andrew schneider investigates

May 8, 2009

Jury acquits W.R. Grace of all criminal charges. Many wonder how it happened.

Filed under: Asbestos,Government & corporate wrong-doing,W.R. Grace — Andrew Schneider @ 16:05

A juror wept as a clerk stood before Judge Donald Molloy’s bench and reported that W.R. Grace and Co. and three of its former executives were not guilty of charges brought by the government in the nation’s largest environmental crime trial in history.

I’d love to know why she was crying. She wasn’t alone.

The trial took ten weeks, and the clerk’s reading of the verdicts of the jury’s six men and six women was done in just 3 ½-minutes.

Saying it was the longest trial he’d ever been involved in, Molloy dismissed the jurors , who deliberated for less than two days,  and said: “It is I think truly a reflection of how we are supposed to govern ourselves. Ultimately it is the people of the community who have to make a decision.”

The verdict, joyful to some and painful to many, was no surprise. Most of the observers in the court gallery expected, at the most, a guilty verdict on only one of the eight counts, such as obstruction of justice.

The heavy charges of conspiracy and knowing endangerment that carried long prison sentences were taken out of play early as Molloy imposed repeated restrictions and limitations on what evidence and witnesses the prosecution could use.

“It’s unfortunate that so much evidence was withheld from the jury by the district court’s evidentiary rulings, including some of the most compelling internal memos written by W.R. Grace officials about the harmful effects of their mining operations,” said David Uhlmann, who led the U.S. Justice Department’s environmental crime section when the Montana U.S. Attorney’s office sought to bring the charges in this trial.

Uhlmann, who is now professor and director of the Environmental Law and Policy Program at the University of Michigan Law School, added: “Many questions now linger about what would have happened if the trial had been conducted in a manner that was fair to everyone involved. “

Editorial cartoon by Stephen Templeton The Flathead Beacon

Editorial cartoon by Stephen Templeton The Flathead Beacon

Speculation is rampant on why the government lost today.

We can talk about the prosecution being heavily outnumbered.

It had fewer than a dozen lawyers, investigators and support personnel. Grace fielded 50 or more and almost daily swamped the court with motions and briefs cranked out by their paralegals and junior lawyers. The prosecution had most of its team working to midnight and beyond almost every night just to respond to the avalanche of paper.

We can weigh the impact of Molloy sitting moot day after day while Grace’s superstar lawyer David Bernick hammered away with bogus, inflammatory accusations of misconduct by members of the prosecution team.

We can try to compare the effectiveness of Bernick’s fiery, dramatic, comedic performances as he trashed witnesses and prosecution alike to the low key, soft spoken questioning of lead Prosecutor Kris McLean.

For weeks, lawyers who had watched McLean in earlier trials said his “solid delivery” would win the day. Two Montana-based lawyers working for Grace as local counsels, told me repeatedly that a Montana jury would never be impressed with Bernick’s antics and “scrawling over whiteboards larger than himself.”

I’m sure it was only a coincidence the jury foreman was the same man who almost always laughed at Bernick’s attempts at humor.

My best guess for the jury’s verdicts was the blatant clues of disdain that Molloy heaped upon McLean and his case day after day.

Uhlmann said, “It’s also hard to know how much the jury was influenced by the district court’s hostility to the government’s case.

”It always was going to be a difficult case, and the way the trial was conducted made it all the more difficult.”

The top environmental crime lawyer said it was not impossible for the government to win.

“Jurors often can see through the smoke screen of judicial hostility and defense counsel’s antics, but it is hard to fault the jury in this case. On the record before them, and with everything else going on in the courtroom, they did the best they could,” he explained.

From the very start, Molloy was making his mark on the prosecution’s effort. When U.S. Attorney Bill Mercer tried to announce the indictments four years ago, Molloy would not allow him to do it in front of the federal building. Mercer, who is openly hated by Molloy, had to hold his press conference on the steps of the county courthouse.

Of course, the reason for the not guilty verdicts may just be that W.R. Grace was totally innocent of all aspects of the poisoning of Libby and its people.

Wall Street thinks so. Shares of the company rose more than 30 percent on the news of the acquittal.

