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Herrmann: Continues to deny any involvement in misconduct, blaming his collaborator. Credit: THOMAS KLINK

Prosecutors in Germany are finding it more difficult than expected to bring legal charges against two scientists alleged to have perpetrated Germany's biggest ever scientific fraud.

More than a year after a scientific investigation committee concluded that clinical researcher Friedhelm Herrmann and his colleague, molecular biologist Marion Brach, had systematically fabricated data in 37 publications — and nearly two years after the affair first came to light (see Nature 387, 442; 1997) — no case has been brought to court.

Brach, who worked — and lived — with Herrmann at Harvard, Freiburg and Berlin before parting from him in 1996 to go to the University of Lübeck, has admitted fabricating data. Herrmann, who moved to the University of Ulm in 1996, continues to maintain his innocence, placing full blame on Brach.

Brach was dismissed as full professor in 1997. She is now reported to be working in New York, and is only communicating with investigators through her solicitor. Herrmann resigned his position in Ulm last month and is now working as a private practitioner in Munich.

Public prosecutors in three regions began investigating different aspects of the affair last year. Those for the state of Baden-Württemberg, Herrmann's formal employer at the University of Ulm, had hoped to take disciplinary action against him on the grounds that evidence that he perpetrated fraud made him “unsuitable” for employment as a professor and Beamter (civil servant).

But they had to abandon their strategy three weeks ago when the ministry of science and research in Baden-Württemberg accepted Herrmann's resignation.

Meanwhile, prosecutors in Ulm have been investigating evidence that Herrmann used research papers containing fraudulent data to support his application for his post as professor at the university. But they have suspended their investigations pending clarification of a court ruling in an unrelated case in Berlin.

This case concerns a policeman from east Berlin, who had concealed his former relationship with the Stasi in order to secure employment in the police force in reunified Germany. The court ruled that he should not be disciplined on the grounds that his work since reunification had been satisfactory.

A verdict from Germany's highest court, the Bundesgerichtshof, to which this decision has been appealed, is expected shortly. Because the charges against Herrmann relate to work conducted before he arrived in Ulm, the prosecutors there are waiting for this ruling before deciding whether to proceed.

But Albin Eser, director of the Max Planck Institute for International Criminal Law in Freiburg, who has specialized in scientific fraud, argues that the link between the two cases is not obvious, as the concerns about the policeman as a Stasi informer related to his character, while those about Herrmann related to the way he conducted his job.

Scientists who want to see Herrmann and Brach sanctioned are now pinning their hopes on an investigation by public prosecutors in Berlin, where many of the fraudulent research papers were written, into whether the two researchers made false statements to acquire grant money.

The Deutsche Forschungsgemeinschaft (DFG) and the Deutsche Krebshilfe Stiftung (German Cancer Aid Foundation), which between them gave around DM3 million (US$1.8 million) in research grants to the researchers, have provided documents to help the prosecutors decide whether the success of their grant applications was dependent on fraudulent papers.

The Thyssen Foundation, which awarded a grant of DM200,000 to the pair, has also provided documents to help the prosecutors decide whether the application was copied from a Dutch research grant application that Herrmann had been asked to referee.

All three agencies are awaiting the outcome of the Berlin investigation and any possible trial before beginning their own steps to reclaim their money. Such a process could take years. If a trial were to prove that the pair were guilty of fraud, says Christoph Schneider, director for scientific and international affairs at the DFG, it would be a straightforward matter to sue for return of money.

Indeed, in the event of conviction, state-supported grant agencies and charities would be legally obliged to sue for return of grant money. But actually getting the money back would be fraught with difficulty, admits Bruno Zimmermann, the DFG section head who followed the case.

As grant agencies make contracts with institutions rather than individual researchers, the universities where the grant money was spent would presumably have to be sued first, he says. The legal responsibilities have yet to be sorted out, says Zimmermann.

Eser says he is “highly frustrated” with how slowly the case is moving, and is also worried that even if Herrmann's involvement is demonstrated, he may “get away without sanctions”. Detlev Ganten, director of the Max Delbrück Centre in Berlin at which Herrmann and Brach worked for several years, is similarly angry at this possibility.

But not everyone is seeking retribution. Guido Adler, dean of medicine at Ulm University, points out that Herrmann is no longer working in academia, and believes that the most important issue is the work of a newly created task force, funded by the DFG, which will assess the scientific impact of the affair and set the record straight (see Box).

Meanwhile Herrmann, who now works in a private medical practice Munich, continues to deny any involvement in misconduct, and sees the failure to bring charges against him as proof of his innocence. He says he is a victim of press harassment which “has harmed my career and destroyed my family”.

“Brach was the scientist in the lab: my main and only job in the past ten years has been to care for patients”, he says, contradicting the views of many former colleagues that he has always been more of a lab researcher than a clinician. “Now I just want to be left in peace to build up some sort of future.”

He could well achieve his goal. The German Chambers of Physicians, which regulate the medical profession, is informed automatically of court convictions — but does not require doctors on their lists to submit details of criminal investigations.

And if Brach is indeed living in New York, she may well avoid a trial because Germany has only an extradition agreement — under which cases are negotiated individually, and the outcome often depends on the severity of the charges — rather than an extradition treaty, in which extradition is automatic on request.