Two defendants get separate trial in Grace case

Former Libby vermiculite mine manager Alan Stringer and former W.R. Grace chief legal counsel O. Mario Favorito will be tried separately from the company itself and five other individual defendants, a federal judge in Missoula has ruled.

W.R. Grace and seven company officials are charged with various criminal offenses including conspiracy, Clean Air Act violations and obstruction of justice stemming from alleged failure to disclose what they knew about the dangers of asbestos contamination at the mine. The case is scheduled for trial starting Sept. 11 and is expected to last up to four months.

All seven individual defendants filed motions to have their cases tried separately from the company and in some instances other co-defendants as well. Some of the defendants contended that they would suffer from the introduction of evidence and testimony regarding offenses in which they were not involved, and others held that their rights to present evidence in their defense — evidence that they acted on the advice of legal counsel — would conflict with W.R. Grace's claims of attorney-client privilege.

In a 46-page ruling issued on Friday, Judge Donald Molloy found that the claims of defendants Robert Bettacchi, Henry Eschenbach, Robert Walsh, Jack Wolter and William McCaig that they would suffer from "guilt by association" did not merit separate trials. Molloy indicated that he has faith in a jury to consider each defendant's guilt or innocence individually.

"Jurors are called upon to serve in accordance with the law and to decide what facts have been proved and whether they have been proved beyond a reasonable doubt," he wrote. "Citizens do not assume this mantle lightly. Doubts and skepticism may be warranted in measuring the way other parts of government work, but they are unwarranted with Montana juries."

Stringer, Favorito, Eschenbach, Wolter and Bettachi have indicated that they will rely on an advice-of-counsel defense that they say can only be established through the presentation of documents and testimony over which Grace claims attorney-client privilege. They held in their motions for separate trials that they could not present the necessary evidence in a single trial with Grace.

Based on a review of documents submitted by defense attorneys, Molloy determined that only evidence to be presented by Stringer and Favorito might result in prejudice against Grace. He also found that Stringer and Favorito could be tried together without risking prejudice against either one. He ordered that the two be tried together, separately from the other defendants, starting March 19, 2007.

Molloy has not yet ruled on a defense motion to dismiss a new conspiracy count handed down in June by a grand jury. The new indictment reinstates a portion of the charge dismissed Molloy on June 8 under the five-year statute of limitations.

Molloy dismissed the portion of the charge that alleged the defendants conspired to violate the Clean Air Act and endanger others by knowingly releasing asbestos into the air. He left in place a portion of the conspiracy charge alleging the defendants conspired to defraud the federal government by impeding the efforts of regulatory agencies.

The new indictment charges that the defendants' actions to obstruct federal agencies in 1999 and 2000 resulted in additional releases of asbestos into the air. In their motion for dismissal, defense attorneys noted that Molloy dismissed the previous charge with prejudice — which bars prosecution on the same offense — and contended that the charges in the new indictment are essentially the same as those thrown out last month.