Number of defendants in W.R. Grace case dropped to four plus the company. Perhaps one more defendant may soon be released.

By the time the jury gets to decide guilt or innocence in the W.R. Grace criminal trial next week, they will have far fewer charges to consider.

Citing court-imposed restrictions that created the inability to introduce enough evidence to prove guilt beyond a reasonable doubt, prosecutor Kris Mclean this morning dropped all charges against defendant William McCaig.

Judge Donald Molloy quickly inserted that his “restrictions” came from the law, the Supreme Court, the Constitution and not something cooked up in his chambers.

During the years before the trial and during the almost nine weeks of testimony, the judge continued to greatly restrict the witnesses and evidence that the government could use.

Leaving the courtroom McCaig shook hands with McLean and others in the prosecution team, and his lawyers hugged several of the defense team remaining to continue the fight.

An organization for government environmental workers say a report from EPA’s IG criticizes the agency’s cleanup of asbestos in Libby.

It’s a bit bizarre to me to be sitting in the back row of a Montana courtroom listening to another day of testimony in the criminal trial of W.R. Grace, while at the same time writing about reported cleanup problems of the lethal mess the same company made in the town of Libby.

Just to keep people (including me) from becoming confused, let me stress that this has nothing to do with the charges against Grace.

Nevertheless, here’s what Public Employees for Environmental Responsibility had to say today about the investigation in 2006 by EPA’s inspector general’s office.

The IG said it found no need for criminal action after its review of the cleanup, but PEER, a union-like organization that sued to get a report on investigation made public, said there were “critical deficiencies” in the agency’s actions.

The suit prompted the release yesterday of the of a 2006 investigation by IG Special Agent Cory Rumple.

Rumple was looking into allegations of public health concerns about the methods employed by EPA to remove asbestos-contaminated vermiculite from homes within Libby.

Accord to PEER, problems found by Rumple included:

·      A thorough “disconnect between scientists and the agency” over how to conduct the clean-up; distribution of “exceptionally deceiving” public health information to Libby residents and fighting within the EPA that led to “dysfunctional decisions and resignations of key specialists.

Because of the ongoing Grace trial, none of the EPA people that I called for comment who were involved in the cleanup were permitted to talk, though some were eager.

PEER Executive Jeff Ruch says the IG report “raises more questions than it answers, including why it was hidden from the public.”

Rumple’s clear conclusion in his report that the Libby problems did not constitute criminal violations, the IG nevertheless launched a 21-month-long criminal investigation which resulted in the Justice Department declining to bring any charges.

“As a result of the Inspector General pursuing a fruitless criminal inquiry, today we still do not have a clear idea of whether the Libby clean-up is protective of the public,” Ruch added.

EPA releases memo on IG investigation of alleged wrongdoing by it people and contractors in Libby, Mont. No criminal action found.

After two years of refusing repeated requests for its release, the Environmental Protection Agency freed up some information on a preliminary report on alleged criminal actions involving government contractors cleaning up asbestos in Libby, Mont.

Last week, Public Employees for Environmental Responsibility filed suit in federal court requesting the release of the report under the Freedom of Information Act and President Obama’s promise of less secrecy.

What was released yesterday was a memo from Cory Rumple, a special agent in EPA’s Office of  Inspector General to Bill Roderick, the agency’s acting IG.
In 2006, Rumple did a preliminary investigation in Libby because of concerns raised by some townsfolk that alleged that EPA failed to fully address scientific standards for cleanup and of possible contractor misconduct.

The agent’s work led a 21-month-long criminal investigation of the situation that concluded with a refusal to pursue criminal case by the Public Integrity Section, Criminal Division of the U.S. Department of Justice.

Here is a link to the IG memo.

An excitement-filled day as prosecution rests and defense for W.R. Grace calls its first witnesses.

A lot happened in the Missoula courtroom of Judge Donald Molloy Tuesday. I’m just not sure what it all means.

I’m going to bow to learned lawyers, reporters smarter that I am and just about anyone else to try to sort out the winners and losers in the criminal trial of W.R. Grace.

Here’s what I do know.

Molloy began the day two hours before the jury was seated with prosecutors Kris McLean and Kevin Cassidy defending their case to the judge who had been asked to toss it out for lack of merit and proof.

