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Grace trial: Reaction around Libby toughest on Judge Molloy

by Canda Harbaugh & Western News
| May 14, 2009 12:00 AM

A jury acquitted W.R. Grace & Co. and three former executives last week of all criminal charges relating to Libby’s asbestos poisoning.

Following 11 weeks of testimony, jurors were handed the case Wednesday evening and delivered their verdict Friday morning.

Not everyone in Libby felt strongly about the outcome of what has been deemed the largest environmental crimes case in U.S. history. But many did blame presiding U.S. District Court judge Donald Molloy for Grace’s acquittal.

“When you have a judge like Molloy,” Libby resident Dale Herreid said Friday, “you know where the case is going – right down the toilet, just like it did.”

Herreid, who suffers from the effects of asbestos exposure, said he has followed the trial closely since it began in February. He believes that Molloy withheld pertinent information from the jury through controversial evidentiary rulings. 

“He wouldn’t let the jury hear the evidence,” Herreid said. “You can’t really blame the jury when the judge didn’t allow the information to be heard.”

Former Grace executives Robert Bettachi, Henry Eschenbach and Jack Wolter were acquitted Friday, and charges against two other individuals – William McCaig and Robert Walsh – were dropped earlier due to lack of evidence.

David Bernick, lead attorney for W.R. Grace & Co., said Molloy exercised caution on the bench in handling the original five individual defendants.

“Judge Molloy, I think, was very circumspect and very cautious in that he … dismissed two defendants where there was really nothing there at all to even connect them with the central allegations of the case,” Bernick said. “I think Judge Molloy was very careful in deciding what to do with the individual defendants.”

Molloy gutted much of the prosecution’s case in 2006, but the Ninth Circuit Court of Appeals overturned practically all of his decisions, and the Supreme Court upheld them before handing the case back to Molloy. With that history, some locals expected an acquittal from the beginning. A few days into the trial, their feelings were confirmed.

“As the trial progressed, it seemed clear the way the outcome would be,” said Kirby Maki, superintendent of Libby Schools. “The way the judge started off limiting what witnesses could say. It seemed to be going that direction from the very beginning, and it’s unfortunate.”

David Uhlmann, who worked on the Grace case when he was chief of the Justice Department’s Environmental Crimes Section, said that proving a conspiracy that reached back decades was already a difficult task, but that Molloy’s outright opposition to the prosecution made the case more difficult.

“Obviously, what was always going to be a very difficult case for the government became impossible to win when the judge became so hostile to the government and the case they were presenting,” Uhlmann said. “The jury rendered a fair and impartial verdict, but the question that will never be answered is, ‘What would have happened if the jury would have heard all of the evidence?’”

Gayla Benefield, an outspoken advocate for asbestos victims, watched three days of the trial with her friend Norita Skramstad, and kept close tabs on the proceedings.

“Molloy was absolutely the biggest obstacle we had throughout the trial,” Benefield said. “He (Molloy) simply was ignoring the decisions from the Ninth Circuit. … We didn’t even think it would make it to the jury because of the judge.”

Skramstad’s husband, Les Skramstad, died two years ago of mesothelioma related to asbestos exposure before he could take the stand as a government witness in the case.

“He (Les) said they would get away with murder and they did,” his widow said. “The judge was their best defense.”

The verdict did not take County Commissioner Tony Berget completely off-guard either. He cited the Environmental Protection Agency’s performance in assisting the prosecution.

“I’ve been following the case in the newspaper,” said County Commissioner Tony Berget. “It didn’t appear that the EPA was able to put together a very good case for a lot of reasons, so I’m not surprised (by the verdict).”

The last defendant in the criminal case, O. Mario Favorito, is scheduled to stand trial in September, although if the prosecution has to try him under the same judge, it will likely drop the case.

With W.R. Grace’s acquittal of criminal charges and the company being safeguarded from civil suits through bankruptcy, there is little further legal action to take.

Skramstad and Benefield have spent many years fighting for W.R. Grace and its executives to be held accountable for the asbestos exposure that has affected their health and killed their relatives. Now that the trial is over, they are unsure what is next.

“I’ve put over half of my life into this,” Benefield said. “Maybe it’s time to take the years I have left and do something different, I don’t know yet.”

Berget and Maki would like to see Libby move forward.

“I’d like to see the focus back on cleaning up,” Berget said, “and back on the people of Lincoln County.”