UM Grace Case

Defense completes opening statements
Thomas Frongillo, lawyer for Robert Bettacchi, started the morning with an opening statement which personalized the defendant as a grandfather who fully disclosed the hazardous condition of the land in Libby. Frongillo acknowledged that a “terrible tragedy” had occurred in Libby, but pounded upon the theme that “there was no secret.” The focus of the speech was threefold: humanize the defendant as a middle-class family man, emphasize that defendant hid nothing, and finally paint the government as shifting the blame for its own shortcomings. In ending, Mr. Frongillo asked the jury to fulfill their Constitutional obligation to be fair and objective, to be braced for the emotional testimony, but to set these emotions aside when deliberating.

The Chart
Judge Molloy spent some time reviewing the chart which was distributed to the jury following opening statements. The color coordinated chart apparently lays out the counts with the defendants charged, and traces the various timelines which will be presented at trial. Judge Molloy explained that the chart was not an instruction on the law, but an effort to place evidence in the context and timeline of what the government must prove beyond a reasonable doubt. Judge Molloy also referenced the jury instructions, stating that they will provide the ultimate guidance on what is binding in the case.

Prosecution begins their case-in-chief
Prosecution called their first witness, Kelly Canon, who was examined by Mr. Cassidy at length about both his childhood growing up in Libby, as well as his occupations during 1990-2003. The prosecution moved to admit exhibit 681, an aerial photograph depicting the export plant and the baseball fields Mr. Canon testified to playing on. The defense objected on several grounds, including relevance and “time” which Judge Molloy interpreted as foundation. Mr. Cassidy continued to elaborate on how the witness recognized the area, to which he responded “It’s my old stomping ground.” The exhibit was admitted and published to the jury over the objection of a “pending motion before the court.” Mr. Cannon marked the two homes where he had lived during the 1970s, which were approximately 2-4 blocks from the export site. Mr. Cassidy questioned whether Mr. Canon knew what vermiculite was, and how he knew, which was peppered with relevance objections by the defense. The prosecution tried to have a photograph of Mr. Canon’s little league team admitted, exhibit 204A, but was sustained as irrelevant. Mr. Canon performed some hauling and dumping at Grace in the summer months, and described the dust billowing through the windows of the un-airconditioned dump trucks. Mr. Canon has been diagnosed with an asbestos-related disease, and has a civil suit pending against Grace.

Ms. Harding cross-examined Mr. Canon for the defense. Her questions focused on work the witness had performed with automobile brakes, which tend to be lined with asbestos, as well as attempting to pin down the actual amount of days he had spent performing dumping work at Grace. Mr. Canon clarified it was 10 days over 2-3 months from 1990-93. She questioned how many times he had met with the government about this case, which was twice, once ‘”three weeks ago” and the previous time in December 2008. Ms. Harding attempted to have exhibit 5143 admitted, a website page, but was kept out on objections of relevance, hearsay and foundation. She also broached the subject of his current civil suit against Grace, but was refrained from learning whether he has an hourly or contingency fee arrangement. She also picked at his treatment from his doctors.

On redirect Mr. Cassidy elicited testimony to clarify the somewhat hazy timeline from when the witness was diagnosed with asbestos related disease, in the early 1990s, to when he sought legal representation. Mr. Cassidy also was successful in having exhibit 797 admitted, a photo of the large external open-fronted storage building where the witness dumped materials for Grace. Over the objections of foundation and pending motions, Judge Molloy ruled “It’s coming in.”

Mr. McLean called and examined the prosecution’s second witness, Kelly O’Brien, another lifelong resident of Libby. Mr. O’Brien’s testimony centered around the vermiculite which filled the ceiling and walls of his childhood and current home in Libby, including memories of the fibers leaking through the ceiling. In describing what vermiculite looks like, Mr. O’Brien gave illustrative testimony of the flaky texture of darkly-tinted natural vermiculite, as well as the gold, tree-like layers that are seen once the product is processed. Mr. O’Brien testified that both forms were found in his home. After relevance and time objections, Mr. McLean shifted focus to the vermiculite exposure to the last 15 years. Mr. O’Brien grew emotional when he said he had been diagnosed with an asbestos-related disease in 2002. Objections to Mr. O’Brien’s testimony were focused on relevance as well as testimony prior to the 1990s, which were largely overruled, though Judge Molloy did instruct the jury to “take into account the time frame.”

-H. Stone