“This case looks like a complex matter, but at its essence it’s really quite simple. It’s a matter of right and wrong,” said McLean.

They had shown Grace’s wrongs, or at least as many as they could with Molloy’s severe restrictions on case he’d permit. McLean said there are 100 acts that support the charges of conspiracy, and the government has proven 82 of them.

Grace lead lawyer David Bernick interrupted and tried to get Molloy to hurry up the prosecutor’s presentation, if not shut it off completely. “It’s just a bunch of documents,” he told the judge, who overruled him.

And with precision and straightforwardness that was missing though much of the past eight weeks, the prosecutors methodically flashed through a tick-tock of Grace documents that covered 30 years.

Maybe the gang from Grace just had gas, but a couple of the defense lawyers winced as McLean adroitly laid one document upon another, showing documents that had been presented before but now offered in a more telling manner.

Before calling in the jury, Molloy made a blitz of brief announcements and shocked many in the courtroom by announcing first that he had decided that he would not dismiss the case for prosecutorial misconduct as Grace’s defense team had requested.

I had always believed that judges always tipped the players in their cases about major decisions they were about to make. But most of the lawyer and defendants whose faces I could see looked bewildered or stunned.

In the ruling on the decision that he released last night, Molloy said, “The parties have put before the court a range of remedial options.”

– The most drastic is to dismiss the charges, either with or without prejudice. But “dismissal on the basis of prosecutorial misconduct is not warranted here,” the judge wrote.

– The next option is for the court to declare a mistrial. “The defendants have shown no interest in a mistrial, as it would allow the government the opportunity to start anew and, in essence, benefit from its failure to fulfill its disclosure obligations by receiving the proverbial second bite at the apple,” his honor explained.

– The third possibility is to strike the testimony of prosecution star witness Robert Locke in its entirety as a remedy for the government’s alleged violations of full disclosure requirements of Congress and the Supreme Court.

Molloy passionately believes that Locke lied while testifying, and information about him was withheld from the defense until late in the trial.

The judge said that the defense would be given another shot at Locke for a very limited cross examination, and he would tell the jury that it must ignore much of Locke’s testimony on senior Grace vice president Robert Bettacchi, who Molloy believes was “targeted” by Locke.

With the jury seated, Molloy told them a bit of what they’d missed earlier Tuesday and all day Monday, and at 10:18 on the second day of the eighth week of testimony, the prosecution rested.

Bernick wasted no time bringing the first defense witness, former Grace executive VP Elwood “Chip” Wood.

Wood was a good witness, got few laughs, played well to the jury, but rarely looked at them. Bernick directed him well as he walked the jury through a list of actions Grace had done involving its tremolite asbestos problem.

He asked about the government’s charges, but Wood denied that there was any conspiracy.

“I can’t imagine that I would not have been aware of some such conspiracy if it were happening,” he said.

Wood vigorously denounced and discredited a key memo from Locke, which talked about how Grace would stall or thwart an investigation of the Libby mine by NIOSH, the federal worker safety experts.

Wood said he learned of Locke’s memo, “did a slow burn” for weeks and added, “It corrupted everything we were trying to do.”

Bernick then guided the former top boss into explaining that Grace had notified the federal government of the health problems at the mine.

Wood said that the study was “hard evidence that you have an asbestos related problem.”

In his cross-examination, prosecutor Cassidy skillfully regained some of the lost ground when he showed that 10 years after Grace learned that 41 percent of its Libby miners – who had over ten years on the job – had asbestosis, the company was still telling EPA that it had no data to document there was a health problem.

He also got Wood to admit that he had hired Locke for another job when Wood was made a president of another Grace operation, and he volunteered that Locke did good work.

When Locke was called to the stand for the questioning ordained by the judge, Bernick was ready and far too eager. His grilling of Locke was merciless.

He pushed Locke until he admitted that he was wrong when he had testified weeks earlier about the number of meeting he’d had with the prosecution team over the past five years.

He repeatedly hammered away trying to get Locke to admit that he had a “special relationship” with the prosecution. Four, six, eight times. More. And Locke wouldn’t be forced to use Bernick’s pet phrase.

Locke and the jury were both dismissed.

