Grace defendants seek separate trials

By BRENT SHRUM Western News Reporter

Attorneys for W.R. Grace and seven former and current company officials charged in a federal criminal action are seeking to postpone the scheduled September 2006 trial date by at least four months and to hold separate trials for each defendant.

In a motion for a continuance filed March 10 in U.S. District Court in Missoula, defense attorneys argued that their clients' constitutional rights to due process and effective assistance of counsel have been jeopardized by the government's non-compliance with court deadlines and by the enlargement of the trial far beyond its original scope.

The company and its officials are charged with offenses including Clean Air Act violations, conspiracy and obstruction of justice.

The attorneys pointed out that the indictment covers a period of 26 years and alleges more than 100 overt acts while the case also presents "a host of novel and difficult legal issues." They wrote that "after decades of public controversy and civil litigation over the health effects of exposure to asbestos, this is the first-ever attempt to brand a company and its managers as criminals for allegedly misleading the government and exposing the general population."

In March 2005, when the court set a trial date of Sept. 11, 2006, the government indicated that it planned to call 60 to 80 witnesses and several experts and would need three months to present its case, the defense attorneys pointed out. By September 2005, the government's witness list had grown to 233 witnesses, including 13 experts.

The defense attorneys also argued that they had received only 150,000 of an estimated 1.4 million pages of discovery materials from the government along with only a fraction of 550 expected medical files.

In separate motions, attorneys for individual defendants Alan Stringer, Robert Walsh, William McCaig, Henry Eschenbach, Jack Wolter, Robert Bettacchi and O. Mario Favorito are seeking to have their clients' trials severed from case against the company.

Stringer, who served as the Libby vermiculite mine's superintendent from 1981 to 1988 and general manager from 1988 to 1994 and returned to Libby as the company's representative in late 1999, argued through his attorney that evidence of his innocence is contained in communications with Grace legal counsel that the company asserts is protected by attorney-client privilege. Stringer has a constitutional right to present the evidence in his defense while the company also has a right to exclude the same evidence from its trial, the motion contends.

The attorney for Walsh, a former Grace vice president, argued that his alleged violations all took place during a six-month period in 1983 and that if his trial is not separated, Walsh would be subject to months of potentially damaging testimony that involved events occurring from six years before to 13 years after his involvement.

Similarly, the attorney for former Libby mine general manager William McCaig noted that the allegations against his client are primarily confined to the period of 1981 to 1983 and a combined trial would risk the "spillover" of prejudicial testimony regarding the company and the other defendants.

Attorneys for former company health official Eschenbach, former executive Wolter, current executive Bettacchi and company legal counsel Favorito are seeking extensions of time to file motions for separate trials. All are contending that the issue regards documents and testimony potentially protected by attorney-client privilege and/or work-product doctrine held by W.R. Grace and that the company has indicated that it intends to invoke its privileges and seek to exclude the documents and testimony from evidence.