andrew schneider investigates

May 1, 2009

The Grace trial is almost over, but Judge Donald Molloy can change the outcome even after the jury decides.

Filed under: Asbestos,Government & corporate wrong-doing,W.R. Grace — Andrew Schneider @ 14:13

Two workdays and counting until the jury in the W.R. Grace criminal case is presented closing argument and then huddles to render its justice.
The past week was a kaleidoscope of colors and emotions as the defense rushed to wrap up its arguments of innocence to the jury.
Charges were dropped against two Grace executives because the restrictions placed on the prosecution left they unable to get a conviction “beyond a reasonable doubt.”  But for a few fleeting moments the battle was overlooked as human emotion took over – tears, hugs for those left behind and even handshakes for those who indicted them in the first place.
Judge Donald Molloy was far more tempered and professional in his verbal handling of the prosecution, which may have had everything or nothing to do with much stronger and better-organized performances by Asst. U.S. Attorneys’ Kris McLean and Kevin Cassidy.

Molloy got a bit feisty when the prosecution made references to having to conduct the trial under severe limitation on what can be presented to the jury.
“I’m not making this up. I don’t go back in my chambers and say, ‘Gee, how can I screw this thing up?’ I’m trying to follow the law,” the self-described Irishman fired back.
He also took umbrage at media reports that he was retaliating against the prosecution for earlier actions by the Montana U.S. Attorney’s office.
And there was one point during a break on Thursday where Molloy — with all the patience and geniality we expect in our storybook judges — had a gentle five-minute or so scholarly exchange on a point of law with Cassidy. Not snarky at all.  I would like to have seen more of that side of his honor. I understand in other trials it was the norm.
But back to reality, the fact that Molloy has let the trial run its course is a big deal and surprising to many on both sides of the case. His announcement on Monday that he would not do as the defense asked and dismiss the case for prosecutorial misconduct, was invigorating to the government.
Of course no one knows what the jury will do, especially a Montana jury and it would be great to think that the outcome of this case will fall those men and women who suffered so long in the jury box. But remember, they can only do what the judge permits in his extremely detailed instructions to them.
He will tell the jury precisely what evidence and testimony they may or may not consider and which of the multiple criminal counts Molloy believes are in still in play. This alone can determine the outcome.
Molloy has repeatedly said he did not believe the government had come close to proving the guilt of the accused, especially on the most serious charges — conspiracy to defraud the government, knowing endangerment and obstruction.
For those of you who have lost your scorecard, remember, there remains in play one more motion to acquit, this from the defense is based on the merits of the case. Molloy has yet to rule on this.
This may come as a shocker to you, but even after the jury does its sworn duty, Molloy has a legal right to intervene further.
Unfortunately, my concerns about the fairness of this trial and the judge’s action are no secret, so let me share with you what a more impartial and clearly learned source — University of Montana law Prof. Andrew King-Ries — wrote yesterday.
He cites Rule 29(b), which allows a judge to let a case go to the jury for a decision and then permits the same judge to dismiss the case in the event the jury returns a verdict against the defendants.
“While (Molloy) stated that he had not made up his mind on the issue, it was his ‘inclination’ to let the jury make a decision and reserve his ruling on acquittal until after the verdict,” the professor wrote.

“In other words,” King-Ries added, “if the jury convicts, (Molloy) would consider whether to overturn the convictions of the defendants.  If the jury acquits, then (the judge) would not have to make a ruling on the defendants’ motions for acquittal.”
King-Ries and journalism Prof, Nadia White have had teams of both law and journalism students covering the trial non-stop, filling the air with blogs and Twitters, or Tweets, or whatever they’re called.
(In a totally unrelated note, I found it fascinating that, in the name of transparency, Molloy has permitted the real time blogging and other cyber transmissions from his court. Yesterday, a judge hearing a major bankruptcy case one floor below ordered the score or more of lawyers in attendance to immediately to stop sending tweets.)


1 Comment »

  1. If the jury convicts, and the trial judge overturns the verdict and finds the defendants not guilty, I assume such action is appealable by the prosecution?? (whereas, an outright jury acquittal is not appealable)

    Ironhorse. I’m told that it all depends on the language a judge uses. If he “dismiss with prejudice,” I’m told it means no appeal is possible, according a Grace lawyer. And that is precisely what some expect the judge to do.
    I’m not one of them. I cannot believe that he would take that chance. But, he is a Navy carrier pilot and the ones that I’ve covered over the years have been known to take a risk now and then. a. schneider

    Comment by Elmer F — May 1, 2009 @ 15:33 | Reply

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