” We never said that. We said: “Tell us about this. Tell us about your interest in Kappa Kappa Gamma.” And he said, “Oh, no, it’s not an interest; it’s an obsession.”
And he was completely willing to talk about that?
Absolutely. And again, there were certain aspects of it that were somewhat unusual, certain aspects of his obsession with the sorority and the lengths to which he went to examine and learn more about the sorority and his theft of ritual materials and his litany of Internet postings on Kappa websites, on other Greek websites. He was perfectly comfortable talking about those things.
His relationship with [microbiologist Nancy] Haigwood, does that come up within this meeting?
I don’t think so. …
What did you know at that point about what she had said about him? Why is that relevant?
It was relevant because it just — again, it demonstrated the intensity of his feelings about Kappa, and how he associated Nancy Haigwood was what he called the Kappa ideal of they’re beautiful, they’re campus leaders, they’re intelligent. And that, I think, was very much the regard in which he held Nancy Haigwood.
And certainly over the course of the interviews, … he confirmed what we had suspected, was he had vandalized her car and the area outside her apartment. … He admitted to using the name of Nancy Haigwood’s then-husband to rent a P.O. box at the Frederick post office; that he used variations on her husband’s name to post things on different Greek websites. He offered to mail the actual ritual materials to people who were interested in learning all of Kappa’s secrets.
These are all things that we had other reason to believe he did, and Nancy Haigwood certainly thought that he was the one who had done this vandalism. But now, hearing it again from his own mouth, again, was quite significant to be able to say it’s not just what we think. He has now told us; he’s confirmed for us. …
What struck me personally about these interviews with Dr. Ivins, and all three of them, was he had an extraordinary memory for details dating back 40 years, anything that was tied together with his obsession. He could tell you chapter and verse on the day that his Kappa Kappa Gamma obsession began based on being turned down for a date by a particular coed from Kappa, her name, that he asked out another Kappa six months later, her name. We’re talking 1964 or something. And his ability to really remember what month it was that he broke into a chapter house in Chapel Hill in the ’80s, or the exact address of Nancy Haigwood’s apartment in Gaithersburg in 1981 — extraordinary memory for these details.
However, juxtapose that with his memory for really critical aspects of this investigation: how did you prepare the slants of the material that you sent to the FBI repository and the sort of convoluted, inconsistent answers that he gave to that question when asked over and over and over again in all different settings by scientists, by lawyers, by FBI agents, by postal inspection agents. Never once was he able to give a consistent answer. And it finally came down to, “You know, I just don’t remember.” … I think the contrast there is significant, and that would have been something that, again, at trial, we would have juxtaposed those two things in exactly that way, I think.
Who was Nancy Haigwood? Give us a little bit more background.
Nancy Haigwood was a student at the University of Chapel Hill in North Carolina, a graduate student when Dr. Ivins was a graduate student. … She was someone who he admitted to us he was quite taken with. When he learned she was a Kappa Kappa Gamma member — and in fact, I think she was the chapter adviser of the Kappa chapter at Chapel Hill — he set out to learn everything about her. He wanted to befriend her.
I think she was a very complicated person in his life. And over the course of the time that he worked with her at Chapel Hill, he engaged in all sorts of behavior that was bizarre toward her. I think you’d have to ask her, obviously, about how she felt about him, but it was a very complicated relationship that he had with her.
But that is an obsession sort of tied together with his root Kappa obsession that he took with him when he moved from Chapel Hill to Maryland. … He found out where she lived and vandalized her car and spray-painted “KKG” I think on the sidewalk or the fence in front of her house. She really was, I think, an embodiment of Kappa to him. …
So how does she come into play in this case?
Interestingly, shortly after the attacks happened, the American Academy of Microbiologists sent out a request, I think, based on the task force saying to microbiologists nationwide, “If you have any information, if there’s anything, anyone that comes to mind, please let us know.” And she actually responded to that and said, “There is this guy that when I read this, I think of Bruce Ivins.”
So she was interviewed early on, and then over the course of the investigation, later, as we were more and more focused on Dr. Ivins, we had a number of conversations; agents had a number of conversations with her, again, about Dr. Ivins.
We learned that he had contacted her. She hadn’t heard from him or spoken to him in many, many years. And I think quite significantly, between the time the letters were mailed on Sept. 17 or 18, 2001, and before Mr. Stevens got sick, in that window, he reached out to her for the first time in many, many years and engaged with her about lab procedures at USAMRIID and how things are really tight now after 9/11 and that sort of thing. That’s when she first sort of was, to her knowledge, back on his radar screen.
Why is that significant, that he reaches out at that particular moment?
I think it’s foreshadowing. He knows he’s mailed the letters, and they have yet to come to light. But again, so much of what we’ve learned about Dr. Ivins’ psyche was his need to be important, just [his] need to be a go-to person as he was obviously in the early stages of the investigation. His reputation to him, his life’s work, was critical to who he was. And so to be able to put himself back on her radar screen to say, “Here I am, an expert.”
And he sent her pictures of himself. I think there’s this famous picture of him handling a spore plate without gloves on that he sent to her. So that when the news does hit, he contacts her sometime in that two- or three-week window between the mailings and when the first sicknesses come out, that she’s already then thinking in her mind, “Oh, there’s Dr. Ivins.” That’s why to us it was significant.
And again, how much of this plays out at trial or how it would have played out at trial, I’m not sure. But certainly, from a purely investigative standpoint, it helped inform our thinking about, are we headed in the right direction? Are we focusing on the right person? Her contributions were significant to that. …
[Why is the timing of these e-mails significant?]
I think that the important thing to focus on in terms of his outreach during the critical time between Sept. 18, 2001, and Oct. 4, 2001, that two-and-a-half-, three-week period, is the people to whom he reached out: Nancy Haigwood; [his then-lab assistant] Mara Linscott; some of these other people, the people who were to him so closely tied to his obsessions and his psyche. …
It’s not just the people he chose to reach out to and talk to in detail about this, but it’s the details that he used. It’s the language that he used. You know, “We’ve been told to keep an eye out for bioterror attacks.” These are in e-mails. “I just heard today that bin Laden for sure has sarin gas and anthrax. Thank goodness we’ve all been vaccinated” — these sort of foreboding, premonition kind of things, sort of laying the groundwork for this is what’s coming. …
We also learned in the course of the investigation that words really matter to him; linguistics really mattered. … We have e-mails where he talks about the great feeling he has when he unlocks the secret. He told us that when we interviewed him, talking about the cipher that he stole from Kappa Kappa Gamma and their book of ritual and his ability to decode those things. …
I think his ability to — again, to go back to the window of time between Sept. 18 and Oct. 4, 2001, it’s reaching out to those people that were so important to him, saying: “I’m solving this. You’re going to think when you first hear about that someone got sick from anthrax, you’re going to think: ‘I heard this was coming. Bruce told me this might be coming.’” And the actual language of the letters themselves, when you compare those two, it’s striking, is really striking.