“We at Grace are gratified by today’s verdict,” said company president Fred Festa. “We always believed that Grace and its former executives had acted properly and that a jury would come to the same conclusion when confronted with the evidence.”

Gayla Benefield, a longtime activist in the fight against Grace said, “They’ve gotten away with murder again, and that’s just the way it will always be.

“I think of my family and friends, dozens of them, who died because of exposure to asbestos from Grace’s operation and I really pray for the day that someone, anyone, can tell me why they are not guilty,” she told me this afternoon.

I’m going to give everyone a couple of weeks to cool down and then I’ll try to talk to the jurors, witnesses and lawyers on both sides to see if I can find out what really happened.

Meanwhile, in Washington, D.C, U.S. Sen. Patty Murray said, “Today’s disappointing verdict is a reminder of the urgent need to ban asbestos in America. The families of Libby, Montana have suffered enough, and my thoughts are with them today.”

For more than seven years, Murray, a Washington State Democrat, has fought to get a complete ban of the deadly fibers.

“Asbestos destroys lives, and the tragedy at Libby has shown that it can devastate entire communities. We must move forward to protect America’s workers and families once and for all,” said Murray.

Uhlmann cautions that no one should lose sight of the fact that it was a tremendous accomplishment to investigate and prosecute Grace.

“While the outcome is disappointing, the only tragedy in this case is what happened to the town of Libby, Montana, “he said.



  1. We just read about the sad verdict in the W.R.Grace trial and the devastating impact it’s had on Libby.

    Our hearts go out to the residents of Libby who did and continue to live there and all those, like yourself, who brought this tragedy to the attention of the public and government and tried their damnnest to hold those responsible accountable.

    Your efforts were not in vain…it was truly the good fight and for all the right reasons.

    It’s sad that justice was not on your side this time.

    Tony / Patty Cutraro

    Comment by Tony /Patty Cutraro — May 9, 2009 @ 12:40 | Reply

  2. “Justice” and … “The American Way”?

    by Dana Brown

    I am outraged and enraged. I am Incensed. I also fear that what is considered “justice” in this country is going down the toilet. If judges are not going to seek justice, they stop being judges. Is the determination of justice now left up to the victims? That is exactly where we are going.

    I place the blame squarely where it lies: Judge Donald Molly. He is the problem, like many of the black robe gang that is beyond accountability. “Judge” Molly is an example of the disease in the society of these United States. His kind is the reason why the guilty go free. Why did you bother with the trial, “Judge” Molloy? If you decided right out of the block with your statements that there “were no victims of a crime” identified? Why did you not recuse yourself from the case with your known open hatred and contempt for U.S. Attorney Bill Mercer, which clearly resulted in a biased and rigged case? You courtroom manners to the prosecution iiilutrate you loss of judicial composure and temperament. Why hold a trial and exclude so much of the prosecution’s evidence? If you are going to have a trial so one sided, and if you believed that wreckless example of Jurisprudence you put on was necessary and correct, WHY DID YOU NOT SIMPLY DISMISS THE CASE???????

    “Justice” was simply not on the menu during the hearing of this case. It was apparently the last thing on “Judge” Molloy’s mind, during this whole trial. Why was most Paul Peronard’s and Aubrey Miller’s testimoney not allowned? It was so bad that the single most conviencing witness, Chris Weis would have had so much censoring on his testimony

    The answer is you are a coward. You did not want to set a precedent. However you did set a precedent. The precedent follows the exact blueprint that has been penalizing citizens of the United States for the last 30 years: citizens have to follow laws and coprorations don’t. Citizens and our society at large is simply not protected by the law anymore. Another precedent that “Judge” Molloy set in this case is that no matter how brazen or henious the crimes committed, if the “victim” of the crime is a worker or a general citizen, and that crime is environmental or safety law related, it is not a big deal. If it has to do with asbestos, it is even a lesser problem leagally speaking.

    All the governmental agencies let you down, and in the final betrayal, the Federal Courts let you down.

    What do you do?

    I have personally have 2 exposure incidents to W.R. Grace vermiculite.

