Writing a blog is supposed to be fun. And most of the time, I enjoy it.
You can pontificate on things you know nothing about, express opinions on subjects that no one but you care about, get outraged at what you think is absurd. And, generally, make a complete fool of yourself over the entire nano-size fraction of the world that logs on to read your posts.
But being freshly widowed from my deceased newspaper, I still think what I’m doing is journalism, and the rules that I’ve written under for decades still apply for me — mostly.
And this is the reason why I’m not going to do a normal blog post on what happened in federal court in Missoula at the W.R. Grace criminal trial today
I am so angry at what I watched being acted out in the name of justice this morning that there is no way I could come even close to being civil. But I am not a lawyer, nor do I play one on TV, so it might be that everything was judicially appropriate. You read what happened and see if you get concerned.
Here are the facts:
Special Assistant U.S. Attorney Eric Nelson began the day by questioning Fred Kover, a career EPA specialist who in the 1970s and early 80s was supervising the group that handled mandatory reports from corporations required under the Toxic Substances Control Act of 1976, These included reports from Grace on asbestos in its products.
The Act says, in part, “Any person who manufactures, processes or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment shall immediately inform the [EPA] Administrator . . . ”
Nelson had Kover walk the jury through the law and explain several EPA reports and documents that dealt with what information Grace gave the government and when.
The government needed to show that Grace concealed information on the hazard from tremolite asbestos in its products. And after a bit more than 30 minutes, Nelson must have thought he succeeded and turned the witness over to Grace’s lead lawyer David Bernick for cross examination.
Bernick set up his white boards and, for the next two-and-a-half hours, tried to prove that his client gave the government all the information needed.
It was not just a question and an answer. Bernick roamed all over the playing field, asking rambling, protracted questions, more like he was making closing arguments to the jury than trying to elicit answers from an opposition witness.
The questions were often repeated and, in many cases, his efforts to lead the witness appeared obvious, at least to several in the gallery.
In one exchange, Bernick asked Kover if EPA reports on tremolite asbestos from Libby in the early 80s marked “a sea change” in EPA attitudes in how the EPA viewed Grace issue’s information.
The retired EPA official didn’t give the answer the lawyer wanted, so Bernick repeated the question again, and again, and I believe, again.
Then Bernick asked Kover if the government had shown him a certain document. He answered “no.”
Bernick repeated the question for another 20 or 25 documents, letters or reports, including some that other government witnesses had testified about seeing.
The actor in Bernick surfaced again and he performed well, showing the jury that he was increasingly shocked every time Kover said “no,” the government hadn’t shown him that document. It apparently didn’t matter that most of the paper Grace’s lawyer was questioning Kover about had nothing to do with his testimony or his areas of responsibility within EPA.
Nelson, unlike others on the government’s prosecution team, was willing to try to object to some of Bernick’s actions. But the objections did little good. Molloy overruled most.
Finally, Bernick, opening his arms wide towards the jury, asked how there can be a conspiracy to defraud the government when Grace and the EPA had interacted so often on asbestos decades ago.
He shook his head and said he had no further questions.
Nelson tried to redirect, to ask his witness to address some of Bernick’s issues.
It went poorly, with Bernick objecting to 13 of the 16 questions the prosecutor tried to ask. Molloy overruled two or three. Grace’s lawyer’s objection were mostly for the identical antics he pulled when questioning Kover.
During the lunch break, three of Bernick’s colleagues said either to me or loudly within in ear shot of me (knowing that I have a significant hearing loss) that Bernick’s performance was remarkable.
One said that he couldn’t believe that Molloy let it go on for most of the morning; another remarked that the rules changed when (Bernick) took his seat and the prosecution did the redirect and the third said he expected Grace to win but expected “to do so in a fair fight.”