Back to the [interviews]: Were there other “aha” moments that come out of that meeting, other things, other topics that were discussed that maybe were delved in further later on besides the KKG situation?
… There were definitely a number of significant moments in some of these interviews where I thought, OK, I’ve got it now, I can now prove that point with the words of the defendant himself, which is the most direct evidence you can get. …
His talking about his need to go on long drives, his talking about why he would mail packages under false names, we could say: “This person got a package clearly from Dr. Ivins. She figured out it was from him. It said it was from Derek Jeter. It was because she liked the Yankees. It’s pretty clearly from Dr. Ivins because he would tease her about the Yankees.”
But then to hear from Dr. Ivins himself — “Yeah, I mailed this package. That was me. I mailed this one when I was at this conference three hours in the other direction” — to be able to use his own words in that way to demonstrate this is somebody who would drive three hours and mail something under an assumed name. …
But, I mean, somebody would say taking long trips, we all do that. Every once in a while, the pressure gets too much, and you take a long trip. I mean, how significant is something like that?
It’s significant for two reasons. One, because it wasn’t just an every-once-in-a-while kind of thing. Dr. Ivins himself admitted that this was — basically, he effectively said: “I go on long drives the way people like you go on long walks, to clear my head. I do it routinely.” So, not to get too much into the law, but when you get in pattern or habit evidence, there has to be a lengthy pattern. It can’t be a once-or-twice kind of thing. From his own words saying, “I do this all the time,” that is significant. …
There’s a second reason why it was compelling, which is he said to us, effectively: “I don’t have an alibi, because I tell my wife I’m going to the lab, and in fact I’m driving to Morgantown, W.Va. I tell my wife I’m going here; in fact, I’m driving to Charlottesville, [Va]. She doesn’t know where I go at night.” So that was also quite significant. To be able to foreclose any ability for his wife to come in and testify, “Oh, he absolutely was with me that night,” he completely undercut that with those statements. …
When the [first] meeting is over, are you convinced it’s him? And does he know you’re convinced it’s him, if you are?
… I think that first interview, to me, was a crystallizing moment, or a crystallizing few hours where I thought this is the right person, and now, not only is this the right person, but I’ve got evidence to go to trial with, and that was quite significant. And that only increased over the course of the next two interviews. …
So when is the next interview? How do you guys prepare? What do you expect out of it? Take us to that one.
It’s interesting, because [the first interview] was mid-January 2008, 13th maybe. Fast-forward to mid-February, 14th maybe, of 2008. And in that interim, we really carefully reviewed everything that he had said. We also had been working with a forensic psychiatrist. We said, “Here are our concerns,” and we started working with him, actually when we conducted the search warrant on Dr. Ivins’ house back in the fall of 2007, because we had some concerns about his mental health, and we wanted to be sure that we approached him the right way for safety reasons. We also then began working with a forensic psychiatrist to help us develop the tone of the questions, how far to push and that sort of thing.
The next interview was going to be a tougher interview. The first interview was just sitting around a conference table. Everything was easy, relaxed, very casual conversation. And the second interview, we wanted to push a little bit more and see what kind of answers to get. So we confronted him with certain things that we had not in the past.
There was a diagram that he had drawn in the very early stages of the investigation, January 2002, … this very convoluted diagram to show he made very pure spores, Bruce Ivins did, by his manner of culturing the initial spores, the initial Ames slant that he had in his collection at USAMRIID, whereas other microbiologists, other researchers, would do serial passaging. They would take a mix, and they would take from that mix and take from that mix. He himself did a single colony pick, which was a way to keep your spore collection pure. That’s the basics.
So he had drawn this diagram, which one might perceive as to be misleading of the investigation, that he had given investigators in January 2002. And we confronted him with that. We said, “Dr. Ivins, what is this?” And he says, “That’s a diagram.” “What is this a diagram of?” “It looks like microbiologists and spore collections.”
It was really like pulling teeth. And he’d say, “Did I draw that?” “Yes.” “When did I draw that?” “That’s not important. Just tell us, what did you mean by this?”
And his reaction when we confronted him was very different, again, from his reaction to, “Tell us about your obsession with Kappa Kappa Gamma.” The interview itself was more confrontational, and not rude, but just more direct, shall we say, and his answers were much more hedging and taking a step back and wanting to know more from us about why we were interested in that sort of thing.
Why were you interested in that? How was it misleading?
… I have the diagram here he drew. He’s basically saying: “Don’t look at me. Don’t look at my stuff. I’ve got pure spores. The spores that were in the letters have these mutations in them. I now know there were these other imperfections in them. So look at these guys.” And he drew these arrows with names of people who, in his view, grew spores that way.
Honestly, what we wanted to know was, was this misleading, and what were you trying to say here? We couldn’t get a straight answer out of him about what he was trying to accomplish and what he actually meant in that diagram. That was significant to us.
And he’s naming other people to look at?
He’s naming other people.
Why is that significant?
I think over the course of the investigation, from the fall of 2001 until the summer of 2008, the first conversation anybody ever had with him to the last conversation that we had with him in mid-June of 2008, he was pointing the finger at all sorts of people within USAMRIID who he said he thought had the ability and the motives to have mailed the spores — from his closest friends at USAMRIID to his nemeses at USAMRIID to his bosses at USAMRIID to people who had nowhere near the skill set that he did. He absolutely pointed in every other direction.
But his lawyer says he’s only trying to be helpful. He’s only naming other people that have access to the material. That’s what you guys asked him for, and that’s what he was giving to you.
And if I were his lawyer, that’s exactly what I would say, but that doesn’t make it true.
And I think that’s important to keep that in mind, is that just as people can confess, if that’s their want, they can also mislead.
It’s our job to sort of cut through all the statements that somebody makes and try to figure out is this true, is this not true? And if you have misdirection piled on misdirection piled on misdirection, that is significant, … and that is evidence that can be used at trial to be able to say: “He said X, and then he said this, and then he said this. And this is all misleading to the investigation.” …
How is he reacting now? Has he changed his demeanor?