After the jury left, defense lawyers for Bettacchi and William McCaig petitioned Molloy to free their clients because of the lack of evidence since much of Locke’s testimony was stricken.

The guess is that by the end of today, the number of defendants will be reduced again. The judge says he has several pending motions to address.

The last surprise of the day was when the defense said it should rest its case by next week.

Judge Donald Molly says he will not dismiss the Grace case with prejudice. The criminal trial wiill continue.

Urgent. Judge Donald Molloy says he will not dismiss the charges wwith prejuducie

One Grace defendant freed, judge weighs dismissal of all charges.

The number of defendants in the W.R. Grace criminal case dropped by one today as the prosecutors said that, because of restrictions on what evidence they were permitted to introduce, they could not prove their case against former Grace senior vice president Robert Walsh.

They told Judge Donald Molloy that they were dropping conspiracy charges.  Walsh was met with tearful hugs from some family members and defendants waiting outside the courtroom.

The rest of Monday was semi-high drama before a packed courtroom, and the bottom line was that Molloy is considering dropping the remaining charges in the nation’s largest environment crime case ever.

“One thing I can do is declare a mistrial,” the judge said at one point.

Molloy is faced with two sets of defense arguments: that prosecutors failed to prove their case, and so the defendants should be acquitted, and that the government has engaged in repeated misconduct by misleading jurors and concealing evidence.

Grace’s defense team – starting off with a two-hour plus speech by David Bernick – presented reasons why all charges against the company and its former executives should be dropped.  Mostly, it was a repeat of earlier recitations lecturing the judge that he had two paths to take, both leading to dismissal of the all charges.

Bernick cited rampant prosecutorial misconduct and that the charges lacked merit and that prosecutors had failed to prove their case. He urged Molloy to pick any of those reasons to dismiss the case.

Asst. U.S. Attorney Timothy Racicot argued for the government and repeated many of the same responses that have been used against Bernick’s allegations before.

“Bernick talked about our weaknesses for over two hours and only mentioned two documents,” Racicot told the judge. He acknowledged that mistakes have been made in disclosing some evidence, but that they were not grounds for dismissal.

Molloy said the prosecution “put in 40 years of discombobulated evidence that they don’t understand themselves.”

“That’s the problem with a 50-year-old case.”

“I know your honor,” Racicot said.

“Others do not,” Molloy added.

“Trying to split hairs and justify unprofessional behavior will not work,” he said and added.  “From the get-go, I trusted Mr. McLean. My trust probably kept me from doing what I should have done.”

A few minutes later McLean took the podium and appeared infuriated by the charges that the defense had thrown at him all day – lying, suborning perjury and more.

“I have never misled or lied to a jury,” McLean told Molloy.

“I’m standing here to answer your questions about my conduct,” he said to the judge.  Once. Twice. A third time.

Molloy said nothing for a while.

“I don’t have any other questions, Mr. McLean,” he said finally.

“Are you sure?” the prosecutor asked.

“I’m sure,” the judge replied.

Molloy has given McLean two hours tomorrow morning to explain the merits of the government’s case and why the charges should remain. If the judge decides the trial should continue, the defense will then begin presenting its case.

The district court website for Judge Donald Molloy’s own domain offers link and info on filing charges of judicial misconduct. Thank you.

While significant attention in the criminal trial of W.R. Grace has been focused on yet-to-be-proven allegations of prosecutorial misconduct, an increasing number of readers of this blog and elsewhere are questioning whether Judge Donald Molloy’s actions should be scrutinized.

Good question. Judges have enormous latitude in what they can do in their courtrooms.

Having said that, in 1980, after months of contentious hearings and debate, Congress made its first meaningful attempt to hold federal judges accountable by passing the Judicial Conduct and Disability Act.

In 2002, the House Judiciary Committee amended the Act to add clarifying language, and four years later Chief Justice William Rehnquist tasked Justice Stephen Breyer to review the Act once again.

If you want to learn more about charging a judge with misconduct, you might be as surprised as I was to find all the information you need on the website of Molloy’s own court.  Here’s the link.

On that page, just below the information on the Grace case, is a link labeled “Rules of Judicial Misconduct.”

