andrew schneider investigates

April 15, 2009

Prosecution in Libby criminal trial will wrap up early. Perhaps, too early.

Filed under: Asbestos,Government & corporate wrong-doing,W.R. Grace,Worker Safety — Andrew Schneider @ 21:00

The prosecution in the government’s unprecedented environmental criminal trial against W.R. Grace and five of its former executives for asbestos poisoning in Libby, Mont., is lurching toward a conclusion Tuesday – weeks before originally planned.
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By my count, which should be close, Assistant U.S. Attorney Kris McLean has called fewer than half of the potential witnesses on his original list.  And many of those who did testify provided evidence over the fervent objections of Grace, which were often backed District Court Judge Donald Molloy.

As I wrote earlier today, Chris Weis, EPA toxicologist and probably the government’s top expert on how and to what degree people were exposed and sickened by asbestos from Grace’s mine in Libby, was jerked from the prosecution’s witness list.  Overnight, the Grace team filed a 10-page brief objecting to Weis taking the stand.

The motion concluded that “the Court should preclude Dr. Weis from testifying, because his testimony would violate the Confrontation Clause and because his testimony is outside the scope of his expert disclosures and wholly cumulative” to what other witnesses presented.

Grace has repeatedly invoked “the Confrontation Clause,” which basically says an accused must have the opportunity to confront those presenting evidence against them. Think back to Law and Order and other cop shows where the lab techs who removed the bullet or analyzed the cocaine testified before the jury precisely about what they did.

That may make sense in a typical criminal trial. But what happens in a case like this where you’re talking about over 70,000 individual asbestos samples taken over five or more years at hundreds of different locations in and around Libby and the Grace mine?

In this case, Grace won and Weis, one of the prosecution’s key witnesses, is out.

One of the saddest parts of this tale is that the prosecution didn’t even file an argument to Grace’s motion. Maybe Molloy would have ignored it or perhaps he would have stood tall and worked out a compromise, but we may never know.

I guess that’s easy for me to say because I had finished my work by midnight.  I wonder what time Assistant U.S. Attorneys McLean and Keven Cassidy and the rest of the prosecution hit the sack.

As I’ve written before, the U.S. government has only fielded four lawyers, a couple of investigators and very few assistants for this most important of trials.   Grace has scores of people on its payroll and present in the courtroom or nearby war rooms.

Every day its top lawyer, David Bernick, promises the judge another selection of fresh motions and legal briefs for his reading pleasure.   I doubt seriously that the well-paid counsel writes, let alone researches, them.

Bernick has made no secret of the fact that Grace is taking every shot it can to throttle the government before it begins its defense. He warned Molloy this afternoon that a wave of new motions are coming.

They are expected to challenge McLean’s few remaining witnesses, allege prosecutorial misconduct and seek an acquittal for Grace.

Bernick told the judge that the request to end the trial in Grace’s favor won’t be completed until Molloy is on the road next week to see his son get his pilot’s wings.

His honor assured the lawyers that he was well wired electronically and could continue the court’s work while he’s traveling.

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