He certainly, in that meeting, he changes demeanor. … His reaction certainly was much more circumspect and much more questioning of us. And I will say that we walked out of that second meeting, and the reaction from his attorneys was very different than it was coming out of the first meeting. And that was the last on-the-record interview we had with him, I think probably for that reason.
So the submissions are talked about?
So let’s talk about the submissions. … How important to the investigation was the question about his first and second submission?
I think it’s extraordinarily significant. I mean, look at it this way: You have material that is sent initially to the repository that is identical to the material in the flask that we believe to be the murder weapon at this point, matches on four different points. So to sort of drill it down, say there are four corners, and this sample over here that he submitted initially matches on all four corners.
Fast-forward two months, the submission over here matches on no corners. So the question is, if they’re both derived from the same flask that has all four corners in it, how could this be?
And it’s also important to know that he didn’t miss it once; he submitted two samples the second time. So it missed all four corners, and it missed all four corners. That’s extraordinarily unlikely. …
So the question becomes then why? This is an act of deception, as we would have argued in court. This was the ultimate act of deception, to mislead and misdirect the investigation. If the whole point of the repository is to try to pinpoint who has material that matches the murder weapon, and you send something that is supposed to be from the murder weapon but you send something that doesn’t match, that’s the ultimate act of deception. That’s why it’s so important.
So let’s delve into this a little bit. His first submission is February. Why does he submit something? …
Sure. So what happens is, because Dr. Ivins was this extraordinarily experienced, skilled microbiologist, he actually was the custodian of the original slant of Ames, the original slant of material taken in 1981 from Sarita, Texas, and shipped to USAMRIID. …
Because he had the original sample, he got the subpoena protocol. It was a carefully drafted subpoena protocol describing how to take the sample to keep it pure and send it on these Remel commercial slants to the repository. The repository stayed in Maryland, and two identical slants would go out to Paul Keim out in Northern Arizona [University] because he was doing strain typing, which just means confirming everything that’s in the repository is actually Ames and not Sterne or some other strain.
So that’s what he does Feb. 27, 2002. And we know this, that he was doing it that way, because we have the contemporaneous notes of Scott Decker, who was one of the scientists at the FBI who was consulting with people when they were initially taking a look at the subpoenas, answering questions. He has notes and a phone log saying, “Feb. 27, 2002, Bruce Ivins, USAMRIID, will prepare slants per subpoena today.” So he sends those off.
Fast-forward to April, I think 10, of 2002. Dr. Ivins, I think mid-March, was told that actually what he had submitted in February was not prepared on the appropriate slant. So he didn’t use the commercial material; he used his own preparation, and he had to redo the slants, and so in [April] of 2002, he resubmitted.
So what happened to the February stuff?
… Because he submitted it on the wrong material, the FBI repository, they rejected it. They said, “Please resubmit.” And he had been told that sometime in late March or early April of 2002.
And the FBI destroys it?
FBI destroys it. Paul Keim keeps his samples, which, fast-forward, it becomes significant later. The FBI, though, the repository destroys it. There’s no real reason to hang onto it. “Just send us the stuff again.” At this point, he’s not a suspect of anything. Just, “Please can you redo it?”
And when we were focusing and drilling down in the spring of 2008 on the significance of what we considered to be false submission to the repository, we wanted to know what happened between February, when he clearly sent material from 1029 to the repository, and April, when he sent [what] was we believe to be a false submission. …
In the spring of 2008, as we began to really discuss and think about this, Scott Stanley, who was again one of the initial FBI scientists on the case, pulled his notebook from back in 2002, and he, reviewing this — and I’ll never forget; I was actually with the squad at the time, and they said, “Rach, you’ve got to come in here and see this.” He pulled out his notes of a meeting I think on March 29, 2002, where it was a meeting with Dr. Ivins, a number of other folks from USAMRIID, Pat Worsham and some of the other people who were pretty intensely working with the FBI investigators on the case. He [Stanley] was just taking contemporaneous notes about what was told to these microbiologists who were sitting at the table. He in fact drew an oval-shaped conference table and wrote who sat where around the table.
And he describes what Pat Worsham told all the other assembled microbiologists: … Don’t use a single-colony pick. In other words, don’t take one pure spore, but take a full swipe across the plate. And the reason for this meeting was to say: We want to capture all the mutations. We want to capture all the imperfections, because we’re trying to figure out, can we get basically a genetic fingerprint out of this?
That is one of those moments where it’s telling the culprit: “Here’s what we’re going for. We’re not sure we can do it.” And at that point in March of 2002, it was still, I think by many accounts, a long shot to actually be able to find the genetic fingerprint. But he now knew that’s what we were looking for. So the trigger at that point is, don’t send the right material; otherwise they will draw that connection. You will hit on all four corners; you’ll match. …
… [Ivins' attorney] Paul Kemp said that Ivins explained repeatedly why he picked out the spores, that he says there were no written instructions, and he also claims that he was not at the March meeting. What’s your response? …
… We know that he was at the meeting based on interviews with other people who were at that meeting and contemporaneous notes from an FBI scientist that show where Dr. Ivins sat, an oval table, specifically where he sat. And the specific notation was, “Swipe across plate, not colony pick.” That’s a quote from the notes themselves. That’s clear evidence that he was at that meeting.
Second, Dr. Ivins never told us that he wasn’t at that meeting. So to the extent that people are claiming now that he says he wasn’t there, he certainly never told us that.
Third, I would say that Dr. Ivins was not capable of giving us a consistent story about whether and how he prepared the April 10, 2002, submission. He told us varying stories over time about whether or not he even prepared the sample at all. “It must have been my lab tech. It must have been somebody else.” When confronted with the fact that he, in fact, handed in the submissions to the repository, there are records of that; that it’s his handwriting on the labels. He said, “Well, if I did prepare it, I don’t remember how I prepared those samples.”
And it’s also important to keep in mind that the interviews that happened in the spring of 2008, there were a number of times that Dr. Ivins was questioned prior to that by other FBI investigators about how that sample was submitted, because this was a big mystery to us. So there was an evolution of his responses over time that perhaps his attorneys in 2008 were not aware of the complete evolution of his story prior to that about whether or not he prepared the sample at all. If so, did he do it the right way? He wasn’t sure about all those processes.