    Comment by Dana Brown — May 10, 2009 @ 06:18 | Reply

  3. Dana: As a resident to Libby add my name to the list of people who believe that this was the right decision. You went off on Judge Molloy as the problem for this case – but at the end of the day the federal government could not convince 12 fellow Montanans the Grace did anything wrong. Im fine with the decision and looking forward to Libby becoming a stronger community.

    Comment by Jerry Heard — May 10, 2009 @ 17:58 | Reply

  4. Mr. Heard,

    I am assuming that you must not have any family members that have been affected by the practices of W.R. Grace in Libby. All of my husband’s immediate family members, with the exclusion of one child, all have complications from asbestosis that they contracted from the mine in Libby. My husband worked there for a time before we were married, when his son was just a toddler, who also appears to have complications from asbestosis. My husband was told that the contaminates (dust) at the mine were “no big deal” that you could in effect “eat this stuff” and that it would not harm you. It is no picnic living with the shortened breathe, no energy and the constant threat that you may one day be dealing with mesothelioma. But, no concern of yours, is Mr. Hread? You just want Libby to get past the inconvience of this mess. Let us pray that no one else in Libby, including anyone in your own family Mr. Heard, winds up getting anymore life-threatening gifts from W.R Grace; because, it is woefully apparent that justice will never play any part in helping Libby to heal or “become a stronger community”.

    I realize that this is only “my” opinion, but if Grace Management would instigate and allow a rumor to persist that their by-product was so harmless, then what other misinformation have they been capable of spreading to the detriment of their unsuspecting employees and their families?

    I am sorry, but whenever it comes to W.R. Grace, not one deserving victim ever seems to get justice. The only ones that get anything at all, other than Grace, is their huge stable of lawyers. I know that they are only doing what they have been told to do – win the case, but I cannot even begin to imagine how they sleep at night. If they sleep well at night, I beleive it is because they must have no soul and, therefore, have no God that they have to account to.

    Comment by Subesan Moles — May 11, 2009 @ 11:04 | Reply

  5. That is my position – I certainly don’t need a lecture form someone who does not even live here…. As far as not being effected – take a stroll in the Libby cemetery . 2 of the 3 Heard’s have died from asbestos exposure. Of course they were hard drinking , hard smoking, dead at 79 and 81, but Im sure you can make a case for asbestos exposure.
    I stand with a lot of people in Libby who, as you put it ” just want Libby to get past the inconvience of this mess.”. Yes we do. we will move forward and make Libby a better town.
    As far as Grace…. when they were here we were a hell of a town. That will never come back. A lot of us are looking forward to the EPA finishing the clean up. With there help we are revitalizing our industrial park. The grace era is over. They won and we move forward – stronger, smarter, determined to make Libby successful into the future.
    One last thing – get the hell off your victim horse and climb up on the survivor horse, its a much better ride.

    Comment by Jerry Heard — May 11, 2009 @ 12:33 | Reply

  6. In response to the posters that have the “small town view” that people “not from around these parts” should just keep their mouth shut.

    This is a “national” case, it is not just about Libby, Montanna. That vermiculite was shipped everywhere. I myself put that crap into lightweight concretes for insulating and poolbases. Mixed it up without masks and I was never in Libby, but I probably unloaded almost 2 dumptrucks of green W.R. Grace bags into cement mixers in 1987.

    So yes, this does affect more than just the people in Libby.

    The precedent that the trial sets is also national in its implication.

    If it has to do with asbestos or worker safety or environmental release knowingly and willfully.

    It is simply not crimial, it is civil.

    Comment by Dana Brown — May 12, 2009 @ 04:47 | Reply

  7. My exposure to Libby vermiculite was via another corrupt and criminal corporation, Norfolk Southern. That exposure was in Kalamazoo, Michigan in a 120 year old railroad building. Libby vermiculite is in millions of attics and walls across North America. As those structures age and require maintenance or structurally degrade, the legacy of Libby vermiculite will continue. The death toll will continue to mount as those responsible go free. It’s our own little Chernobyl that will only get worse.

    Comment by Scott R. Hite — May 12, 2009 @ 17:14 | Reply

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