Effect Measure

Bioterrorism program victim

The US bioterrorism program has claimed another victim. Not from a lab accident. Not from an attack. But from a ridiculous and mindless application of regulations meant to protect us from malefactors but which have instead punished scientists who may (or may not) have made missteps in this new Alice-in-Wonderland that is the biodefense world. The latest tragedy involves A highly regarded geneticist, Robert Ferrell at the University of Pittsburgh, who has just pled guilty to failing to follow proper mailing procedures. The actual charge he pled guilty to was “mailing an injurious article”, although no injurious article was ever involved. Details, details. He pled guilty not because he thought he was guilty of a crime but because, as his daughter said, he was exhausted after fighting the more serious and even more absurd charges of mail fraud. This miscarriage of justice has been well covered by others, especially zootfloggin at DailyKos and my SciBling, Tara Smith at Aetiology. You should read their posts for the gory details.

Here is a snippet of Tara’s post, giving some background:

Dr. Ferrell’s story begins in 2004. Ferrell ordered two isolates of bacteria from the American Type Culture Collection (ATCC), a central repository for all types of biological samples. The species that Ferrell ordered were Bacillus subtilis, a soil bacterium sometimes used to model its pathogenic cousin, Bacillus anthracis, and Serratia marcescens, a ubiquitous bacterium that occasionally causes opportunistic infections. These species of bacteria are commonly used in high school and college microbiology labs because of their low pathogenicity. (Serratia is particularly nice because it produces a red pigment as it grows). Ferrell then mailed these to another professor and artist, Dr. Steven Kurtz of SUNY-Buffalo and founder of the Critical Art Ensemble (CAE). (Tara Smith, Aetiology)

Kurtz’s art exhibit was designed to raise awareness of what he believed were the hazards of genetically modified food. He ran afoul of the feds when Kurtz’s wife died of heart failure and the investigating officers saw the art exhibit and called the FBI. This was in 2004 as the Bush terror-propaganda machine was geared up for the elections. The story of what happened to Kurtz, as he was trying to bury his wife, is too sordid and too cruel to summarize. Better to go to Tara’s post. So what does this have to do with Ferrell?

Ferrell obtained the cultures for the two organisms from the American Type Culture Collection, a repository for microorganisms in culture. When I was in highschool I ordered Staph aureus from them for a science project and they sent it to me. Staph aureus is commonly found on human skin and nasal passages, but it is also a human pathogen. When I ordered it, 40 years ago, no one asked questions. But now there is a lot of paperwork, including a (routine) Material Transfer Agreement that says you’ll use the bugs only in your own laboratory. But Ferrell gave some of the two cultures from ATCC to Kurtz for his art exhibit.

As Tara points out, this would ordinarily have been a case between Ferrell and ATCC. But instead, using a broad and vague definition of mail and wire fraud that was a part of the just passed Patriot Act, the Bush feds charged both Kurtz and Ferrell with those crimes, felonies which under the law could have brought them 20 years in prison. Both men were vulnerable. Kurtz had just lost his wife. Ferrell was about to undergo marrow transplant for non-Hodgkin’s lymphoma.

Since the case started Ferrell has had two small and one major stroke. I don’t know Ferrell, but zootfloggin does, and here is his thumbnail sketch:

Who is Bob Ferrell? He’s the Chairman of the Department of Human Genetics at the University of Pittsburgh. A gentle man with a congenial Southern accent who wouldn’t hurt a fly–Drosophila excepted–who was suspected of terrorism. I’ve known Bob for several years and you will never meet a more unlikely villain. Not only is he a superb scientist, he is not afraid to bridge C.P. Snow’s two cultures by working with artists and anthropologists to apply molecular biology to their disciplines. A model scientist–all non-scientists wish the rest of us would be more like him. (zootfloggin Diary, Christmas, Wire-Fraud and the Click of Mussolini’s Boots-A Science Diary)

Enough said about this case. I think it speaks for itself. But I want to make an additional observation about one of the “injurious articles,” Serratia marcescens that Ferrell “shipped” (even though as far as I know he just handed it to Kurtz). Serratia is used in highschool biology labs. It can cause disease if sprayed in a weaponized form, but obviously Ferrell didn’t do this and had no intention of doing it. It is widely available and not hard to find in the environment. Ferrell got nailed for handing it to Kurtz.

