UM Grace Case

Defense attorney David Bernick was center stage this morning, even making a grand entrance although he missed his cue by 10 minutes. While he may have shown up late, his questioning and attitude indicated that he did not show up reluctant to argue that Robert Locke should not be allowed to continue his testimony.

The court room buzzed as it filled to capacity Friday morning for a special hearing without the jury. The hearing was to consider whether Locke had committed perjury when he took the witness stand earlier. A side issue that arose from that was whether the government had failed to disclose all the documents related to Locke that it was obliged to release.

Close to 80 people filled the galley and late-comers stood in the back. As the proposed start time came and went, people got restless.  Bernick finally strode into the courtroom, all smiles and shook hands with all of the prosecution team.  Judge Donald Molloy entered and admonished Bernick for being late, but Bernick appeared unfazed. 

Bernick’s mission Friday morning was to cross-examine Robert Marsden, the agent from the EPA’s criminal division whose job it was to fact check information provided by key witness Robert Locke, and to keep Locke on track to testify for the prosecution.

Bernick worked to show that Marsden developed an inappropriately close relationship with Locke and that Locke was inapproriately involved in developing parts of the governments case.

Bernick underscored the chronology of the events and meetings involving Marsden and Locke. To provide motive for the prosecution’s questionable actions, Bernick wanted to assert the “desperation” of the prosecution team resulting from the timing of events and the EPA Clean Air Act statute of limitations. Much of the research and test findings were from 1999 and 2000.

Marsden joined the Grace criminal investigation in March, 2004. Because the statute of limitations ran out Feb. 3, 2005, Bernick claimed the EPA was running out of time to be able to include Marsden’s findings in its case. Bernick tried to get Marsden to say that he was aware of the desparate nature of the timing but Marsden said simply that he was just busy investigating the facts of the Libby case, spending 75 to 80 percent of his time on it.

Bernick kept emphasizing that the government needed a witness to testify to the conspiracy, that EPA investigators were desperate and time was running out. Marsden kept up his “just the facts,” responses. He said the government already had witnesses and were not desperate, naming Tom Hamilton, who hasn’t testified, and Steve Venuti. Bernick pointed out that they were both involved with Grace in the 1980s, the government needed someone from the ‘70s and Bernick claimed that’s why Locke was so important.

“Mr. Locke was a member of Grace’s senior management for a long time and deeply involved in the events of the conspiracy,” Bernick said. “He was also an individual that was hostile to Grace, isn’t that right?”

“Yes,” said Marsden.

“Very hostile.”

“Hostile.”

“Very hostile. He had a law suit against Grace because he felt wronged,” Bernick said.

“Yes,” said Marsden.

“Deeply wronged.”

“Wronged,” Mardsen said, in the type of interchange that characterized the morning’s session, with Bernick trying to add emphatic modifiers to Marsden’s acknowledgements.

Robert Locke did sue Grace for demoting him because of a disability and had taken his personal Grace documents to use in that case. After Marsden contacted Locke, Locke apparently notified Grace to let Grace know that this gave him some power, according to Bernick. But when Grace declared bankruptcy, that tied up Locke’s law suit. So Bernick appears to want to show that Locke wanted to be a witness as a way to get back at Grace.

Bernick displayed a number of emails between Locke, Mardsen and the government prosecutors, using the language in each one to assert that Locke was treated differently than other witnesses. Bernick inferred intent from various phrases, which Marsden would often refute. Bernick summarized the relationship between the government and Locke as one where each provided for the needs of the other. The government needed Locke’s 1970s testimony and Locke needed protection, needed to be a witness against Grace and needed to be part of the team, Bernick said. That, said Bernick, was what Locke got.  Marsden said Locke never asked him for protection, that he thought Locke really just wanted the trial “to go away” and that Locke just wanted to cooperate.

Bernick scoffed as he said, “He (Locke) got a special letter, got special input and treatment, had a special relationship with you … special, special, special.”

Once Locke agreed to talk to the EPA through Marsden, he also started digging up financial information on fellow Grace manager, Robert Bettacchi.

“Locke hated Bettacchi, right?”  Bernick said.

“He didn’t like him,”  Marsden said.

“Is that all?” said Bernick, sarcasm or incredulity showing in his tone.

Marsden sent the information that Locke said amounted to insider trading to an IRS agent. The agent wrote to Marsden, saying he was uncomfortable with the tone of Locke’s email and warning that Locke’s attitude might make it hard for him if he ever takes the stand. Bernick used this email to claim that Locke was an advocate of the government and that was recognized by other people even if Marsden claimed not to have seen it. Another email showed that government attorney Kris McLean thought some of Locke’s information was good even if they didn’t use it so he didn’t want to shut Locke down. Later, Marsden sought Locke out to help explain Grace’s financial information, which Bernick said again shows that Locke was part of the team, he was not just a witness providing information.

Molloy called for a break.

–Laura L. Lundquist (posted 1:10 p.m.)