The seats in the federal courtroom in Missoula were packed cheek-to-cheek and more people blocked the doorway to watch the battle Friday by W.R. Grace lawyers to end the largest environmental criminal trial in U.S. history before it ever gets to a jury.
The conductor for today’s unbalanced symphony was Grace’s thousand-dollar-an-hour top lawyer, David Bernick, who had promised to lead a two-prong attack against the government. If successful, either prong would be a fatal blow on the chances of the trial continuing.
All morning was spent with Bernick vigorously working to mold his interpretation of how federal investigators are supposed do their jobs into a justification or an excuse (pick one) for Judge Donald Molloy to banish the entire government team for prosecutorial misconduct.
His primary target was EPA Special Agent Robert Marsden, one of the handful of government investigators who, for more than four years, was finding witnesses, gathering their stories and getting documents and other evidence to verify their allegations for this trial.
Marsden handled several witnesses, but Grace’s gun was aimed at his babysitting of Robert Locke, a former company vice president and key prosecution witness.
Bernick used the shtick that makes him worth what he’s paid – machine-gun-paced questions shooting all over the target as he forces the witness to agree with his view of the world. He even had his flip chart, despite the jury’s day off.
(Does he think that Molloy has a memory problem?)
The Grace lawyer did a fine job of repeating what has been discussed in court for weeks – Locke hates Grace, he’s hard to handle, he wants Grace to fall hard — all things that Grace itself knew long before the indictments years ago, because Locke had filed civil suits against the world-wide company.
What Bennick didn’t do, according to several of the lawyers who packed into the courtroom to watch the performance, was show misconduct.
This was slammed home repeatedly by the skillful cross-examination of Marsden by Assistant U.S. Attorney Timothy Cavan, who was brought in from Billings, Mont., to do the honors.
Cavan is a tall man with a deep, solid voice and a take-no-prisoners style of questioning that challenge Bernick’s statements head on.
This was the first time in the seven weeks of testimony that a government prosecutor directly contested the veracity of Bernick’s tirades. And, watching him, the Grace lawyer seemed uncomfortable that his legal wizardry was being questioned.
In the end, Cavan showed that, despite Grace’s portrayal, Marsden did his job the way government investigators are supposed to.
But the consensus of those watching Friday’s proceedings may not matter. Molloy’s opinion is the only one that matters in the Montana courtroom.
Bernick and Thomas Frongillo, who questioned Marsden without rambling over the landscape, both demanded that the Department of Justice intervene in this trial because of their claims of misconduct.
Bernick also argued the charges against Grace and its five former executives should be dismissed. But he puzzled many when he said if the case were thrown out, the government would appeal, and the trial would be held again.
Molloy was not subtle about his leanings.
He ended the day by talking about an event early in his career, where, as a young lawyer, he “saw federal agents absolutely destroy a home during a search. It was not right. Somebody in the Department of Justice needs to have the courage to do what is right.”
Over the weekend, when I get a transcript of the actual testimony, we will explore Bernick’s other reason for dismissal – the merits of the case.
But Molloy may have all he needs to give the trophy to Grace.