Correction:
An earlier version of this article failed to mention that a joint report by McClatchy newspapers, PBS’s “Frontline” and ProPublica first disclosed the court documents in the Florida anthrax death case. This version includes that information.
The Justice Department initiated settlement discussions in August, about a month after filing its controversial motions, according to people familiar with the discussions. The settlement, finalized Nov. 28, paid $2.5 million to the Stevens family.
Federal officials denied any relationship between their filings and the settlement and characterized it as a victory, since the family initially sought $50 million and the government did not admit liability.
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Before the settlement, Schuler questioned under oath several scientists whom the government had put on a list of witnesses for the civil trial. In their depositions, William Russell Byrne and Gerard P. Andrews, Ivins’s supervisors before and after the anthrax mailings, said they were virtually certain of his innocence.
Byrne said Ivins didn’t have the technical skill to make the extremely fine powder and both said the Fort Detrick lab’s equipment could not have dried the anthrax so it could be turned into powder without contaminating parts of the facility.
Prosecutors and FBI officials disputed the contentions of the two scientists, saying in interviews that they were biased because they supervised Ivins and could have missed signs of his guilt. Though Byrne and Andrews were listed as government witnesses in the civil case, officials said they would never have been certified by a judge as experts under the stricter rules in the criminal system, which does not allow speculation.
Vincent B. Lisi, assistant special agent in charge of the FBI’s Washington Field Office, said in an interview that Ivins, one of the nation’s most respected anthrax experts, “absolutely had the ability” to make the deadly spores and that experiments by FBI scientists showed there would have been no contamination.
Byrne and Andrews, in interviews, said they continued to believe Ivins was not the killer. “It is deeply insulting and slanderous to suggest that we were just kind of covering our butts,” said Byrne.
When Justice Department lawyers filed their July motions in the civil case, they wrote that the deadly powder would have required a certain amount of liquid anthrax — and the liquid content of anthrax created by Ivins and stored in a flask labeled RMR-1029 wasn’t nearly enough.
And though the department’s criminal side had said all other suspects were ruled out, the civil lawyers said portions of RMR-1029 had been sent before the attacks to Battelle, the Ohio-based lab. They raised a possible scenario in which the attack anthrax could have come from the anthrax at that lab or other labs to which Battelle may have transferred the spores.
Katy Delaney, a spokeswoman for Battelle, did not respond directly to the government filings, but said “the Stevens case against Battelle was dismissed and the [criminal] investigation of Battelle has been closed.”
Justice Department and FBI officials reiterated in interviews that they exhaustively investigated the 42 people at Battelle with access to the anthrax and ruled them out as suspects.
Four days after their disputed filings, Justice Department civil lawyers tried to file a “notice of errata,” and soon made a number of corrections and clarifications. In September, the civil lawyers filed a sworn FBI declaration with nearly 60 points reaffirming Ivins’s guilt.
Stephen A. Saltzburg, a law professor at George Washington University and former Justice Department official, said the department was right to pull the plug on the civil case but should have done so earlier.
“It would have been treacherous for them to litigate this, to answer all the questions their own pleadings raised,’’ he said. “In many ways, it was the government arguing against itself.’’
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