The link goes to the Ninth U.S. Circuit Court of Appeals – coincidentally, the appellate court that has overruled many of the decisions that Molloy has made in the Grace case. The link will take you to a page where the rules and limitations for filing against a judge are explained. It even supplies the form required to file a complaint against a judge.

But before you gleefully race off to do so, you should know that the procedure created by Congress permits any person to file a complaint about the behavior of federal judges – but not about the decisions they make in deciding cases.

For example, some points of misconduct include:
–    using the judge’s office to obtain special treatment for friends or relatives;
–    accepting bribes, gifts, or other personal favors related to the judicial office;
–    having improper discussions with parties or counsel for one side in a case;
–    treating litigants or attorneys in a demonstrably egregious and hostile manner. (This is one that, perhaps, should be kept  handy.)

But among the things that the law says are not misconduct are:
–  an allegation that is directly related to the merits of a decision or procedural ruling.
–  an allegation that calls into question the correctness of a judge’s ruling.

Many of Molloy’s dealings with the prosecution appear extreme and often unprofessional, not just to lay observers, like reporters and people of Libby, but to several who practice law for a living.

That doesn’t mean that filing a charge of judicial misconduct would be easy or even possible.

Molloy’s anger at lead prosecutor Kris McLean for appealing several of his decisions to a higher court had been long predicted. Additionally, the judge’s disdain for McLean’s boss, Montana’s U.S. Attorney Bill Mercer, is well known in the U.S. Department of Justice, on Capitol Hill and throughout Montana’s legal structure.

In 2005, Mercer was appointed the number three man in former Attorney General Alberto Gonzales’ Justice Department. The AG said he hoped that Mercer could bring much-needed stability at a time when, apparently with White House urging, several U.S. attorneys were fired for political reasons.

Molloy resented that Mercer did not relinquish the Montana position and, in a letter dated Oct. 20, 2005, urged Gonzales to dump him either in Helena or D.C. Molloy frequently charged Mercer with neglecting his duties in Montana while on dual assignment.

One thing that continues to puzzle some of my contacts in Justice and EPA headquarters is how and why Mercer and David Uhlmann, the then-chief of the Justice Department’s Environmental Crimes Section, got away with pursuing criminal indictments against Grace.

Regardless of how meritorious the indictment may have been, the Bush White House and the Office of Management and Budget wanted absolutely no publicity on any issues involving risk from asbestos exposure. The silence was desired because Bush was pushing extremely hard for tort reform to eliminate lawsuits for personal injury from asbestos – a promise that Republican managers had made to industry.

There are so many weird questions for this judicial exercise for which it would be great to have answers.

For other views on Molloy and his actions, I urge you to read Tristan Scott’s significant story in today’s Missoulian. Here’s a link.

Of particular interest is Uhlmann’s view on Molloy’s actions. Uhlmann is now director of the Environmental Law and Policy Program at the University of Michigan and one of the very few judicial experts willing to speak on the record about the shenanigans in the Montana courtroom.

For example, Scott quoted him as saying: “What’s disturbing, particularly in a case of this magnitude, is that a federal district court judge is using inflammatory language and making allegations of prosecutorial misconduct when there’s so little on the record to support his claims.

“It raises anew the question not only about whether the United States is receiving the fair trial that both sides deserve, but also whether the judge has lost sight of the fact that there is a town of victims in Libby, Montana.”

While the cat’s away, W.R. Grace lawyers fill the docket with yet more motions calling for the criminal trial to end.

Grace lawyers filed a 75-page motion Thursday outlining their reasons why Judge Donald Molloy should end the criminal trial against the company and its former executives now.

To save you all some reading, I’ll tell you how their story ends.

On the 74th page the lawyers wrote:

“CONCLUSION
The indictment must be dismissed with prejudice.”

The phrase “with prejudice” means the specific case the government brought against Grace cannot be brought again.

To bolster its motion, the defense said: The Government has acted “flagrantly, willfully, and in bad faith” throughout the long history of this prosecution . . . and has abdicated its “sworn duty . . . to assure that the defendant has a fair and impartial trial.”

The Grace team claims intentional and unending misconduct by the prosecution. These section headings in their motion offer a glimpse into what the company hopes the judge will buy off on.

• The Government Directs Its Experts To Mislead The Jury And Seeks To Conceal Its Own Malfeasance.

