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W.R. Grace case is handed over to jury

by University of MontanaChris D’Angelo
| May 7, 2009 12:00 AM

The case against W.R. Grace and five of its former executives – now excluding William McCaig and Robert Walsh who were recently acquitted – was handed over to the jury Wednesday evening after nearly 10 hours of closing arguments from five separate attorneys.

The trial, which began on Feb. 19, has been ongoing for nearly 11 weeks.

“Your judgment is extremely important to all of us,” Molloy told a seemingly exhausted jury. “We will wait for a verdict.”

Wednesday’s late afternoon session quickly turned to evening as the court heard closing arguments from defense attorneys Thomas Frongillo, David Krakoff and Carolyn Kubota, followed by a rebuttal argument from prosecutor Kris McLean.

Earlier in the day the court heard closing arguments from prosecuting attorneys Kris McLean and Kevin Cassidy, as well as lead W.R. Grace attorney David Bernick.

At roughly 3:15 p.m., Frongillo stepped in front of the jury to defend his client and former senior vice president of W.R. Grace and Co., Robert Bettacchi – charged with three counts, including conspiracy to pollute and defraud as well as two counts of knowing endangerment.

Frongillo argued that the prosecution tried to give the jury the impression that it was illegal for W.R. Grace to sell products that contained vermiculite, although vermiculite has never been illegal to sell, use or mine.

“This case has been tainted … you can’t trust the government,” Frongillo said. “The game that they’re playing is that the end justifies the means.”

Frongillo contended the knowing endangerment charge at the export plant was “ridiculous” since the charge’s timeline occurred 5 1/2 years after Bettacchi signed the deed for its sale, after having received legal advice.

“This is an outlandish charge that should never have been brought if the Department of Justice had been doing what it should,” he said. “If a crime was committed at the export plant, it happened under EPA watch … they were (already) there.”

Turning his attention to count three, knowing endangerment at the screening plant, Frongillo spoke strongly against the reliability of Mel and Lerah Parker, who he said closed on the property with “their eyes wide open.”

“Money was more important to the Parkers than being truthful with you,” Frongillo told the jury, causing Lerah to cry and leave the courtroom. “You can’t consider that kind of evidence.”

Ultimately, Frongillo said the government has lost sight of what its goal is. “Now you (the jury) have to ensure that justice will be done … and you will when you return a swift verdict (of not guilty),” he said with poise.

Following Frongillo, Krakoff approached the bench, representing Henry Eschenbach, the former industrial hygienist and later director of health, safety and toxicology for W.R. Grace. Eschenbach, unlike Bettacchi, is charged with only one count of conspiring to pollute and defraud.

Krakoff argued his client worked to protect the workers in Libby, that he learned of the adverse health effects of tremolite asbestos and then reported that information to the government, EPA and NIOSH. 

Citing a letter Eschenbach wrote to the EPA about his findings at the mine site, Krakoff said Eschenbach’s goal, without a doubt, was “to help them (EPA) understand the health issues at Libby.”

“What we’ve seen in this long trial … is the awesome, the awesome power of the government. When they want something they will stop at nothing,” Krakoff said sternly. “This entire case is wrong. What’s right is to give him (Eschenbach) back his life and find him not guilty.”

Carolyn Kubota followed Krakoff, representing Jack Wolter, who served as the vice president of Grace’s construction product division from 1975-94. Like Bettacchi, he is charged with conspiracy to pollute and defraud and two counts of knowing endangerment.

Kubota argued that to believe the government’s case about Wolter, you would have to believe he is the Grace version of Dr. Jekyll and Mr. Hyde.

Wolter had intended to develop a piece of land adjacent to the screening plant site, that Kubota said contained vermiculite asbestos much like the land the Parkers bought.

“When Jack (Wolter) visited Libby he was absolutely unworried about asbestos exposure,” she said, arguing the implausibility of him knowingly endangering his own family.

“The government has completely and utterly failed to prove these charges … we ask you to acquit Jack Wolter on all three charges,” she pleaded.

Following closing arguments from the defense, the prosecution was allowed a 45-minute rebuttal argument, which began just before 6 p.m.

McLean focused his rebuttal on the defense’s use of “obtuse language” in the documents presented to the jury throughout its case, which he said is not “full disclosure” but rather “misleading disclosure.”

“What we ask you as jurors to do is apply your collective common sense … go back into the jury room and read this evidence,” McLean said. “The government is confident that when you do that … you will find them guilty as charged.”

With these words, the day’s closing arguments wrapped up. The bailiffs and marshals were then called forward to take their oath, swearing to keep the jury sequestered until an ultimate verdict is reached.

Molloy then read a portion of the Sixth Amendment of the Constitution to the jury, reminding them of the importance of their position and decision. After a few more routine housekeeping items, the 11-hour court day concluded.

Court will remain in recess until the sequestered jury has reached a verdict.