UM Grace Case

After lunch, the court addressed what Judge Molloy called the “Da Vinci Code,” a flowchart of sorts to aid the jury throughout the case. Molloy provided the following analogy for why he wanted to use the chart, “If you have ever sat in the cockpit of a plane, you know how different a Cub is to a Piper. I see the case in this way, and just want to give the jury something to work from.”

The jury chart is approximately 12” x 16” and laminated. The chart has a timeline, with specific dates attached to certain evidence or key statutory dates. The earliest date, according to the argument by the parties, is 1965; referencing a document proving the purchase of the Libby mine by W.R. Grace. Other key dates are: (1) 1976, the point where the agreement and conspiracy “began” according to the government; (2) 1990, when the Clean Air Act was enacted; and (3) November 3rd, 1999, the pre-determined statutorily dictated date from which to judge “knowingly released” under the Clean Air Act (CAA).

From each of these dates are drawn lines in red, blue, or green. The color selected depends upon whether the government must prove a fact, or if the evidence is merely relevant.In the bottom right corner of the chart was a designated box titled “Elements” which listed certain issues which will be discussed and dealt with at trial.

First, Kris McLean presented his problems with the chart. He stated that while he agreed with the document as a whole, he was concerned about the use of the term “Elements.” Judge Molloy admitted the language used was problematic, implying that the box gave the jurors a checklist for the elements of the case. “I will change it to something less problematic, maybe “allegations.””
McLean subsequently spent the rest of his argument discussing Count I, the conspiracy charge. He argued that the timeline creates a problem, not allowing the jury to consider his full argument that a conspiracy can be continuing. Furthering his argument, McLean cited three cases, the third being US v. Hersh, 297 F.3d 1233 (2002).

This is an extremely important issue in this case. If the defense can force the government to prove the conspiracy occurred after 1990, when the CAA was enacted, then the government’s evidence becomes extremely stifled. McLean clearly was providing another salvo in his attempt to show that proof of a conspiracy can be considered before the enactment of a statute without violating the ex post facto clause of the Constitution. As Hersh states, “when a defendant is charged with a conspiracy that continues after the effective date of the statute, the ex post facto clause is not violated.” 297 F.3d at 1244. McLean appears to believe the color designation for the evidence presented in 1976 to 1990 deserves a different color designation because it could apply directly to the conspiracy charge and not merely be relevant.

Next, the defense then began a series of arguments concerning the chart. Lead attorney for Grace, David Bernick, aided by Thomas Frongillo, provided three key concerns:

(1) The indictment has the conspiracy starting in 1976. Therefore having the timeline start at 1965 could confuse the jury as “they spend every moment with this chart” as Thomas Frongillo averred.

(2) The line drawn from “Agreement to defraud,” should be blue because that issue is not merely relevant but must be proven by the government.

(3) In the “Elements” section should be definitions for words such as “knowingly” and how they apply in both the CAA conspiracy charge and the regular conspiracy charge.

Judge Molloy considered some of the changes, such as the color of certain lines and the use of certain dates. However, he refused to accept the inclusion of definitions. “This is supposed to be a guide, not a jury instruction,” Judge Molloy retorted at one point.

With argument on the chart completed, Molloy provided reassurances that the chart will be given to the jurors only after opening statements are presented by both parties.

Legally there are several concerns with giving this chart (or “Da Vinci Code,” which has certain implications) to the jurors in my opinion. Arguably, the chart allows Judge Molloy to establish the construction and presentation of the case. The legal system is an adversarial process. The legal system provides a forum for each party to present evidence and tell its own story. The chart may eliminate some of that ability for the attorneys.

Furthermore, a question exists about whether the chart could be viewed as prejudicing the jury. Frongillo hinted at the possibility that giving such a chart could be grounds for a mistrial, even if it is demonstrative evidence and from the judge.
—Christopher Orman