• The Government Deceives Its Own Witnesses And Obtains Misleading Testimony From Them.

• The Government Systematically and Recklessly Deprived Defendants of their Right to a Fair Trial.

• The Government Has Shown A Reckless Disregard For Defendants’ Rights.

“Dismissal is the only appropriate remedy,” the lawyers insisted.

The prosecution is expected to file its response to the request for a dismissal today. And Molloy promised he would read them all as he travels across the country.

– – – – – – – – – –

Meanwhile, elsewhere in the clerk’s office, Molloy left a ruling filled with bad news for the prosecution for its lawyers to chew on in his absence.

No one expected his decision on what the exhibits the government would be permitted to enter into evidence would be a ruling that Asst. U.S. Attorney Kris McLean and his gang were going to savor, but his honor outdid himself. Molloy ruled that the jury would be permitted to see only seven of the government’s 54 exhibits.

The 54 were just a fraction of the documents that prosecutors wanted to introduce, but they realized that they stood no chance of getting the rest past Molloy.

The judge, in his ruling, said the prosecution’s indictment “appears to have been drafted as a historical compendium of the defendants’ alleged wrongful acts, without regard as to whether those alleged acts relate in any way to a federal criminal offense.”

“Most of the exhibits suggest some knowledge of dangerousness on the part of the defendants, but there is already ample evidence in the record on that point,” Molloy wrote. “Moreover, some of the exhibits refer to health risks to Grace employees, including death due to lung cancer and other pulmonary impairments.”

Molloy said the government used the “notice of dangerousness as a pretext through which it can present irrelevant and prejudicial evidence of the serious health problems of company employees.”

A Montana lawyer and a law professor from the District of Columbia, who read Molloy’s justification for eviscerating the prosecution’s documents late Thursday, both said the judge is providing a solid base for an appeal if the case is dismissed and, if not, mountains of fodder for text books and law journal articles on what happened in his courtroom.

So much for judicial decorum. If there were a statue of Lady Justice in Judge Donald Molloy’s courtroom, she would need earplugs along with her blindfold.

The W.R. Grace criminal trial has been recessed for a week and the prosecution has not rested its case. Asst. U.S. Attorney Kris McLean said he had called his last witnesses and was expected to rest it’s case Tuesday after dickering with the judge to get dozens of documents introduced into evidence.

That didn’t happen.

According to people sitting in the courtroom and watching Tuesday’s debacle, it was ugly, especially the afternoon session. (I missed the proceedings because I headed back to Seattle.)

I read everything the University of Montana “Grace Case” bloggers and tweeters wrote and talked to two lawyers, who observed what one called “a demonstration in unprofessionalism.”

The other lawyer, who said he was “a long-time fan” of Judge Donald Molloy, said the prosecution was “brutalized,” especially McLean, who was “personally attacked” not just by Grace, but by the judge.
Asked the first lawyer: “Why slap him around when the jurors and most of the court-watchers were gone? There was nothing at all professional about it. Not a damn thing.”

The defense argued fervently that the documents McLean wanted to introduce were prejudicial and had no probative merit.

University of Montana Law School blogger Katy Furlong wrote that some of the evidence Grace does not want the jury to see includes company memos written by Grace’s medical director that:
    Discussed a 27-year-old employee who had only worked in the mine’s garage but whose lungs showed signs of asbestos disease on X-rays.
    Warned that the results of a health study would become public knowledge regardless of confidentiality agreements, and Grace should be prepared to deal with the consequences.
    Said that Grace’s “major problem is respiratory cancer. This is no surprise.” The memo was distributed to most of the other defendants in the indictments.

UM journalism student blogger Nate Hegyi wrote about the degree of “mean-spiritedness” toward McLean.

At one point, Hegyi reported, Grace’s lead lawyer, David Bernick, openly mocked the prosecutor’s slow drawl and delivery. And at another point, members of the defense laughed when McLean said he couldn’t remember reading over one of the government’s documents, the student wrote.

Hegyi also noted Molloy’s displeasure with McLean: ‘ “It is mind boggling to me that a case of this magnitude would be brought by the United States and that McLean would bring documents that he’s never even seen before,” Molloy said before pounding his gavel and calling for evening recess.”‘

Court is set to resume next Monday.