But no one got nailed for this:

For six days in late September 1950, a small military vessel near San Francisco sprayed a huge cloud of serratia particles into the air while the weather favored dispersal.

Then the Army went looking to find out where it landed. Serratia is known for forming bright red colonies when a soil or water sample is streaked on a culture medium — a property that made it ideal for the bio-warfare experiment.

Army tests showed that the bacterial cloud had exposed hundreds of thousands of people in a broad swath of Bay Area communities including Sausalito, Albany, Berkeley, Oakland, San Leandro, San Francisco, Daly City and Colma, according to reports that later were declassified. Soon after the spraying, 11 people came down with hard-to-treat infections at the old Stanford University Hospital in San Francisco. By November, one man had died. Edward Nevin, 75, a retired Pacific Gas and Electric Co. worker recovering from a prostate operation, had succumbed to an infection with Serratia marcescens that attacked his heart valves.

The outbreak was so unusual that the Stanford doctors wrote it up for a medical journal. But the medics and Nevin’s relatives didn’t find out about the Army experiment for nearly 26 years, when a series of secret military experiments came to light. (San Francisco Chronicle)

There is no evidence the Army alerted health authorities before or after they conducted a mass exposure of a major American city. But Bob Ferrell? Throw the book at him.

Added note, Legal Defense Fund: I was remiss in not including the link to the Ferrell-Kurtz legal defense fund: CAE defense fund (PayPal).


  1. #1 Monado
    October 16, 2007

    That is a disgusting miscarriage of justice. And stress can kill.

    He should have been cautioned for breaking a regulation.

  2. #2 Abel Pharmboy
    October 16, 2007

    Amazing history lesson, revere, about the 1950 “experiment.”

    Everytime we are told not to worry about expanding domestic spying, etc., in the name of anti-terrorism, we are also assured that law-abiding citizens won’t be adversely affected. Well, this is a perfect case of where a bioterrorism-related law was taken way too far and well-beyond the original intention of the legislation. What a waste of resources to essentially terrorize a lovely man and scientific colleague.

    And should I be careful since I have Serratia growing in my bathtub????

  3. #3 revere
    October 16, 2007

    Abel: You’re OK as long as you use it in your own bathtub.

  4. #4 zootfloggin
    October 16, 2007

    Abel: And if you mail your bathtub to someone, you are a dead dogmeat burrito.

    Revere: You’ve done a marvelous job of laying out the basic facts of the case. Also, you’ve brought up the 1950s S. marcescens San Francisco biowarfare incident which I and others avoid mentioning because it tends to cloud the issues. But again you are absolutely right.

    S. marcescens can be a human pathogen and even rare cases of B. subtilis infection have been reported. Ironically, news reports of the prosecution state that Ferrell explicitly warned Kutz of the low but potential risk to immunocompromised persons and suggested safe handling. The prosecution also resorts to a shameful, lowest-common-denominator baiting by stating that B. subtilis has been used as a surrogate for anthrax in biowarfare testing (exactly the same reason why the Army sprayed S. marcescens over San Francisco).

    This is true but completely irrelevant unless you are trying to drum up irrational fear among the judge and jury, whom you assume have a miserable science education. In no case was the risk in the Ferrell or Kurtz incident greater than that faced by high school students who use this bacteria in their classes. The Kurtz-Ferrell episode is a clear case of malicious persecution and prosecution, driven by political exigencies, to dummy up sufficient fear in the American population. The Department of Justice affirms this by their own prosecution arguments. Are we still at Threat Level Orange?

    Aerosolizing these or any other living agents over a major metropolitan area is a bad idea.

