Even court personnel and defense lawyers seemed a bit stunned Monday when Chief U.S District Judge Donald Molly ripped into government prosecutors blaming them for every problem but global warming. It didn’t take a legal scholar to figure out that the judge was royally angered at a ruling on Friday by the 9th U.S. Court of Appeals.
The higher court overturned a February order by Molloy that barred witnesses from Libby who were also victims of Grace’s alleged criminal action to watch the trials before they testified. The appellate court made it clear that Molloy had violated the provisions of the Crime Victim’s Right Acts and to let the people watch .
Molloy had suspended the trial and ordered Assistant U.S. Attorney Kris McLean to have 34 witnesses in the courtroom this morning to testify. They would do so before the judge and not the jury and then return at a later date to testify for real in open court.
But when Molloy slammed the gavel, there was no sign of the witnesses. There wouldn’t have been the original 34. Some had already testified and, McLean said, several were dropped from the witness list. This, because Molloy had severely restricted the evidence that the government could present against Grace.
“They could not be here today for many reasons, including the fact that they have determined that they just do not want to be here. No one wanted make two trips to Missoula to testify,” McLean told an incredulous judge. He added that the matter was moot.
“It’s not moot,” bellowed Molloy, adding that the appellate panel had ordered him to listen to the testimony of all witnesses so he could determine if later they had changed their opinions based on what they had heard from other witnesses.
“Let’s get something straight here,” Molloy said. “This case has been going on for too long. “And it has been delayed, delayed, delayed. And it’s going to get tried. And it’s going to get tried in accordance with the procedures that have been around in this country for over 200 years,” said the judge.
You could see the white knuckles of those sitting at the U.S. Attorney’s table. Neither they nor McLean said a word, but you had to know that everyone wanted to scream that the endless delays were caused by Molloy.
The judge had repeatedly taken Grace’s position on the admissibility of witnesses, evidence and science the prosecution planned to use. Those rulings were so devastating to the government’s case that McLean took the dangerous and uncommon action of challenging Molloy’s orders to the appellate court.
The higher court overturned Molloy almost every time as they did on Friday and some Missoula lawyers think today’s tirades was pay back.
The judge told McLean that he had warned the government as long ago as four years and several times since that this witness issued would surface. “You did nothing,” Molloy said.
One of the defense lawyers put his hand over his eyes, as if blocking something obscene or unpleasant.
“They just don’t want to come. The witnesses have decided that they don’t want to sit here for three to five months. What would you have me do?” McLean asked the judge.
The judge said he didn’t want the community of Libby thinking that this process is somehow tainted. “This is a public process. And there are rights that the defendants have, believe it or not. And it’s going to be a fair process,” Molloy said.
It turned out that the only witnesses that really wanted to watch all of the trial was Mel Parker and his wife who had bought 22-acres of asbestos-contaminated land from Grace. In fact, the motions to the appellate court was filed on their behalf. More than a dozen other witness said they wanted to see a portion of the testimony, but not enough to give Molloy a preview. The Parkers finally told McLean that they would not attend so the trial could move ahead.
Molloy didn’t like this idea either. Instead, he ordered McLean to put the Parkers on the witness stand on Tuesday, rather than as the prosecution’s last witnesses as planned.
McLean had no option but to agree.