Finally, with respect to whether or not he had the subpoena instructions, the protocol we call it, the six- or eight-point specific instructions about how it is to go about preparing these samples, we know from, again, another FBI scientist’s contemporaneous notes with a phone conversation with Dr. Ivins on Feb. 27 of 2002, prior to his submission of the first sample, Dr. Ivins said to this scientist that he was going to prepare the samples per subpoena today. In other words, clearly, again, it’s a contemporaneous record, something that we could have relied on, again, at trial. Past recollection recorded is the rule of evidence that says you can use this to demonstrate that this actually happened, that he said these words.
… Why was this whole question of the second submission such an important part of the case?
The question of the second submission and why it was so critical to what I think would have been our proof at trial — and certainly to our feelings about his guilt — was that it’s an utterly inexplicable result. … If you’re taking a representative sample of this culture, it’s next to impossible to miss all four mutations. This is the only sample allegedly from 1029 that missed all four mutations. I think there might have been one that had three of the four, but this is the only one that missed all four mutations.
And it didn’t just do it once. It missed all four mutations twice. So that’s an exponentially nearly impossible result, I think is how I would put it. …
So either he submitted something else, or he deliberately did this single-colony-pick method to pull out one pure spore so that you couldn’t find the mutations. And if you can’t see the mutations, it doesn’t lead back to the murder weapon. And that is why it’s so significant. That’s why it’s such compelling evidence of a guilty conscience. …
We talked already about the suspicious behavior of late-night activity. How did he describe his activities around that period of time? What were the answers that he gave [as] to why he was there?
Dr. Ivins was asked on a number of occasions by a number of different questioners: “Talk to us about this. Tell us about this unusual spike in late-night and weekend lab hours right before each of the two mailings. Never before, never again. Talk to us. What was going on?”
And he gave a number of answers: “I don’t know. I was sort of going through a rough time. I used to go to the lab to get away.” And then sometimes, once or twice, it was, “I went into the lab to get away from this particular security guard who I didn’t like. So I didn’t just retreat to my office, but I went all the way into the hot suites,” which is quite a process to get in there. You have to go through showering and all sorts of protective measures to get in there. …
So then we went back, and we pulled all of the card key records to see was the security guard ever there. And there was, I think, one time where the security guard was in the same half of the building at the same time that Dr. Ivins was during those times. So not only was he giving us answers that didn’t make sense, they were internally inconsistent, and inconsistent with other statements that he had made about that. …
And finally, ultimately, I think in one of the interviews, he conceded, “I don’t have a good reason.” And that, again, it’s a statement that you can use at trial to prove this point. Not only are these hours unusual, Dr. Ivins himself gave a number of inconsistent reasons why he was in there and ultimately said, “You know, I don’t have a good answer for that.”
We might argue it’s a long time ago. It’s hard for me to remember what happened last week. The lawyers and others point to the fact that there was a calendar of these animal experiments that were ongoing, that he had reason to be checking in with the animals. Maybe he stayed in longer than [usual]. There’s also the argument that if you look at other points in his career, he tended to work late at night or odd hours. The response to that?
… We can demonstrate through records over the course of a five-year period, never once before and never once after did he spend anywhere near the amount of time in the lab. And honestly, people say, “Bruce is in the lab all the time at night.” Well, if you actually take a look at the lab access records, that’s not true. He may have said that he was, he may have been in his office late at night sometimes, but he was never actually in the lab for anywhere near the number of hours.
For example, from January through August of 2001, I think he spent something like eight or 10 hours in the lab alone at nights or on weekends. And then you start looking at mid-August, and he’s spending 20, 30 hours during the week overtime in the lab. And again, in the ramp-up to each of the two mailings, it’s extraordinary, the number of hours that he spent — three hours at a time, four hours at a time, 9:00 to midnight, that sort of thing.
And to the point some people suggest that he did have good reason to be in there, that there were animal challenges going on and somebody has to go in and evaluate the animals to see how they’re doing in response to their vaccinations and being exposed to anthrax, if you look at his lab notebooks, there absolutely are notations here and there about his going in to check on certain animals. And it would justify 20, 30 minutes in the lab, maybe an hour at most. But he’s spending something like two hours and 45 minutes, two hours and 45 minutes, two hours and 45 minutes, each night leading up to the mailings.
And again, that’s the beauty of physical evidence and laboratory notebooks. It’s a great thing about scientists: They record everything. …
… How do you guys learn about [the unauthorized lab cleanings]? And why do red flags go up?
… In terms of why it’s significant to me as a prosecutor, it shows that he’s testing for and then cleaning up what he believes to be anthrax exposure in his office that he shared with two other people.
And again, consistent with so many other aspects of the case, … the reasons that he gave for doing what he did are utterly inconsistent with what he did. So, for example, he claimed that … he was worried that [a lab technician] had contaminated the offices. He was worried that she had tracked spores on her person into the office that he shared with her.
So he sampled it because he wanted to be sure that that wasn’t the case. And lo and behold, he claims he found traces of anthrax on her keyboard and her desk and the top of a filing cabinet maybe. What he said he did was he then cleaned it up.
But if you’re worried about a colleague who you think has somehow managed to track anthrax on her person into that office, wouldn’t the natural reaction be to go tell that colleague: “Look, I found anthrax, live anthrax, virulent anthrax on your desk. You should be careful. You should be sure you scrub up, and worry about people at home, tracking it home”?
He did none of this. He sampled, he cleaned, and he remained silent about it. His claimed reasons for doing so are utterly inconsistent with the actions that he took, and I think that’s significant.
So if the answers were inconsistent for why he did it, why did he do it? It is within two and a half months of the mailings themselves. Is he concerned that maybe when he brought the letters out, you know, loading the letters inside the hot suites in the lab, brings them out in his office, and then heads off to do the mailing? Again, it’s speculation. Can I tell you that’s exactly what was going on in his mind? You can’t. But that certainly would make sense as to why somebody would go back and say, “Hmm, I wonder if this is a problem; I’m going to check for it.”
Again, it’s but one piece. I do think it’s important to point out — and maybe I haven’t done such a good job over the course of this — but the case against Dr. Ivins, it’s not one facet. This is a multifaceted, multifactorial kind of case. In so many cases, so many trials that we bring, it’s not just one smoking gun. …
It’s not just the science. It’s not just strange behavior on the part of Dr. Ivins. It’s not just an obsession or two. It’s not just the mailbox. It’s not just statements that he made over and over and over again that don’t make sense. It’s not just statements that are misleading. … It’s the confluence of all these things taken together. That’s the compelling evidence.
