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Grace trial going into 11th week

by University of MontanaLaura Lundquist
| May 5, 2009 12:00 AM

Judge Donald Molloy dismissed two defendants, ruled on two critical motions and revealed a deadline for his ruling on another last week in the environmental trial of W.R. Grace & Co.

The prosecution said that they didn’t have enough evidence to prove their case against Robert Walsh on April 27 and defendant William McCaig on April 30. Three defendants remain to face the charge of conspiracy – Robert Bettacchi, Jack Wolter and Henry Eschenbach.

Molloy ruled on April 28 that there were insufficient grounds to dismiss the trial due to prosecutorial misconduct. The previous day, Grace attorney David Bernick argued that the testimony of a number of the prosecution’s witnesses had included “overwhelming and uniquely pervasive” perjury.

But Molloy said in his opinion, “Incompetence is not bad faith. Poor planning is not malice. A systemic flaw is not always flagrant conduct. And the damage, while serious, is not irreparable.”

Molloy ruled that he would not strike Robert Locke’s testimony, but that the jury could not use it in determining Bettacchi’s guilt. The defense was allowed only limited cross-examination of Locke, without re-direct. Also, all evidence introduced through Locke was allowed to remain as part of the case.

With the Rule 29 motion to acquit hanging over the court for the past 10 days, Molloy finally said on April 30 that he would reserve his ruling until after the jury reaches a verdict. If Molloy decides to acquit under Rule 29, the prosecution may appeal the decision to the Ninth Circuit because Molloy waited until after the jury had reached its decision.

The defense team began calling witnesses this week and plans to conclude its presentation by Wednesday. The next day, the jury will hear closing arguments and possibly enter deliberation by Friday.

Bernick used former Grace executive vice president Elwood “Chip” Wood to counter the conspiracy charges and some of Locke’s testimony, asserting Locke’s memos were inconsistent with Grace policies. Then Bernick got a chance to question Locke and argued that he had a “special” relationship with Robert Marsden, an agent for the Environmental Protection Agency, in an effort to discredit Locke.

A quick succession of defense witnesses moved through the courtroom over the next couple days. Many testified about details that would deny the count of conspiracy – former Grace environmental engineer Randy Geiger; Kathryn Coggon, lawyer for Grace who dealt with the EPA’s 104E request; Lawrence Albert Dolezal, former Lincoln Country commissioner; Eric Moeller, former Grace geologist; and Mike McCaig, son of the now dismissed William McCaig.

The testimony of Dale Cockrell, lawyer for the Kootenai Development Corp., and Patrick Platenburg of the Montana Department of Environmental Quality went against the knowing endangerment counts regarding the sale of Grace property.

Suresh Moolgavkar testified to oppose Dr. Aubrey Miller’s evidence with regard to the second knowing endangerment count. In order to counter one of the obstruction of justice counts, William Cocoran, Grace vice president of public and regulatory affairs, testified that Grace had written the EPA about Zonolite Attic Insulation and the EPA had not disproved Grace’s data.

The defense claimed to have trouble bringing in the rest of its witnesses and court was recessed until Tuesday, May 5.