It took an hour for Judge Donald Molloy to give the jury its instructions.
Most sounded like a straight lecture on the eight criminal charges in the indictment, and he asked both the defense and prosecution to object or accept each of the 50-plus instructions. Grace’s side objected to many of them to reserve a right of appeal. The government didn’t like a handful, but Molloy said the language stood as written.
Since the judge barred the public and press from point-by-point debate with the lawyers last night we may never know what arguments were made.
There were one or two surprises in the judge’s order to the jurors. He told them that they should be aware that EPA headquarters did not give Grace lawyers email from John Malone, a headquarters’ pollution policy worker who repeatedly denounced the actions of Paul Peronard and his emergency response team.
Several of Malone’s emails and statements had been shown to the jury yesterday, and the defense treated them as the Holy Grail in proving that everything EPA had done was wrong and not based on science.
What the jury will not be told was that Malone retired years ago, and the agency’s computer system routinely purges emails that old. Nor will they learn that Malone’s science background was minimal compared with scores of others in his department who supported the Libby cleanup.
Nevertheless, Molloy made it sound like the unavailable email was concealed intentionally to the detriment of two of the three remaining defendants — Jack Wolter and Robert Bettacchi.
The judge also told the jury to ignore comments made by prosecution witness Dr. Alan Whitehouse when he predicted that illnesses would continue to surface. The jurors were also told to not consider Whitehouse’s statements on the source of the asbestos-related disease that has killed and sickened hundreds of his patients.
Whitehouse has and continues to diagnose and treat. When the mine was still open Grace itself sent miners to Whitehouse.
So you figure out why the opinions on the source of the disease from this highly experienced pulmonologist should be something the judge wanted kept from jurors trying to decide guilt or innocence.