And only when you take a step back and you look at all the evidence taken together can you realize that this is the right person.
But those who would play on the other side and those who defend him sort of say, “But it’s all circumstantial evidence.”
The question of circumstantial evidence has come up many times, and I would say a couple of things. One, a large component of the evidence in his case is direct evidence, and that’s the scientific evidence that all points to RMR-1029. That’s direct physical evidence.
A second, very compelling type of proof in this case is the statements of Dr. Ivins. Statements of the defendant are direct evidence. … Many, many, many statements that Dr. Ivins made to us confirm certain points for us. There’s a direct evidence that would have been used against him.
And third, I would say significantly about direct versus circumstantial evidence, the jury instructions nationwide say the law does not make a distinction between direct and circumstantial evidence. Both carry equal weight.
So this notion that there’s no smoking gun, that there is no videotape of him mailing the envelopes, I can assure you that trials are happening right now in courthouses across this country that are based largely on circumstantial evidence. And convictions are coming down across this country every day without an eyewitness and a confession and a videotape. …
One of the things that sticks in the craw of a lot of people who defend him to this day is the fact that why were no spores found in the searches of his home, his car, in his home, on his clothing, in his lab? Were any 1029 spores ever found? … Is that significant? Is it not?
It’s not significant. The fact that no spores were ever found on his kitchen counter are wholly insignificant to this case. And I’ll tell you why.
If you think about it, Dr. Ivins worked with RMR-1029 and Bacillus anthracis in general every day of his life, five days a week for 20-something years. So the fact that no spores from the mailings were found in his house is utterly irrelevant. No spores from any of his work over the course of 20-something years were ever found in his house. It means that he was largely very careful with what he did, and for good reason. …
But they will argue they were working with wet [anthrax]; this is dry. This would have had to be milled. It would have to be in the equipment. If the spores weren’t there, then DNA evidence would have been there. …
I think DNA evidence, it’s a completely different issue. The question is, why were no dried spores clinging to his cardigan sweater when he went home and had lunch? I think the answer to that was he was careful, and he was really good at what he did. So if you take a letter loaded with anthrax spores out of a laboratory, there are certain processes in place to do that. Anytime you’re going to move anthrax, wet or dry, they have bagging and double-bagging and putting it in cans through airlocks and through these other pieces of equipment to make sure that nothing is escaping, whether it’s wet or it’s dry. I think it’s misdirection itself to suggest that these circumstances are different.
I would also say, again to the point of this is somebody who has no experience in drying material, it is completely belied by the facts. The fact is that Dr. Ivins did have extensive experience in drying Bacillus material, whether or not it’s anthrax or some other Bacillus. He had a lyophilizer, which is large piece of laboratory equipment. It’s drying equipment. And this is significant [because] again, it goes back to the number of statements that Dr. Ivins made, … which is his initial claims he has no idea how to dry material, Bacillus of any kind. This was a statement made in the fall of 2001 maybe, or early 2002: no experience in drying.
Well, if you fast-forward to investigating these claims, there is this drying machine, the lyophilizer. Not only does he know how to use it, it says “Property of Bruce Ivins” on the lyophilizer. He ordered it. We have e-mails that show him sort of speaking to the officials at USAMRIID, [saying], “This is why we need it.” We have e-mails between him and other anthrax researchers where they say: “Hey, I’m trying to figure out how to use the lyophilizer. Can you help me out?” And we have an e-mail saying: “Sure, come by anytime. I’ll show you how to use it.”
He wrote the instructions that go with this machine. So this all is clear, direct evidence that Dr. Ivins in fact did know how to dry materials. Notwithstanding what people say, there’s proof that he did.
And again, when confronted with all these facts, and we confronted Dr. Ivins — you know, “I don’t know how to dry material.” “Well, but you have this lyophilizer.” “Yeah, but I don’t really know how to use it.” “Well, we’ve got this e-mail that shows you went to training on how to use it, and here you say in the e-mail, ‘This is really great training.’” Over and over again you confront him with these facts that he has to sort of step away from. …
You talk to some of the people at USAMRIID who were friends of his, former bosses of his, and they say, “Didn’t have the time to do it, didn’t have the experience to do it, didn’t have the equipment to do it.”
When people say that Dr. Ivins didn’t have the time or the ability or the equipment to create the spores that were used in the mailings, I’d say a couple of things.
First, consider the source. These are people, by and large, if you’re talking about folks at USAMRIID who supervised him, for example, they have an inherent bias to say there’s no way that anybody could have done it in our lab at this time. So that’s one.
There’s ongoing litigation where USAMRIID is being sued over what happened, so it’s certainly in their interest to not say, “Yes, we think someone here had the capability.” …
[Ivins'] reputation throughout that microbiology community is one of the best of the best. We asked a senior microbiologist at another institution, “Can you name some people you think could have done this, based on the extraordinary quality of these spores?” He named Dr. Ivins and a handful of others. And he said, “There’s probably another half dozen out there who I don’t know who could do it.” … Leave aside what some interested parties might say, and look at the facts, and the facts are clear that he absolutely had the skill set to do it.
Second, USAMRIID has that capability or the type of equipment necessary. Look no further than what Dr. Ivins himself has said. Dr. Ivins has said, “This guy at USAMRIID, that guy at USAMRIID, this woman at USAMRIID, that woman at USAMRIID, these two other guys at USAMRIID — I think they did it.” He never said, “We couldn’t have done it.” He’s clearly implicit in his own statement, “We certainly have the equipment to do it at USAMRIID.”
Finally, I think with respect to time, whether or not he had enough time, there are a couple of answers to that.
I think it was Bill Patrick, who is one of the world-renowned anthrax experts who was recently deceased, his best estimate was it would have taken a week, a week and a half, something like that, to grow the quantity of spores that was necessary to be used in the mailings. Look, it is not an exact science, and we weren’t in the lab; we don’t know how long it actually took. But when … the leading disinterested experts are saying it certainly could have been done in a few weeks’ time, that’s significant to us.
