andrew schneider investigates

April 8, 2009

Judge denounces prosecution in W.R. Grace case for not proving criminal acts.

Filed under: Uncategorized — Andrew Schneider @ 20:43

If you like excitement and absurdities, today was a day to be sitting in the courtroom in Missoula, Mont. watching the W.R. Grace criminal trial unwind.

Trying to get over pneumonia, I was stuck in Seattle and knew I was going to miss the performances of prosecutor Kris McLean and Grace’s top dog, David Bernick. Sick or not, I would have crawled the 500 miles to watch what turned out to be the U.S. District Court Judge Donald Molloy show.

Relying on reports from a couple of friends watching the trial and written roundups from the Missoulian’s hot court reporter, Tristan Scott, and the University of Montana’s Elizabeth Diehl, it looked like a hell of a session.

According to observers, His honor came unglued and did everything short of beating the government lawyers with his gavel. He gave the jury a 20-minute break and, with no subtlety whatsoever, ripped into McLean, who is only about midway through the prosecution case, for failing to prove some of the eight criminal counts brought against Grace and five of its executives.
To some in the courtroom, Molloy’s scathing denunciation sounded like he was going to end the trial – which was estimated to run between four and five months.
“Six weeks we have been at this and I don’t know what the conspiracy is,” Molloy lectured the assistant U.S. attorney.
“Where’s the conspiracy? At some point you have to prove that there was a conspiracy to do something illegal,” Scott quoted the judge as saying.
Diehl, one of the mixed group of law and journalism students offering non-stop coverage of the trial added this quote from Molloy: “There is not an agreement where people decided to sign a piece of paper saying they were going to break the law. Who is going to testify about the agreement? If you can’t prove that, you can’t prove this case!”
McLean finally found an opportunity to reply.

“We beg the court for some patience, we have only called 22 witnesses,” the prosecutor said and added that they were slowly building the case.

He said the proof of the conspiracy is emerging through Grace’s own internal documents and memos.

Molloy disagreed and, those in the courtroom wrote, ranted on saying he didn’t believe that moral culpability should be confused with illegal actions.
“Maybe what I should do is just tell you that you have to put on proof of the conspiracy. And if you can’t prove that then we can shorten the trial,” Molloy spewed.

The prosecution already has entered many of the potentially damning Grace documents into evidence, but it remains unclear if the jury will ever see them. The defense objects to the introduction of most of the incriminating reports and letters, and the judge often upholds Grace’s argument.
Molloy has a reputation for being the king of his own courtroom. It will be fascinating to see how the legal scholars and not just reporters write about his handling of this trial.
Not that Molloy needed any help in chopping the prosecution into puppy food. Grace lawyer Bernick, never one to miss the opportunity to go for McLean’s throat, joined in the assault, bellowing that the government’s theory was “ridiculous, stupid” and “outrageous,” according to reports from the courtroom.
“This case does not have a compass your honor,” the Grace lawyer added. “They keep poisoning the well, poisoning the well, and poisoning the well, and then say give us more time!”
My thanks to my two journalistic colleagues for their careful work, which I have used to share today’s happening with others. To see the rest of their work, here’s a link to see the university’s play-by-play and the Missoulian’s website



  1. What did the Germans do after WWII? Sounds like the same argument coming from the judge. There simply is no direct and written direction to and from the perpetrators of the crimes. Being a willing participant to murder isn’t a crime unless a direct link to the murder can be proven. Historians probably have a more eloquent description of how this happens. And history repeats itself.

    Comment by Scott R. Hite — April 9, 2009 @ 02:24 | Reply

  2. Having sat through four previous Grace trials, yesterday’s comments from Malloy takes the prize for idiocy!

    Since when is it the Judge’s decision to declare that there isn’t a case? Hasn’t he had at least three years to make this decision? Or was he nodding off then also?

    I thought that was why a jury was selected. Otherwise, why have a jury?

    Hopefully, the jurors are more intelligent than the judge and realize that we have been wronged by the combined actions of W.R.Grace!

    Thank God the Judge wasn’t a resident of Libby during the era of proving to the community members that we did have a problem. It was as difficult as “herding cats” into a small corral in order to show our leaders that there was a problem then, and in order to prove our point, we need to do the same thing.

    We can only hope that the Judge allows this to go to jury. Then there is hope!

    Comment by Gayla Benefield — April 9, 2009 @ 09:45 | Reply

  3. […] Andrew Schneider Investigates has the latest from the Missoula courtroom, where the judge in the WR Grace asbestos trial “came unglued.” […]

    Pingback by Friday Blog Roundup « The Pump Handle — April 10, 2009 @ 14:19 | Reply

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

Blog at

%d bloggers like this: