Feds file against venue change

Federal prosecutors have filed a response in U.S. District Court rejecting arguments by W.R. Grace that the criminal trial against the company and seven former employees should be moved out of Montana.

The document, filed Oct. 14, asks the court to deny the defendants' motion for change of venue without hearing oral arguments. A hearing on the matter is set for Dec. 1 in Missoula.

Grace earlier asked for a change of venue because of what it called "six years of inflammatory coverage" by the news media that "vilified and demonized the defendants." The company's attorneys said relocating the trial is the only way to have an unbiased jury. However, government attorneys said in their response that press coverage has not been inflammatory or prejudicial, specifically citing stories in The Western News which account for 25 percent of the Montana newspaper articles offered as evidence by Grace.

"The majority of proffered examples of press coverage are objective, factual, and contain no mention of the individual defendants by name," they wrote. "The Constitution does not require a jury comprised of people who do not read the newspaper; it requires a jury of people who have not formed unshakable opinions and will base their verdict on the evidence and the law."

Federal attorneys noted "the long-standing constitutional principle" of trying criminal cases in the district in which the crimes allegedly occurred.

In their motion, Grace attorneys said media coverage includes more than 1,900 print articles, "myriad" television broadcasts, two documentary films, and two books.

Government attorneys replied that the intensity of Montana press coverage can't be measured solely by the number of articles.

"When the articles were published must also be taken into account," they wrote. "Ninth Circuit case law is clear — the passage of time between when the majority of pretrial publicity of this case occurred (in 2000 and 2001) and when the jury will be selected (September 2006) mitigates the prejudicial impact, if any, of such publicity."

There has been "relatively little" media coverage since the indictments were announced, according to the government's response.

"Accordingly, a finding of presumed prejudice based on the media coverage is not warranted," federal attorneys wrote.

Grace's petition to move the trial lists Boise, Minneapolis, Denver, Salt Lake City and Seattle as suitable sites.

"The coverage has carried particular force in Montana where it has aroused hometown sympathies and provoked a community outcry against the defendants that echoes throughout the state," according to the petition. "The vast majority of the coverage of this matter has been and continues to be biased against the defendants, going well beyond the reporting of the unadorned facts of the case to present the defendants as knowing and intentional killers."

A hearing on the request is set for Dec. 1 in Missoula.

Grace attorneys say more than half of the prospective jurors in Montana have already decided the defendants are guilty. They add that 90 percent of those who believe Grace is guilty and 89 percent of those who believe the individual defendants are guilty hold their opinions with "great intensity."

The motion quotes Edward Bronson, professor emeritus of political science at California State University-Chico, who has testified as an expert witness in change-of-venue cases 112 times. He called media coverage of the Grace case "among the most inflammatory I have ever encountered, full of pathos and anger," according to the motion.

The document adds, "It is already evident that the media coverage of this case has provoked strong and emotional condemnation of the defendants in Montana. Possibly the most powerful example of this sentiment is the collection of crosses erected each Memorial Day in Libby's town cemetery since 2001 to mark the purported deaths of Libby asbestos victims."

Indictments in the case were handed down in February. The trial was initially scheduled for May 2006, but in a March 15 scheduling order Judge Donald Molloy of the U.S. District Court in Missoula set a new date of Sept. 11, 2006.

The company and its current and former officials are charged with offenses including conspiracy, Clean Air Act violations and wire fraud.