What’s in a name? Perhaps the difference between guilt and innocence if the name involves asbestos.

Just what constitutes asbestos is a question that already has made its way from Montana to the 9th U.S. Circuit Court of Appeals and back again. But that didn’t stop the argument from arising again this week in the Missoula courtroom where W.R. Grace and five of its executives face criminal charges for the asbestos poisoning of residents of Libby, Mont.

On Monday, Assistant U.S. Attorney Kris McLean asked U.S. District Judge Donald Molloy to take “judicial notice” of the definition of asbestos. The term means allowing a well-established fact to be introduced without the traditional presentation of evidence and testimony.

The prosecutor wanted Molloy to accept and read to the jury the definition of asbestos handed down by the appellate court, which ruled that asbestos was grayish in color, non-combustible, composed primarily of impure silicate magnesium, and fibrous.

McLean also asked the judge to read to the jurors the rest of the appellate court’s Sept. 20, 2007, ruling on the subject.  In that ruling the three judge panel found that  Molloy was wrong when he “improperly limited the term ‘asbestos’ to the six minerals covered by the civil regulations. Asbestos is adequately defined as a term and need not include mineral-by-mineral classifications to provide notice of its hazardous nature…”

This broader definition means a lot, especially in this trial because of all the angst over what to call the asbestos that has killed and is sickening so many people in and around Libby.

But Molloy only gave McLean half a loaf. He read to the jury the physical characteristics of asbestos outlined by the appellate court, but declined to tell the jury that the 9th Circuit also had ruled that the definition of asbestos “need not include mineral-by-mineral classifications.”

That left open the argument that long has raged over the asbestos found in Libby. And both sides were quick to join that battle again.

McLean introduced into evidence carefully sealed jars with asbestos-containing vermiculite from Libby asked senior U.S. Geological Survey Geologist Greg Meeker to walk the jury through the movement of glaciers over Libby 14,000 years ago that led to the mineral legacy there.

Meeker was the first to determine that the amphibole asbestos found near Libby – long, skinny, dangerous fibers – was a mixture of tremolite, winchite and richterite.

Thomas Frongillo, a lawyer representing defendant Robert Bettacchi, a former Grace VP, cross examined Meeker and quickly moved to the argument that none of those three fibers were among the six forms of the mineral commonly considered dangerous.

Grace lawyer Scott McMillin argued over the colors of the different types of asbestos and then used several maps showing the movement of glaciers over Libby 3,000 to 15,000 years ago to support his contention that the asbestos contaminating the small town did not come from Grace’s mine but occurred naturally in Libby’s soil.

In his redirect of Meeker, McLean got him to explain to the jury why the glacial theory did not work.

For those of you who want more, here is a link to the appellate court’s definition of asbestos: http://www.ca9.uscourts.gov/datastore/opinions/2007/09/20/0630472.pdf

Even if the jury remained confused by the question of what asbestos was, the government pushed hard to prove that the health effects for the people of Libby were beyond dispute.

Prosecutors ended their day Monday with testimony from Dr. Richard Lemen, a former Asst. U.S. Surgeon General and past deputy director of National Institute for Occupational Safety and Health, the workplace safety research arm of the Centers for Disease Control.

Lemen is an epidemiologist and specializes in identifying the sources of disease. And he quickly got to the point the prosecution wanted made.

“Yes, there was an imminent risk of (asbestos) exposure to the people of Libby,” Lemen said.

Bernick soared to his feet and immediately objected. He was overruled by Molloy, which stunned much of the court.

Lemen said asbestos was all over Libby. And the more asbestos pathways people are exposed to, the greater the accumulation of the lethal fibers will be in their bodies.

Bernick repeatedly asked Lemen about exposure studies done at Libby or the mine.

Lemen asked to see the studies saying “I am not going to lay memory games with you.”

Bernick and Lemen sparred vigorously over epidemiological studies on the victims in Libby.

“Show me the study and I’ll answer your questions.  I’m not going to guess, it’s too important.”

Lemen stood his ground and refused to parrot Bernick’s words.

“Stop,” Molloy bellowed at Lemen. “You’re here to be a witness. I don’t want to have to intervene with every single question.  If you want to be a lawyer, go to law school.”