andrew schneider investigates

April 14, 2009

W.R. Grace lawyers allege widespread prosecutorial misconduct and hint at having no choice but to end the criminal trial.

Filed under: Asbestos,W.R. Grace — Andrew Schneider @ 13:09

The never never land of the criminal trial of W.R. Grace for the poisoning of Libby, Montana will reach a birrare  crossroads by week’s end when Judge Donald Molloy may be given documents that prove that government prosecutors intentionally concealed evidence that defendants had a constitutional right to have, or so say Grace’s lawyers.

After the jurors departed on Monday, the lawyers and Molloy quickly targeted the integrity of a man who testified late last month and may have perjured himself by repeating  statements that may never have been made. It was Robert Locke, a former Grace global vice president for its construction division.

Locke had testified that he told Robert Bettachi, one of the five indicted Grace officials, that selling land in Libby “was a real bad idea; we should just plant grass and keep people the hell out of it,” and that Bettachi replied by saying, “Buyer beware.”

However, Locke’s statements in March clearly contradicted his testimony before the Grand Jury hearing the Grace indictments in 2005 where he reportedly said, also under oath, that he had never discussed the properties with Bettachi.

It was known and commented upon by a very angry judge that Locke’s testimony was wrong, and the government knew it and did nothing.

“I think he’s perjured himself. If not he’s coming as close as I’ve ever seen,” Molloy said late last week, speaking of Locke.

But Locke’s reputation plummeted further Monday when the defense disclosed documents and email showing that Locke said he was offered an immunity deal in exchange for the testimony, but claimed he turned down the agreement.

Grace’s lawyers said they also found correspondence from EPA Special Agent Robert Marsden urging Locke to turn down the offer because it would mean more to the jurors.

Defense lawyer David Krakoff told Molloy that there were other communications from the prosecutor’s team that promised Locke that he would not be prosecuted for testifying.

David Bernick, seeing that Molloy was already significantly displeased with Locke, took his moment (actually, many, many moments) at the podium to broaden the allegations of misconduct to perhaps include the entire government team.

He demanded (strike that) politely requested that Molloy order delivery of the paper trail by Friday showing the prosecution’s communication with all the witnesses to see how far the alleged prosecutorial misconduct might range.

Molloy said the scheduled hearing on Friday would allow the exploration of whether prosecutors had working relationships with other witnesses. Defense lawyers said disclosure of that information could affect if and how the remainder of the trial unfolds.

Thomas Frongillo jumped into the fray saying the tainted evidence damages the integrity of the United States Criminal Court system as well as the constitutional right of due process of the Grace officials on trial. With unbridled emotion he talked about the indictment of knowing endangerment against his client Robert Bettachi.

Saying the 15-year sentences that can come with the most serious environmental criminal charge in the U.S. (criminal) Code can force Bettachi, if found guilty, to spend the rest of his life in prison.

“And this,” he added in his comments to Molloy, “is based on tainted evidence.”

Every lawyer that spoke invoked the Brady Doctrine which demands that that prosecutors always disclose exculpatory material to the defendant and that violation of Brady violates the defendant’s right under the Due Process Clause of the constitution.

Bernick called it a tainted case and that the evidence has been manipulated, and Frongillo added that the fairness of this trial has been irreparably tainted by the prosecution.

I’m sure that the heads of the Grace lawyers were filled with visions of the over-turning of the conviction of Former Alaska Sen. Ted Stevens because of prosecutorial misconduct last month.

I also bet that some of Grace’s lawyers are wondering if they could get a refund on the five-month leases they signed on the condos they’re renting.

By the time they were done, Grace’s gang had told Molloy that the government team not only withheld key evidence, but also knowingly presented false and misleading testimony based on fraudulent exhibits. The judge had little to say beyond asking U.S. Attorney Kris McLean if he had anything to add.

The lead prosecutor said he would present his side on Friday and that the defense was misrepresenting the letters from Marsden by failing to read the backside, which, McLean said, put the matter in context.

Kevin Cassidy, McLean’s partner, tried to accept much of the blame.

“We’re a prosecution team and we have apologized to the court and to the defendants. Agent Marsden’s name has been said a lot today, but he wasn’t in this alone,” Cassidy said.

Friday will be interesting.

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