We also consulted with another very senior microbiology researcher at another institution who ran some numbers for us and said, “Look, I think it would take as few as” — I forget what it is now — “three or four days to as much as a week and a half,” whatever those numbers were. But he did the calculations. …
Finally, on whether or not he had the time to do it, there’s also this issue of vast quantities of unaccounted spores in Dr. Ivins’ lab. He had lab technicians who all they knew is they were growing spores, growing spores, growing spores. They would put them in a bin, and Dr. Ivins would take them. They have no idea what they were going to be used for. They thought they were going to be used for this 1029, but the accounting was atrocious, so we have evidence, and we would have put on evidence at trial, two witnesses to say, “I was growing spores constantly.” And in terms of the tracking of those, we don’t know where those spores went.
So did he have already a rather large pool of spores at the ready that all he had to go into the lab during those few nights, those long nights ahead of time of each mailings, to do the purifying and the drying? That’s also quite consistent with what we know about his ability, the laboratory’s ability, and the quantity of spores that he had at hand.
… Why wasn’t he arrested? …
There are a couple of things that are important to keep in mind. One, before you charge someone with five counts of use of a weapon of mass destruction, … in fact, the WMD charges have to be certified by the attorney general of the United States. …
Before that, a lot of meeting has to happen. I mean, this sounds rather bureaucratic, but it’s in fact true that I personally started writing the prosecution memo that would precede any indictment of this kind, really almost any indictment. I started drafting that I think in March of 2008. … At the time that Dr. Ivins unfortunately committed suicide, the final draft of the prosecution memo had just been delivered to the U.S. attorney here for review, and that is where we were in the process. …
It is a careful process. And in any case, you want to be sure that you’re getting it exactly right and that you thought through all the defenses and that you’re ready to go. In a case of this magnitude, intrinsically there’s inherently more time that’s built into that schedule.
I will say that over the course of the summer of 2008, we were getting increasingly concerned about Dr. Ivins’ mental health. And there were absolutely conversations about, “Is there a way to accelerate this arresting him because of our concerns about his own safety, and frankly concern about safety of our witnesses?” And there was this short period of time that he was institutionalized, as everyone knows. So that sort of gave us a little breathing room. We knew he was safe; we knew we were all safe. And within two days of his being released from the hospital, he took his own life. …
How do you hear of the suicide? What do you think? What does it do to the case?
I think while it was very difficult for us to process and to realize that we weren’t going to be able to try this case, and that we couldn’t present all the evidence, and we couldn’t bring closure to the victims in a way that we really had hoped to be able to do at trial, before we get to that, I think the most important thing is, it doesn’t really matter how we felt. It matters how his family felt and how his friends felt and how his colleagues felt. It is a tragedy all around. So you have to separate your own personal concerns about your case … from the very real human impact of this, which is, it’s a huge tragedy.
I had met Dr. Ivins, so it was extraordinarily difficult for me on a purely base human level when someone that you have met, someone that you know, something that you know so much about has taken his own life. …
And obviously we all have seen how this has developed. We would have welcomed the trial. That’s what we had hoped to be able to do, to be able to present all the evidence in court. He had one of the best lawyers I’ve ever worked with, so he certainly would have been ably represented. And that was the hope; it was to be able to try the case.
But I think really at base, it’s a tragedy on every level. …
Let’s just cover a couple other events that took place. July 9, 2008, is the therapy session. … What takes place?
We know that he has had some increasing mental health difficulties through the spring and early summer of 2008. He’s been talking about that with sources of ours. He’s been talking about that through his lawyers to us. I’ve already had a conversation with his lawyer about expressing my concerns about how he was doing. … So we knew that he was having some struggles, and the struggles weren’t getting any better.
The Frederick police called the local FBI office to say: “We’ve got this information about these threats in the therapy session, and the guy says he’s a suspect in the anthrax case, so we thought we’d call the FBI.” And so they of course call our squad. So that’s how that unfolded in terms of what happened. We did not play any part in Dr. Ivins being pulled out of USAMRIID and taken to the hospital. That wasn’t our thing. That was the local police department’s obligation and their decision to do that. …
At the time that we learn that Dr. Ivins had made threats that we perceive to be threats to witnesses in the investigation, this becomes a very serious endeavor. And he says he has a list of people he wants to kill. And he goes through this whole litany of statements about wanting to kill people and himself wanting to go out in a blaze of glory. And at that point we say, OK, leaving aside whatever Frederick police are going to do, we need to try to find this list of people he wants to kill, because we have, one, an obligation to protect the public, protect our witnesses, and two, we want to see where is his mind at.
So we conducted search warrants of his home and his cars. We follow on search warrants at the end. That was significant from a protective standpoint. In order to do that, we had to conduct some preliminary interviews with his therapist to find out: “He said this to you. Did he mention who it was? Give us more details of who these people are so we can try to protect them.”
So we did know at that point. We learned very basic information about what he had said, only enough to conduct our search warrants and try to figure out other people that we should be protecting. …
The NAS [National Academy of Sciences'] report comes out [and says] that the science was not as clear-cut as it seemed to be in the press conference. … Does it open up the question, because science was such an important part of the investigation?
What I will say about the NAS report is that it was obviously a painstaking report. There were a lot of perspectives that were brought by various panel members to various aspects of the case, various aspects of the science of the case. …
It’s one thing to say sort of in the purely scientific world … we might have done this or we might have done that, … but it’s a separate issue about how such evidence is used in court. It’s one thing to spend all this money and all this time running down the science. … In terms of what resources we expended, we focused on other aspects of it because we had enough, we thought, to prove in court.
Similarly with respect to the genetics. We were confident, based on a number of experts who had reviewed the scientific results, that we would have been able to prove to the standard in federal court to a reasonable degree of scientific certainty that RMR-1029 was the parent material.
And again, it’s so important to emphasize that the science, absolutely significant, it absolutely helped us focus our investigation and inform a lot of what we did in our thought processes. … But it’s just one piece of a much bigger picture. And that is what I think is lost on some people when you look at just the language of the NAS report itself. …
[Editor's Note: The following part of the interview was conducted on Sept. 29, 2011. The interview was to ask Lieber about some of the evidence uncovered in our investigation.]
So let’s talk about this question of whether Ivins could have made the anthrax at USAMRIID. [Documents from in a civil court case filed on behalf of Robert Stevens' family] seems to suggest, in the initial filings, that it would have taken special expertise and experiments to make dried-material quality used in the attacks. Your point of view about the civil case and this question of what it says about the fact of could Ivins have actually had the equipment, could he have done this work in the labs that you guys had looked at? …
To be clear about the civil case, what folks need to keep in mind is, there was one erroneous statement in several hundred pages of pleadings that were filed that day. And, as we explained in a letter to Sen. [Chuck] Grassley [R-Iowa] in response to his inquiries to the attorney general and [FBI] Director Mueller, that statement, there was one error.
