UM Grace Case

If the cat isn’t out of the bag by now, there may not be enough cat left to release. 

In the late afternoon session, Judge Donald Molloy heard more objections from the defense about evidence the prosecution wants to support their conspiracy charge. The prosecution said the exhibits show the defendants didn’t want to let the cat out of the bag but the defense said the evidence is vague and from too long ago.

Another juror took ill, causing the judge to dismiss the jury and the witness Robert Locke for the afternoon, freeing the courtroom up to hear the debate over evidence, instead.  The Grace defense wanted to limit Locke’s testimony, specifically that associated with eight new pieces of evidence submitted by the prosecution. The exhibits included letters between Locke and other Grace executives. Since Locke’s testimony was damaging to the defense, David Krakoff, representing defendant Henry Eschenbach, insisted that all communication between Locke’s attorney, Mr. Peacock, and the government be produced so they could see if there had been any immunity offers from the government.

While the argument initially focused on the Locke evidence, it ended up dealing with much of the case presented to date. It was a battle of two legal rules: relevant evidence vs. exclusion of relevant evidence due to confusion or waste of time. The prosecution was using some loosely connected evidence to try, attorneys said, to build their conspiracy case. The defense tried to discredit much of it by saying it was too confusing. For example, the prosecution wanted to show that Monokote 5, a fire-retardant spray coating containing Libby vermiculite, was mislabeled as not containing asbestos and then replaced by Monokote 6 when the company knew they would have liability problems.

Defense attorney David Bernick sidetracked the issue by bringing up a liability case brought against Grace for Monokote 3, which contained tremolite. He said once the court got into liability, the defense would have to bring in other lawyers to testify about liability. Prosecutor Kris McLean said they would only mention Monokote 3 as precursor of Monokote 5, and they wouldn’t bring up the liability case since that was not their objective. But Bernick repeatedly mentioned bringing in lawyers as witnesses as something that would waste time and said there’s no way the jury would be able to understand that the issue wasn’t about liability.

After 30 minutes of arguing between Bernick and McLean, Molloy put on his glasses, read aloud the conspiracy count of the indictment and expressed his own confusion over how the evidence helped the prosecution’s case. McLean said it was all “as to the motive of the crimes;” to show the mental state of the defendants at the time. Some of it showed that Grace was worried about the cost of liability if they were found out.

McLean argued that Grace kept secret the reason for their switch from Monokote 5 to Monokote 6, which contained no asbestos. He said if Grace would have admitted to their buyers that Monokote 5 contained asbestos, “the cat would have been out of the bag.” The public would have then told the government. Molloy removed his glasses and insisted he was still having difficulty following the argument because defrauding the public isn’t the same as defrauding the government.

Bernick jumped on the phrase and said there was no cat to be let out. Where the evidence shows Grace discussing liability costs, he said they were just doing normal risk assessment. Molloy asked, “Is there a company anywhere in the world that doesn’t consider profits and avoidance of liability?”

McLean answered that other companies discuss such things in public meetings, and in this case, it had affected people’s lives. He said the prosecution wanted to show that Grace had different levels of response planned for liability, that they used language to mislead the public such as “negligible levels of asbestos” and that the amount of asbestos contained in a product was less than what would be released when the product was disturbed.

Despite McLean’s assertion that the prosecution would “protest with vigor” the motion to withhold the evidence, Molloy still had questions. He asked if there was any other case that linked defrauding the public with defrauding the government. The prosecution had not researched supporting cases, which appeared to disappoint the judge. Finally Molloy asked, “What is the conspiracy?” Again the prosecution had no straight answer, but McLean said when a company is involved in a conspiracy, they don’t publicize it in documents.

More than once, the defense claimed there was no way they could have a fair trial. If the prosecution was allowed to bring out every critical letter from a consumer, it was difficult for the defense to counter each one. Plus, they said, there was no direct line of evidence, just a muddled collection of inferences that they had to argue against. Bernick drew a wobbly diagram that was topped by “Conspiracy?” and “Defraud?” to try to point out the problems with the prosecution’s case thus far. He said the conspiracy charge is overly broad and now apparently encompasses the entirety of the construction product’s business over 30 years. He said the indictment is ill-focused if the prosecution can use such evidence.

“It’s impossible for Grace to get a fair trial if the prosecution is allowed to use an argument of profits over safety,” Bernick said. But he finished up with a deferential, “Your honor has been so diligent in keeping this case on course. Whatever you decide, we’ll do our best to respond to.” 

After removing his glasses yet again and leaning his head on his hand, Molloy asked the prosecution, “Is this the best example, Monokote, for trying to prove what you are saying? This will confuse the jury.” After more explanation from McLean, Molloy insisted, “It seems to me that there are some real issues with this.”  

Two more defense lawyers, Stephen Spivack representing Robert Walsh, and Thomas Frongillo, representing Robert Bettacchi, rose to say  that the government already knew what was happening in the 1980s when Monokote was being produced and the debate wrapped up. The judge promised to rule on the evidenciary matter as soon as possible so that Locke’s testimony wouldn’t be delayed. He adjourned the court until 8:30 Tuesday morning.

– Laura L. Lundquist (posted 7:35 p.m)