Appeal puts Grace trial in limbo

By BRENT SHRUM Western News Reporter

The trial of W.R. Grace and company officials on conspiracy and other charges is likely to be delayed following a decision by federal prosecutors to appeal several orders by the judge overseeing the case.

Last week, the prosecution filed a notice of appeal along with a request that the Sept. 11 trial date be put on hold pending a decision from the U.S. Ninth Circuit Court of Appeals. Prosecutors are seeking a review of Judge Donald Molloy's decisions to throw out the "knowing endangerment" portion of the conspiracy charge against Grace and the company officials, to exclude government asbestos sampling and analysis as evidence based on discrepancies between the asbestos contamination found in vermiculite mined near Libby and the Clean Air Act's regulatory definition of "asbestos," and to allow the defendants to present a defense of being in compliance with Clean Air Act "visible emissions" standards.

In seeking a stay of proceedings in the case, prosecutors noted that federal case law has established that filing a notice of appeal "confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal," and prevents the district court from impaneling a jury. The prosecution also pointed out that it has opposed previous efforts by the defendants to postpone the trial but argued that Molloy's orders limit the government's ability to present its case and allow the defendants to raise a defense that further undermines the government's case.

Molloy granted the stay in an order filed on Monday, noting that the defendants had made no formal objection. He also observed that while he had "insisted on this start date in a desire for a speedy and efficient resolution" of the case, "it appears that desire will be unfulfilled."

In an indictment handed down by a grand jury in early 2005, the company and individual defendants Alan Stringer, Henry Eschenbach, Jack Wolter, William McCaig, Robert Bettachi, Mario Favorito and Robert Walsh were charged with conspiring to violate the Clean Air Act and endanger others by knowingly releasing asbestos into the air as well as conspiring to defraud the government by impeding the efforts of regulatory agencies.

In June, Molloy dismissed the "knowing endangerment" portion of a conspiracy charge on the grounds that the five-year statute of limitations had expired. Federal prosecutors had argued that the defendants' actions after 1999 furthered both the defrauding and endangerment portions of the conspiracy, and a new indictment, issued on June 26, added language to that effect. That indictment was also dismissed by Molloy on grounds that it did not meet statute of limitations requirements.

The appeal may delay both the trial of Grace and five of the individual defendants scheduled for Sept. 11 and a second trial for the other two defendants scheduled to start next March. Molloy granted requests from Stringer and Favorito to be tried separately from the other defendants, finding that evidence to be presented by Stringer and Favorito in their defense might result in prejudice against Grace. He also found that they could be tried together without risking prejudice against one another. The judge denied similar requests for separate trials from the other defendants.

The charges stem from Grace's operation of a vermiculite mine near Libby from 1963 until 1990, during which time the defendants are accused of withholding evidence regarding asbestos contamination in the vermiculite ore.