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. “
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.