Defense team demands prosecution interview notes
By the end of Monday, the tables had turned, and it was the defense alleging a cover up, accusing prosecutors of coaching and otherwise influencing witnesses.
Without the jury present, three of the defense attorneys asked Judge Donald Molloy to become a referee and force the prosecution to divulge a wide array of documents showing the government’s communication with all of the witnesses it had called . They asked him for all the prosecution’s information about the government’s interactions with its witnesses in an effort to uncover any evidence that government prosecutors or investigators had been flouting the rules.
The controversy was raised when Robert Locke admitted on the stand to refusing an offer of immunity from the government. The defense claims the government should not have made such an offer. The discussion between Locke and a representative of the government, agent Marsden, was revealed to the defense last night when the prosecution turned over its notes on the matter. Now the defense wants all of Marsden’s notes on Locke and any other witnesses he dealt with.
Molloy answered defense attorney David Bernick’s demand by reading Federal Rule of Criminal Procedure 16, which says that certain documents or other memoranda produced by a government attorney or government agent does not have to be revealed to the defense. Bernick argued that that rule protected a prosecution that conducted a fair case, but in this situation, the government was not in compliance.
“We don’t know how much of this case is affected. We can’t adopt blinders and say that since all we know about is Mr. Locke, then that is all there is,” Bernick said. “Mr. Locke did not hijack this case without assistance. The government embraced Mr. Locke.”
Bernick went on to claim that Steve Venuti, former Grace supervisor, and Mary Goldade, an EPA chemist, were further examples of witnesses that had been coached and courted by the prosecution.
“Rule 16 was created to provide privacy for the prosecution. But in this case, the rule has provided a cloak of isolation that has allowed this case to become tainted with the manipulation of evidence. We ask that the notes be given to the court, if not to the defense,” Bernick said.
Defense attorney David Krakoff then got up to argue that it wasn’t so much a Rule 16 issue as it was a Brady-Giglio issue, where the Supreme Court ruled that suppression of evidence favorable to a defendant who has requested it violates due process.
“When you look at the way this case has developed, it all gets back to the prosecution,” Krakoff said. “We would have never gotten a window into this (immunity) issue if the witness had not made a mistake.”
Finally, defense attorney Thomas Frongillo complained how much this case had affected his client, Robert Bettacchi, and claimed that Locke had been basically stalking his client, pulling information off the Internet and feeding it to the prosecution.
“But do we go beyond Locke as far as the process of discovery? I think the court has to,” Frongillo said. “I’ve never seen anything like this happen in my 26 years of practicing law. We need your honor to be the referee here.”
After the defense finished their arguments, Molloy asked the prosecution for any comments. Prosecution attorney Kris McLean replied that the government was in the process of complying with subpoenas and orders and promised to show the court the whole picture on Friday. He quietly said he had nothing more to add. Cassidy then interrupted to say that he took the responsibility for the immunity situation.
“This shouldn’t just fall on Agent Marsden’s shoulders. We’ll do what we can to remedy this,” Cassidy said simply.
All this after McLean and Bernick had started the session saying they had discussed and mostly agreed on the prosecution’s schedule of witnesses. Bernick nodded to McLean’s listing of witnesses but then calmly stated that he wasn’t so sure about the testimony of Dr. Chris Weis. He argued that much of the testimony expected from Weis had already been covered by Dr. Aubrey Miller so the testimony would be cumulative, or redundant.
Bernick also complained that the prosecution might be finishing early so the defense wanted an updated completion date so they could plan their defense. And that lead to the Rule 16 discussion.
Molloy, who last week advised the prosecution to make its case more clearly, recessed the court with little to say.
– Laura L. Lundquist (posted 6 p.m.)
Posted: April 13th, 2009 under News.
Tags: Locke, Lundquist
Comment from Terry Trent
Time April 13, 2009 at 10:55 pm
The Dr. Chris Weis testimony should cover time periods where Aubrey Miller wasn’t around. Most importantly it will cover the very first time in the history of the entire world that the words “imminent (and substantial or significant) health threat” were used in connection with “asbestos”. First time ever!! Dr. Chris Weis wrote those words down for all the world to see. All “asbestos” exposures, even those 1000 times higher than Libby’s prior to this (and everywhere else USA concurrently with this and continuing) were considered long term health effects not worthy of the title “imminent” which also happens to be the threshold phrase to trigger “Public Health Emergency” under CERCLA and is the single underlying component that could possibly be confused with the concept of ‘having conspired to do something illegal”.
It is very important to understand that Dr. Weis did not just simply write these words down. He wrote them down as a culmination of a scientific process in which the processes of disease caused by amphibole mineral fibers, is considered to be started after the first or second significant exposure. Which is the correct answer based upon the culmination of known medical science. A correct answer that our protective agencies (EPA, ATSDR, CDC) completely ignore everywhere else except the court room in Missoula Montana where our modern and special form of inquisition seeks to burn these current heretics at the stake. As ignored as the idea to grant public health emergency to Libby was. It is important to hear the words of the very first man in government to reach the conclusion of “imminent”, nearly as important as to hear why it is that hundreds of others of his co workers have not.
TTrent