  5. #5 revere
    October 16, 2007

    zoot: You did a real service by reminding us of this. Many of us knew about it at the time but it had faded. The army’s behavior I thought was relevant by way of contrast. It is very clear that what Ferrell did was essentially harmless and what the army did wasn’t. Even in 1950 they knew enough — no matter what they may have said later– to know this was a bad idea. And certainly — most certainly — in 2004 we knew enough to know that what Ferrell did was of no public health or clinical consequence. This was judicial cruelty without a shred of justice. It rolled smoothly along a political landscape grooved to maximize public fear and subservience. By that way of thinking the lives and careers of a couple of eggheads was of no particular account. It was shameful.

  6. #6 Kurt
    October 16, 2007

    I wonder who the prosecutor was that decided to pursue charges against Ferrell and Kurtz? There’s probably nothing that could be done about it at the moment, but certainly after the 2008 election, the individuals involved ought to be replaced.

  7. #7 Luna_the_cat
    October 17, 2007

    Is there any public, organised effort being made to help Ferrell? A legal defense fund? A health fund? A letter-writing campaign? If there is, can someone please share details?

  8. #8 revere
    October 17, 2007

    Luna: I was remiss in not including the link to the CAE defense fund (PayPal). I will update the post.

  9. #9 stu
    October 17, 2007


    “Kurtz’s art exhibit was designed to raise awareness of what he believed were the hazards of genetically modified food”

    Not too smart of a way to do this, IMO. Why did he use and Ferrell supply something that was federally regulated and bound to raise a stink when the details emerged about the exhibit? I have sympathy for those get singled out for unusual punishments when others get away scot-free, but you have to admit this was not the best judgement on their part. It is unfortunate for them, I hope they can get a break in this.

  10. #10 stu
    October 17, 2007

    What exactly set off the police and then the feds? I must not be seeing the whole story, I can’t get either one to pay attention to jack s**t if I have a problem with something.

  11. #11 trrll
    October 18, 2007

    The army also carried out similar experiments contaminating commuters in the NY Subways with b. subtilis

  12. #12 zootfloggin
    October 20, 2007

    Stu: For the record, the two bacterial agents are not regulated in any specific fashion since they are considered generally harmless marker bacteria for high school experiments, testing autoclaves, etc. It is important to be crystal clear about this: Neither bacteria is a biowarfare agent. One of the bacteria that Ferrell pleaded guilty to mailing as an “injurious article” is licensed to be sprayed onto cherries to prevent pest fungus < http://www.epa.gov/pesticides/biopesticides/ingredients/factsheets/factsheet_006479.htm>. This is also the agent that the prosecution claims is a model for anthrax in biowarfare experiments.

    The prosecution purposefully conflates this issue so to justify their prosecution. This is throwing dust in your eyes and it is the reason why I and others have not discussed it. Because these agents are generally harmless with minimal precautions, they can be easily used as models for more dangerous bacteria like anthrax or other vegetative bacteria by biowarfare scientists. Not that they are dangerous themselves, in fact, their utility is just the opposite. This is the reason for the incredibly dumb idea of spraying American cities with these ideas. If the risk of causing disease is 1 in a million, and you expose 1 million people to an aerosolized bacteria, well let’s put it this way: Not rocket science. This doesn’t mean that the risk is not vanishingly small but stupid people can easily amplify small risks into important problems. Remember the guy who liked to bounce off of windows in his skyscraper?

    Ferrell and Kurtz are not accused of violating any regulations related to health risks from these bacteria. When the prosecution’s case fell apart, they were then accused of fraud for violating the specific terms of a material transfer agreement (MTA)–a civil contract for $256 worth of bacteria–and using email and US mail.

    An MTA is almost exactly like a EULA for a thing (e.g., two samples of bacteria) instead of a computer program: You have probably violated similar terms of an End-User Licensing Agreement (EULA), for example by loading a program that you’ve bought on more than one computer in your home. I doubt that you ever read EULAs, almost no one does. But if you agree to one over the internet during registration and discuss it with your spouse by email for example (“Oh don’t worry, Honey, I’ll put my copy of Microsoft Office on your computer so you can get your report done”), you could be similarly prosecuted and sent to Jail for 20 years. That is the case in a nutshell.

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