But if you read all the full pleadings that day, you’ll see that over 15 times, the civil division asserted Dr. Ivins was responsible for the mailings. So there was never this conflict that became quite a media storm. Really, there was nothing there. …
We talked to several of the people that were his bosses and worked with him at USAMRIID. They have very strong opinions about whether, in fact, he could have produced this stuff. … In the filings and the many documents that have been released, there’s testimonies from Pat Worsham, for instance, and [Stephen] Little about their feelings about the impossibility of making the anthrax in the labs. … What’s your take on their argument that there was just no possibility that Ivins could have made this stuff in that lab at USAMRIID?
I think that they probably actually do believe that, that he couldn’t have. But our investigation shows strongly that that’s not the case. Dr. Ivins had access to all the equipment that he needed to grow the spores, the quantity that he needed, [to] harvest them, purify them, dry them and load the envelopes, all within USAMRIID, within Building 1425.
Frankly, within B-3, the suite where RMR-1029 was housed, there was a speed vacuum there within B-3, in close proximity to the 1029 flask. There were fermenters in there. … A fermenter is a way to grow a large quantity of spores in a very short period of time. We have e-mails from Dr. Ivins that show that he wanted to use fermenters to grow spores when he was actually creating 1029 back in 1997. There are shake flasks, another way to grow a large quantity of spores in a shorter period of time.
So these are all different ways within B-3, within the suite that was where Dr. Ivins worked, where 1029 was housed, where he was capable of growing a large quantity of spores.
In addition, there were just vial after vial after vial of Ames strain anthrax that the FBI discovered in Dr. Ivins’ walk-in refrigerator that were unaccounted for. So his ability to grow and house spores unbeknownst to other people clearly was there. …
I don’t blame his colleagues for suggesting, “Oh, it couldn’t have happened here.” Nobody wants to think it could have happened here on my watch; I was keeping an eye on him. I don’t blame them for feeling that way. But in fact, the evidence directly rebuts that, because FBI scientists, Dugway scientists did it. So the folks who have never tried, folks who don’t work with dried Bacillus, they can have their opinions. But in fact, our scientists did it. …
Do we have proof that he was in those rooms during that period of time? …
As you might hope, we did look for those records, and they don’t have card key access records that cover those periods of time. We did look for those. …
There’s four samples [from Ivins]. Three out of the four prove positive [for the morphs]. In front of a jury, or in front of an audience watching a television show, it seems to lessen the importance or the suspicions surrounding the second submission, no?
No, I think not. … This notion that this is somehow a big red flag that undercuts the entire investigation, I think, is a gross overstatement. Again, if you take a step back and you look at all of the evidence amassed — and I will say amassed against Dr. Ivins — these two samples that were no-hitters, double four negatives, were but one link of many that said to us that Dr. Ivins was trying to mislead this investigation. Why is he trying to mislead this investigation? It’s evidence of a guilty conscience.
So you can get into the weeds, and you can take little shots of each of these aspects of our vast mosaic of evidence against Dr. Ivins. That’s one way to do it. But if this were actually tried in court, the prosecution would stand up, and we would say: … “Ladies and gentlemen, the defense wants you up here, they want you looking at each of these tiny little weeds. … Take a step back, and you see the big picture. And, ladies and gentlemen, the big picture is, you have brick upon brick upon brick upon brick upon brick of a wall of evidence that demonstrates that Dr. Ivins was guilty of this offense.” …
Claire Fraser-Liggett says it’s consistent with having come from 1029, but that’s different from saying this material absolutely came from 1029. There probably should have been some more statistical analysis done, looking to see how frequently these kind of mutations arise when large preparations of Bacillus anthracis are grown up in fermenters. Your point of view on that?
Perhaps Dr. Liggett [doesn't] know the extent to which we tried to do statistical analysis. What are the odds that all four mutations could spontaneously appear in a separate culture collection? It wasn’t like this hadn’t occurred to the scientists. And, in fact, this was, again, the recommendation of what they called Red Teams of expert scientists worldwide, saying, “Look, here are some things we think you should do.”
One of the recommendations was: “Send all this to a top-flight statistician. Send all the information you have, and let’s try to really drill down on this.” …
Years and years were spent by statisticians looking at this very issue. And ultimately, in I think it was late spring/early summer of 2008, so May/June probably, 2008, they finally threw up their hands and said: “Look, we can’t give you something that we’re comfortable with, something that’s definitive enough, because there are just too many variables. There are too many unknowns.” …
So we did try. I’m confident Dr. Liggett doesn’t know the lengths to which the FBI attempted to get a statistical result. And I agree with her that it’s always helpful to have more information and not less. I think it is important for folks to understand that we kept the scientists separate from each other and separate from the investigators, and there’s a reason for that. It’s for the integrity of the investigation. We don’t want Dr. Liggett to know what any of these other professionals are doing, because we want her to focus on her project, completely unbiased, completely uninfluenced by anything else that’s happening in connection with the investigation.
But I guess the point is, doesn’t this, in some ways, undermine the case, to some extent, when the NAS is basically saying that 1029 is not necessarily the murder weapon?
But they’re not saying that RMR-1029 is not necessarily the murder weapon. They say that it’s suggestive that it is the murder weapon. … Scientists and mathematicians, they approach results and interpretation of results in a way that’s separate from the way that the rest of the world does, or certainly lawyers do, and the rules of evidence support.
So, again, 1029 is certainly a significant aspect of this case. There is no question about it. However, … it’s not just the science. We never said it was the science. It’s all of the evidence taken together that points to Dr. Ivins.
The NAS is bringing up a question that 1029 is even the murder weapon. Just respond to that point.
I don’t think it’s as equivocal as that. Frankly, it’s not. The media certainly, some of the blogosphere have portrayed it as them saying, “Gosh, we just don’t know.”
If you actually look at the language of the National Academy of Sciences’ report, they’re pretty strongly supportive of the scientific aspects of this case and what that demonstrates. They were never asked to opine about guilt or innocence. They were never exposed to the investigative materials. They were focusing, appropriately, on something in their wheelhouse, in their area of expertise, which is the science.
