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Frustrated judge calls off court for day in Grace trial

by Carly Flandro & UM School of Journalism
| March 2, 2009 11:00 PM

An agitated federal judge called court off for the day on Monday after exchanging words with the lead government attorney in fallout from the 9th Circuit Court’s reversal of a decision regarding the allowance of Libby witnesses into the courtroom.

Judge Donald Molloy called Monday morning’s court session “a waste of a day” in the environmental case against W.R. Grace & Co., and five executives.

Molloy told a courtroom of attorneys and press – with no jury present – that the case was unnecessarily delayed and the jurors’ overall time away from their jobs was prolonged. Molloy and the prosecution’s Kris A. McLean had a spirited discussion about the rights of Libby victims/witnesses who want to watch the trial.

Mel and Lerah Parker are at the center of this issue. The Libby couple, both of whom have been diagnosed with asbestos-related diseases, wanted to watch the unfolding of the U.S. case against Grace. But because they are also witnesses for the government, Molloy ruled they could not be present in court until after their testimony – which was scheduled to come at the end of the prosecution’s case.

The Parkers’ appealed Molloy’s decision to exclude victim-witnesses from the courtroom and the 9th Circuit Court of Appeals reversed the decision. But on Monday, discussion between Molloy and McLean made clear that that right wouldn’t come without consequences affecting everybody involved.

The 9th Circuit Court issued a mandate requiring Molloy to question the remaining 26 witnesses to ensure that, if they did listen to the trial before their testimony, what they heard would not affect or change their own actions on the witness stand.

So, Molloy came prepared to question dozens of witnesses and none were in court. McLean said that for various reasons, none of the witnesses were able to come on Monday. McLean also said that, in light of the lengthy process and the time it would consume for the victim-witnesses to be allowed in court, the Parkers were going to waive their right to be present.

But, Molloy said, that wasn’t enough. The court orders had already been issued.

“I told you four years ago that if (victim-witness exclusion) was going to be an issue, raise it,” Molloy told McLean. “Now, at the last minute, this goes up to the circuit and now we have a mandate telling me what to do. And now you’re telling me to ignore the mandate.”

Molloy said whether the Parkers waived their right or not, he had to follow the lengthy procedure outlined in the court order.

“It says the court shall. I don’t have any room – shall,” he said.

Molloy advised McLean that, to avoid the now-required process of questioning the remaining 26 witnesses, he would need to call the Parkers as his next witnesses. That way, their right to be in court would be renewed at the end of their testimony.

However, that throws a kink in the prosecution’s game plan. The Parkers were set to be the last witnesses to testify. McLean also has an obligation to file a pleading to the 9th Circuit to withdraw the mandate, Molloy said.

“This case has been going on for too long. It’s been delayed, delayed, delayed, and I’m tired of it,” Molloy said. “This case is going to be tried, and it’s going to be tried according to procedure.”

Court was scheduled to reconvene on Tuesday to complete the cross-examination of Paul Peronard, former EPA Libby team leader, before considering the Parkers as witnesses.

Under careful questioning by prosecuting attorney Kevin Cassidy, Peronard spent Thursday explaining the EPA’s investigation of Libby and Grace’s alleged attempts to mislead and obstruct the EPA’s efforts.

After the prosecution finished its initial examination, Grace attorney David Bernick poked holes in the obstruction charges against his client, at times causing Peronard to appear confused and irritated.

At one point, Peronard told Bernick, “Your words, I think, are nonsense,” in relation to an argument over Grace’s waste disposal techniques.

(University of Montana journalism students Kelsey Bernius and Nate Hegyi contributed to this story. For their continuing online coverage, go to: blog.umt.edu/gracecase ).