UM Grace Case

 At 1:15 this afternoon, in the absence of the jury, Assistant U.S. Attorney Kris McLean argued for the admission of a series of exhibits the government provided to defense early this morning. The jury was absent due to the untimely illness of one of the jurors. McLean went through the proposed exhibits one by one, beginning with Exhibit 811 and finishing with Exhibit 827. For each exhibit McLean gave a brief summary as to why the exhibit is relevant and should be admitted in conjunction with the testimony of Dr. Aubrey Miller, the government’s next expert witness.

In essence, exhibits 811 through 816 provide studies of air samples taken at various sites throughout Libby. These sites are not located at the Grace mine and include locations such as the Parker’s long shed, the high school track, and the Libby skating rink. These studies consisted of workers performing cleanup duties while wearing pump equipment that reads the concentration of asbestos fibers in the air. The individual workers who participated in the cleanup studies performed daily tasks such as running on the track, playing in dirt, mowing the lawn and sweeping. The pump equipment would then estimate the amount of asbestos fibers inhaled while such common activities where being performed.

During McLean’s explanation of Exhibit 811, Judge Molloy requested the relevance of these proposed exhibits. McLean responded that these studies go to show the effects of asbestos on the residents of Libby, not the workers of W.R. Grace. For instance, when you sweep the floor in the Parker’s long shed, asbestos is released into the air and inhaled in dangerous amounts. Judge Molloy then inquired as to whether the government was seeking to admit these exhibits to prove the actual or intended release. Although not providing a direct response, McLean asserted the dangerous materials that become airborne when performing daily activities such as sweeping came from the Grace mine, were deposited by Grace and therefore are connected to Grace.

Exhibits 817 through 827 consist of time weighted studies that correlate to exhibits 811through 816, as well as other air sample studies conducted in various locations throughout Libby. McLean did not discuss these exhibits in great detail, indicating that Dr. Miller would be able to provide a more effective explanation of their value and relevance.

At the close of McLean’s argument Judge Molloy reiterated his concern that the proposed illustrative exhibits will be offered to prove a release by Grace. McLean asserted the exhibits provide circumstantial evidence of such releases. Judge Molloy voiced his disagreement with McLean’s argument, indicating that even if certain activities discussed in the exhibits did occur, they do not prove that Grace caused the release of the asbestos into the air. McLean then countered that they may prove Grace caused someone else to release the asbestos into the air. Judge Molloy further disagreed with McLean, stating the mental state in the Clean Air Act is raised to willfully and therefore will not be satisfied by McLean’s proposal.

The main arguments raised by defense counsel regarding the exhibits were delay, potential to mislead, prejudice and burden shifting. Defense attorneys Scott McMillin and Thomas Frongillo disputed the admission of the exhibits based on their late disclosure. Both attorneys indicate that presenting the defense with new exhibits on the morning before they are to be discussed by the expert witness constitutes an inappropriate delay. McMillin twice reminded the court that in addition to the late disclosure, the defendants had only received the first half of the offered exhibits. Frongillo categorized such delay as an eleventh hour attempt to surprise the defense. Last minute admission of the exhibits does not allow the defense to prepare an adequate response or an effective cross examination of Dr. Miller.

In addition, defense attorney David S. Krakoff labeled the last minute exhibits offered by the government as confusing, misleading and ultimately prejudicial. Krakoff argued that the prejudicial effect of the exhibits outweighs their probative value and puts a false notion in the mind of the jurors. For this reason, he argued that  Judge Molloy should use Rule 403 of the Federal Rules of Evidence, which prevents evidence, including relevant evidence, from coming in if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

The final substantial argument voiced by the defense was advanced by Frongillo, who stated the admission of such exhibits would shift the burden of proof from the government to the defense. If the defendants have to engage in vigorous cross examination in order to disprove the relevance of the proposed exhibits, then the government’s burden to prove their case beyond a reasonable doubt is shifted.

After the arguments for and against the admission of the exhibits had been voiced, Judge Molloy emphasized that trial will resume at 8:30 tomorrow morning. Judge Molloy wanted all parties to be absolutely clear that trial will take place tomorrow morning even if that means an alternate juror will be used to substitute for the ill juror. Judge Molloy did not offer a ruling on the admission of the exhibits but indicated that he would come to a decision before tomorrow’s commencement of trial.

                                                                                      — Shannon Foley