Wanted: A Few Good Lawyers to Clean Up Science


August 27, 1991|By DANIEL S. GREENberg

Washington -- Why is the National Institutes of Health in marathon controversies over its handling of scientific misdeeds? The answer is surprising: Not enough lawyers.

The National Institutes of Health entrust fraud-busting to scientists, with only a limited role for lawyers, though fraud cases involve money, reputations and careers, all historically enmeshed legal protections. The scientists on fraud patrol have naively bungled procedural matters, causing derailment of some long-running cases. There are scoundrels out there in science, but scientists alone can't nab them.

An underlying cultural element is that many researchers shun the fratricidal task of investigating fellow researchers. The mandarins insist that science is purer than Ivory soap -- ''99.9999 percent of [scientific] reports are accurate and truthful,'' wrote the editor of vTC Science magazine. A Panglossian party line declares that exposure of dirty deeds is assured by the natural processes of scientific inquiry.

The Congress, however, is steeped in contrary experiences of human tendencies. Stirred by cases of sleaze in science that long endured before exposure, Rep. John Dingell, who chairs a key House committee, prodded the National Institutes of Health to play cop. The result was NIH's creation of the Office of Scientific Integrity (OSI) in March 1989, with a professional staff now numbering about 10 -- not a lawyer among them.

The head of OSI, Jules Hallum, a scientist who came out of retirement, earnestly explains that OSI follows ''the scientific model,'' not the ''legal model.'' In scientific disputes, he says, the resolution is in valid data. Does it exist? That's a question to be settled by scientists, not by lawyers, Mr. Hallum says. Nonetheless, scientists under OSI scrutiny are permitted counsel, and with about 70 cases in the mill, the Office of Scientific Integrity is deep in legal controversy.

For legal advice, OSI depends on the NIH legal counsel. But the National Institutes of Health -- an $8 billion-year-enterprise -- really don't have lawyers of their own. As part of the Department of Health and Human Services, NIH is served by attorneys from the Office of the General Counsel. They appear to be stretched thin.

In December 1990, the Office of Scientific Integrity's basic regulations were ruled invalid by a federal judge in Wisconsin for a stunningly dumb reason: contrary to administrative procedure, they had not been published in the Federal Register prior to adoption. OSI is appealing, but to be on the safe side, it published the regulations in June.

Mr. Hallum disputes the often-made charge that the Office of Scientific Integrity neglects ''due process'' -- a term OSI critics use with little regard for its technical complexity. But by common conceptions of fairness, the office does appear high-handed. Not really, Mr. Hallum says, while insisting that ''in the scientific model, the burden of proof is on the scientist who makes a claim.''

In a celebrated case, analyses of paper and ink by the Secret Service contributed to the Office of Scientific Integrity's preliminary finding of data fabrication on the part of Thereza Imanishi-Kari, a co-author of Nobelist David Baltimore. The case is stalled, however, because Ms. Imanishi-Kari demands an independent analysis of the evidence. Having not foreseen this obvious legal maneuver, the Office of Scientific Integrity lamely replies that it cannot oblige because it never had custody of the evidence, now held by the Justice Department, which is considering a criminal prosecution.

Mr. Hallum also defends the existence of his office's ''Alert System,'' a secret list of scientists under investigation, though not ruled guilty of anything. Mr. Hallum acknowledges that the list is circulated to NIH's grant givers, but says it is not intended to prejudice granting decisions. He stresses that findings of wrongdoing by the Office of Scientific Integrity are subject to review at higher levels and penalties can be challenged in judicial-type hearings.

OSI's proposed regulations state that ''No opportunity is provided for subjects [of investigations] to confront and cross-examine other witnesses interviewed by OSI.'' Mr. Hallum says the provision is needed to protect whistle-blowers, adding that in his experience, academe has a deplorable record on that score.

The unexpected is that the Office of Scientific Integrity, after many bumbles, was shaping up as an effective overseer of scientific integrity. Its work in the Baltimore case was painstakingly thorough and the conclusions of fakery are solidly based in scientific detective work that does not depend alone on the Secret Service findings.

But then OSI collided with the new director of the National Institutes of Health, Bernadine Healy, who had heard many grievances about the ''science police.'' Expressing outrage about leaks and due process, Ms. Healy has essentially immobilized the Office of Scientific Integrity, leaving wonderment about how it's to be put in motion again.

A solution must recognize that the job of assuring scientific integrity is difficult, unwelcomed by the scientific community -- but important for maintaining political support of science. The scientific component of the job is large and important, but so is the legal part. What OSI needs are several good, full-time lawyers, and the realization that scientific fraud is only partially a scientific problem.

Daniel S. Greenberg publishes Science & Government Report.

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