andrew schneider investigates

April 29, 2009

An excitement-filled day as prosecution rests and defense for W.R. Grace calls its first witnesses.

A lot happened in the Missoula courtroom of Judge Donald Molloy Tuesday. I’m just not sure what it all means.

I’m going to bow to learned lawyers, reporters smarter that I am and just about anyone else to try to sort out the winners and losers in the criminal trial of W.R. Grace.

Here’s what I do know.

Molloy began the day two hours before the jury was seated with prosecutors Kris McLean and Kevin Cassidy defending their case to the judge who had been asked to toss it out for lack of merit and proof.

“This case looks like a complex matter, but at its essence it’s really quite simple. It’s a matter of right and wrong,” said McLean.

They had shown Grace’s wrongs, or at least as many as they could with Molloy’s severe restrictions on case he’d permit. McLean said there are 100 acts that support the charges of conspiracy, and the government has proven 82 of them.

Grace lead lawyer David Bernick interrupted and tried to get Molloy to hurry up the prosecutor’s presentation, if not shut it off completely. “It’s just a bunch of documents,” he told the judge, who overruled him.

And with precision and straightforwardness that was missing though much of the past eight weeks, the prosecutors methodically flashed through a tick-tock of Grace documents that covered 30 years.

Maybe the gang from Grace just had gas, but a couple of the defense lawyers winced as McLean adroitly laid one document upon another, showing documents that had been presented before but now offered in a more telling manner.

Before calling in the jury, Molloy made a blitz of brief announcements and shocked many in the courtroom by announcing first that he had decided that he would not dismiss the case for prosecutorial misconduct as Grace’s defense team had requested.

I had always believed that judges always tipped the players in their cases about major decisions they were about to make. But most of the lawyer and defendants whose faces I could see looked bewildered or stunned.

In the ruling on the decision that he released last night, Molloy said, “The parties have put before the court a range of remedial options.”

– The most drastic is to dismiss the charges, either with or without prejudice. But “dismissal on the basis of prosecutorial misconduct is not warranted here,” the judge wrote.

– The next option is for the court to declare a mistrial. “The defendants have shown no interest in a mistrial, as it would allow the government the opportunity to start anew and, in essence, benefit from its failure to fulfill its disclosure obligations by receiving the proverbial second bite at the apple,” his honor explained.

– The third possibility is to strike the testimony of prosecution star witness Robert Locke in its entirety as a remedy for the government’s alleged violations of full disclosure requirements of Congress and the Supreme Court.

Molloy passionately believes that Locke lied while testifying, and information about him was withheld from the defense until late in the trial.

The judge said that the defense would be given another shot at Locke for a very limited cross examination, and he would tell the jury that it must ignore much of Locke’s testimony on senior Grace vice president Robert Bettacchi, who Molloy believes was “targeted” by Locke.

With the jury seated, Molloy told them a bit of what they’d missed earlier Tuesday and all day Monday, and at 10:18 on the second day of the eighth week of testimony, the prosecution rested.

Bernick wasted no time bringing the first defense witness, former Grace executive VP Elwood “Chip” Wood.

Wood was a good witness, got few laughs, played well to the jury, but rarely looked at them. Bernick directed him well as he walked the jury through a list of actions Grace had done involving its tremolite asbestos problem.

He asked about the government’s charges, but Wood denied that there was any conspiracy.

“I can’t imagine that I would not have been aware of some such conspiracy if it were happening,” he said.

Wood vigorously denounced and discredited a key memo from Locke, which talked about how Grace would stall or thwart an investigation of the Libby mine by NIOSH, the federal worker safety experts.

Wood said he learned of Locke’s memo, “did a slow burn” for weeks and added, “It corrupted everything we were trying to do.”

Bernick then guided the former top boss into explaining that Grace had notified the federal government of the health problems at the mine.

Wood said that the study was “hard evidence that you have an asbestos related problem.”

In his cross-examination, prosecutor Cassidy skillfully regained some of the lost ground when he showed that 10 years after Grace learned that 41 percent of its Libby miners – who had over ten years on the job – had asbestosis, the company was still telling EPA that it had no data to document there was a health problem.

He also got Wood to admit that he had hired Locke for another job when Wood was made a president of another Grace operation, and he volunteered that Locke did good work.

When Locke was called to the stand for the questioning ordained by the judge, Bernick was ready and far too eager. His grilling of Locke was merciless.

He pushed Locke until he admitted that he was wrong when he had testified weeks earlier about the number of meeting he’d had with the prosecution team over the past five years.

He repeatedly hammered away trying to get Locke to admit that he had a “special relationship” with the prosecution. Four, six, eight times. More. And Locke wouldn’t be forced to use Bernick’s pet phrase.

Locke and the jury were both dismissed.

After the jury left, defense lawyers for Bettacchi and William McCaig petitioned Molloy to free their clients because of the lack of evidence since much of Locke’s testimony was stricken.

The guess is that by the end of today, the number of defendants will be reduced again. The judge says he has several pending motions to address.

The last surprise of the day was when the defense said it should rest its case by next week.


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