And absolutely, they raised good points. … That was the purpose of asking them to evaluate the science, right, so that God forbid this happens again, what are some lessons that we can learn? What are some things that we can do differently? …
We absolutely would have relied on the conclusions about 1029 in a court of law. There is no doubt in my mind that there would have been acceptable testimony by a federal judge, sitting in a federal courthouse here in Washington, that RMR-1029 was the parent. Would there have been cross-examination? Absolutely. But that is why we have rules of evidence. That’s why we try cases in court. …
Another thing that Claire Fraser-Liggett told us, just to follow up on finding the evidence, even if you don’t find the spores in the equipment, you would have DNA evidence. And what she said to us was, “I don’t know how you don’t find some DNA evidence in the end in equipment, if that’s where it was done.”
By the time that the scientific side of the investigation, Dr. Liggett’s extraordinary contributions to this investigation, by the time those were coming online, and the results were coming in that were pointing to USAMRIID in general, and maybe 1029, as that’s all developing, we’re now talking 2003, 2004, 2005, and looking for what kind of equipment and that sort of thing.
So by the time that we could even identify a piece of equipment to be swabbed, years had gone by. Those things had been cleaned numerous times. So this notion that someone could have stuck a Q-Tip up in there and found a scrap of 1029 DNA, I think is, with all due respect, it’s inconsistent with the reality of what was actually happening. …
People lose sight of the timeline. And it isn’t CSI. We don’t have 52 minutes plus commercials to solve this whodunit. It is a timeline that’s many, many years. …
The issue of the late nights in the lab, … there is documentation about what he was doing in those hours. It wasn’t unusual for him to work late normally, not always in the B-3, but in his offices themselves. And here he has four experiments going on at this point. That brings into question how suspicious the late-night activity really was. Your comment on that?
… There are no notebook records that suggest that there is any reason why Dr. Ivins had a scientific reason to be in the lab for those lengthy late-night hours, solo in the lab, leading up to the first mailings. So take that whole piece out of it.
And we’re going to focus on the time before the second mailings. Now, yes — and to be clear, we did note this in our investigative summary that there were a handful of occasions that Dr. Ivins was in there and made notations in the laboratory notebooks. The emphasis here is that laboratory notebooks are basically the holy grail, right, for scientists, as they should be.
And if you carefully review the laboratory notebooks and the notations that Dr. Ivins made, these were, first of all, not his experiments. He was helping other people. The notations that he made on those handful of occasions, at the critical hour, is not over the course of three days, but we’re talking about those few hours of time here, you know, two or three hours here, two or three hours the next night, two or three hours the next night. Those notations in no way justified the length of time, the two and a half, three hours he was spending each of those times. …
He was helpful to his colleagues. He did check on people’s experiments. But if you look at these windows and the vast amount of time, this says nothing to me that in any way undercuts that.
One of the things about this first series of envelopes is that, when you look at it closely, yes, in September, he spent a lot of hours. But it was 33 hours of that time were before 9/11. There were only eight hours after 9/11 before the letters were sent.
The three nights leading up to the first postmark.
What does that say? I mean, I thought the focus was this was something that he concocted after 9/11.
… There are going to be aspects of any crime that you cannot fully understand.
Did Dr. Ivins have a quantity of spores at the ready prior to 9/11? And was 9/11 sort of a triggering event for him, that the time was there, he was stressed out about the vaccine failing? You know, the walls were closing in, and 9/11 is his sort of foil, is his excuse to dry and mail? Maybe. Did he ferment and grow enough spores for the first mailing after 9/11 and in that however-many-day window between 9/11 and the mailings? Maybe. We just don’t know. He certainly had the time to do it. As our experiments with the FBI scientists and the Dugway scientists proved, he had the time to do it. …
[FBI consulting psychiatrist Gregory] Saathoff, who we also talked to, says he warned the investigators previously that this guy was a suicidal risk. His friends that we talked to talk about the pressure that the investigation had on him, that then he has the March 2008 clear breakdown, attempted suicide. The evidence that you have, that you talk about, is in hand at this point. The question becomes, why not arrest this guy because [of] his questionable state of emotional situation? [Some suggest] that the reason he wasn’t arrested was because there was an attempt to break him. The pressure was there to get an admission, because an admission was needed to tie this case up with a nice little bow. What’s your take on that point?
My take on that point is that Dr. Ivins’ death, along with the deaths of the five people and the injuries to the number of other people, and, of course, the anthrax attacks, was a tragedy. And we did everything within our power and within the confines of the Fourth Amendment and the rule of law to protect the community and to protect Dr. Ivins from himself. …
I called his lawyer to say, “I have inside USAMRIID source reporting, people telling me he’s behaving erratically,” which puts those people at risk because of the actual facts that I revealed to his lawyer about things that he was doing insane, revealed the identity of who that source was. But I thought it important enough to contact someone who had some sort of control over Dr. Ivins to say, “Please check on him, because we have our concerns.”
He was then admitted to a hospital. When we heard 10 days later that the medical professionals — who their degree is in psychology, and mine is not — made the determination that Dr. Ivins was not a danger to himself and others, we thought, based on investigative materials that we had, that that might not be correct. We called the hospital; we offered to provide that information to them. They released him anyway.
So this notion that, in any way, we were trying to put pressure on Dr. Ivins, that we were trying to harm him mentally, is, one, offensive, and two, completely undercut by the actual record. …
And Paul Kemp, his lawyer, a man I respect greatly, came out and made a statement that we did what we could to try to help him, that we reached out, because we were concerned about his mental health and his safety — and frankly, the safety of other people. …
Nobody, aside from his family and his friends, I think took what happened in late July of 2008 as hard as the investigative team did, because what we were hoping to do was give Dr. Ivins his day in court, not to be trying this case on FRONTLINE. That was never the goal of what we tried to do; [what we tried to do] was protect Dr. Ivins, protect the community and proceed under the rule of law. …
And your thoughts on how a jury would have evaluated the evidence that you would have provided them? And your thoughts on what the conclusion they would have come to would be?
I think that, as we tell all of our witnesses, as we tell all of our victims in every case I’ve ever tried, you can never guarantee any outcome of any criminal trial. You can’t. So I couldn’t sit here and tell you I’m 100 percent certain that any juror in their right mind would have convicted. No prosecutor can say that. Nor can any defense lawyer say, “They absolutely would have acquitted.” If they do that then, you know, I think that’s dishonest.
However, again, just seeing all this play out in the years since Dr. Ivins’ death, and seeing the claims by his biggest defenders and what they point to as their “evidence” that he didn’t do it, I think if that’s the best that a defense could have come up with, I am confident that we would have convicted Dr. Ivins. …
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