Molloy rules to not dismiss trial for misconduct

Judge Donald Molloy ruled Tuesday morning that he would not dismiss the W.R. Grace case for alleged prosecutorial misconduct.

The understated announcement came after the prosecution had completed its response to the arguments for dismissal or acquital made by the defense Monday.

Molloy also ruled that Robert Locke, the former Grace executive who was a witness for the prosecution, would be allowed to return to the court for cross-examination by the defense. But, the prosecution will not be allowed to re-direct, and the jury will be instructed to use none of Locke’s testimony when considering the culpability of Robert Bettacchi, one of the co-defendants for whom Locke bore a particular dislike.

Leading up to Molloy’s ruling, the prosecution was tasked with proving to Molloy that they have made enough of a case to allow the jury to decide the fate of Grace and the co-defendants. If the prosecution cannot counter the defense’s assertions presented Monday and convince Molloy that they have enough evidence to support the indictments, the judge can dismiss the trial under Rule 29.

The summary presented by the prosecution before an empty jury box made their case more effectively than has been made in the past nine weeks of testimony.

Government prosecutor Kris McLean began his hour of presenting documents by acknowledging the complexity of the evidence but stated the case really isn’t particularly complicated.

“It is a matter of right and wrong,” said McLean.

He said that the government has proven 82 of the 100 overt acts that support the charges that there was a conspiracy to keep secret the health risks Grace mining posed the people of Libby. That proof, he said, had been shown in a piecemeal fashion because “knowledge and intent are the keys in criminal cases and can’t be proven by direct evidence.”

He proceeded to support that assertion by presenting admitted documents along with a graphic timeline that stretched 30 years from May 1971 to May 2001. Most documents were communications between one or more of the co-defendants and other Grace employees.

McLean stepped through evidence showing that Grace executives were discussing the problems of tremolite among themselves but were not sharing the dangers of tremolite with the public or regulators. A few memos showed that the executives were trying to avoid litigation as early as 1972.

One said, “Failure to get knowledge (about tremolite) could lead to a lack of defense if someone decides to bring up the question,” while a hand-drawn decision tree showed “bad publicity” and “lawsuits” as potential problems for Grace that could stem from health concerns about the company’s products or processes.

In internal communications, Grace told employees to clean with vacuums instead of brooms and to use air conditioners in vehicles traveling Rainy Creek Road because of the problem of airborne fibers. But Grace didn’t tell Mel and Lerah Parker not to sweep with brooms, and no one warned the public about traveling Rainy Creek Road until Paul Peronard, the EPA’s environmental cleanup coordinator, came to Libby.

Most importantly, said McLean, was the fact that Grace lied to the EPA about these and other things on an EPA questionnaire, the Form 104E.

McLean summed up all the documents before passing the baton to Kevin Cassidy.

“It’s that continuity, that concert of action (of the Grace co-defendents) in dealing with the government that culminates in the 104E letter,” McLean said.

Cassidy spelled out the evidence supporting the obstruction of justice counts. For each count, he pointed out which witnesses had provided testimony in support of the government’s case. He pointed to two questions on the EPA’s 104E questionnaire where he said Grace’s answers were lies: “Was vermiculite made available to the public?” and “Did workers go home with dust on their clothes?”

Grace answered no to both questions, but testimony indicated otherwise.

Cassidy said Peronard had depended on Grace’s answers to construct a cleanup plan and so effective cleanup was delayed because of bad information. Not only that, but the mine road was never closed until Peronard showed up and convinced the Kootenai Development Corporation to sell the mine site back to Grace. Four days later, Grace closed the site, again delaying cleanup operations.

Finally, Cassidy pointed out to the judge that other cases of knowing endangerment have been successfully prosecuted without specific samples from the communities.

“You’re not going to have sampling of community exposures, because unlike work environments were monitoring is supposed to occur, communities aren’t aware of exposure problems. They don’t know to have samplers.”

Cassidy concluded his justifications and now must wait for Locke’s testimony to finish before he and the rest of the court can hear Molloy’s decision on the Rule 29 motion. The standard of reviewing evidence is to put the government’s case in a favorable light.

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