Molloy: Trust in prosecution almost gone
Judge Donald Molloy said he no longer trusts the government’s lawyers prosecuting the W.R. Grace case because they never once came to him with concerns that testimony of any of their witnesses may have been flawed.Â
“From the get-go, I trusted Mr.McLean,” Molloy said during one of several spirited tirades directed at the prosecution team Monday afternoon. “My trust probably kept me from doing what I should have done. I have no confidence in what the government says to be the truth.
“There is a professional obligation. You are not the defense, or even the plaintiffs. You are special. Not one time has Nelson, or Cassidy, or McLean came to me and said, ‘Your honor, we believe the testimony of Locke either was perjury, or incomplete,’” Molloy said, referring to attorneys Eric Nelson, KevinCassidy and Kris McLean.
The prosecution team came under fire when government attorneys rose to respond to defense arguments that the trial should be dismissed for prosecutorial misconduct largely because witnesses allegedly lied on the stands, were lead by attorneys, or incomplete evidence was presented. The hearing was held all day Monday without the jury present.
Assistant U.S. Attorney Tim Racicot, a newcomer to the prosecution team, led the argument for the government, apologizing for any mistakes in the trial process.
“We get it. We understand the obligations, and we care about those,” Racicot said, refering to the obligation of the prosecution to turn over evidence that could support a defendant’s innocence.
Stating that dismissing the trial could not just be based on the “discovery misstep,” Racicot said it would be wrong to end the trial with a dismissal.
Molloy took his turn to respond intermittently between breaks in Racicot’s statements, showing continued animation for long stretches, animation only seen in brief moments prior to today.
“They have been bull-headed from the start,” Molloy said. “The government has this attitude that the discovery orders are way too broad. Maybe so, but I didn’t draft the indictment. This is what happens when you put 40 years of discombobulated charges together.”
“Now they have an attitude of, ‘We think your discovery orders are too broad, too difficult, so we’ll do it our way. We’ll hold stuff until we need to disclose it,’” Molloy said.
Racicot spoke on behalf of the government, saying that was not their approach and that their attitude was not to hide anything or be deceptive.
“Unfortunately, I don’t think you can do anything to change my impression of that,” Molloy said in response.
Government attorney Cassidy also spoke out about the judge’s comments, at times risking a confrontation with the judge. He said he felt they had made only minor mistakes in the handling the trial process. Molloy disagreed.
“You say this happened, then this happened, then this, so there must have been an agreement?” Molloy said incredulously. “You conjure up a two-headed conspiracy, then say this happened, then this, then this, and there had to be an agreement?”
The government spent an “incredible amount of time” researching the trial, and saw a pattern, Cassidy said. The government attorney said they had disagreements about the discovery orders but that they gave the defense the information they wanted.
Cassidy defended the testimony of key government witness Robert Locke, saying it was more fact than fiction, a belief that seemed to infuriate Molloy even more
“As an officer of the court, do you want to convict someone on perjured testimony?” Molloy asked Cassidy. ”He’s a witness that said whatever you wanted him to say. How could you have a case that relies on this person? The process is to get this factual information in front of the jury. You are playing games with the jury, and you guys have been doing it with every witness. You criticize me for letting the defense object, but the questions are going directly to excluded matters, forcing them to object.”
Locke, a disgruntled former Grace executive, was on the witness stand for a week. During his testimony, he contradicted testimony he had given earlier, among other problems.
Cassidy suggested bringing Locke back to help clear up any confusion. Molloy disagreed.
“We’re not going to put him on the stand,” Molloy said. “What do I do about it? I don’t know what the remedy is. One thing I can do is declare a mistrial, then what?”
The prosecution addressed accusations that Locke was the key to their trial, stating he was only a part of their case.
“Are you saying Locke’s testimony is irrelevant? Because I can strike his testimony, and that could remedy it,” Molloy said.
Cassidy backtracked somewhat, saying he would have to look over the testimony again, but that it could be a possibility.
In his short response, lead defense attorney David Bernick mocked the prosecution, characterizing their responses to striking Locke’s testimony as “uh, yeah, maybe,” in a slow, drawn-out voice.
Bernick said if they can just strike Locke’s testimony with no real punishment, it hurts the defense.
“If the case continues, there is no remedy to striking Locke’s testimony. Their credibility will not be as hurt, it would just be a slap on the hand,” Bernick said. “The problem is the abuse of the witnesses, and the prosecution doesn’t get it. They don’t get that this is a flawed process. No matter which way you go, this case is a mess.”
–Josh Benham (posted 4:50 p.m.)
Posted: April 27th, 2009 under News.
Comments
Comment from Billy Angus
Time April 27, 2009 at 6:36 pm
This is a clear case of judicial misconduct, (such as collusion/favoritism) between Malloy, defense attorneys, and W.R. Grace itself, and I think Don Malloy should be removed from the case and even from the bench(and investigated for obstruction of justice, regarding the W.R. Grace case).
Otheriwise, if these morons from W.R. Grace get “off the hook”, justice would not be served for the folks in Libby, and the deaths, caused by asbestos-related illnesses, would be in vain.
I’m recommending folks here to demonstrate/protest and/or gather petitions to have Malloy recalled from office, unless he steps down on his own.
Comment from Terry Trent
Time April 27, 2009 at 6:56 pm
Very powerful stuff contained in today’s court reporting. As much as I feel an acquittal is the correct outcome – for the surviving defendants – and not for the company itself, I am distraught that America will miss the presentation of their defense. That defense would clearly lead the people of Libby to the true culprits in what has happened to them.
It is not enough to say that the Prosecution in this instant matter has behaved in exactly the same way as EPA over these 38 years in regards to Libby. That is cutting corners, creating mind boggling and unrealistic theories, flat out lying and generally manipulating a situation in order to succeed at deceiving the greater mass of people. EPA’s modus operandi in camera, by yet another government entity! No it is not enough just to be able to say that. Apparently there are those who must see it, and see it they would if the Defendants are held to answer..then acquitted.
Anyway, the Defendants not presenting their case, is a huge loss to everyone concerned on this subject, world wide. EPA and the Prosecution will walk away from summary orders of dismissal or acquittal blaming the Judge and neither of them will use any introspection to determine what all of us should plainly be able to see, that these government entities are riddled with corruption, something that should not exist in our government agencies.
TTrent
PS: Humorously somebody mentioned that the government had the wrong charges. I think so too. I thought so when they first published them. They also do not have the entire group of offenders in front of the court. Both WR Grace and EPA needed to have been charged by the people of the United States of America……still do. Rarely any good comes from incomplete human works.
PPS: Judge Malloy has the good sense to recognize the above. But I still hope he wants to hear it all, before crashing down the gavel in the Grace employees favor.
Comment from Don Wilkins
Time April 27, 2009 at 6:58 pm
I’ve said from the get-go that Grace’s money STILL runs deep in this nation. The Judge’s theatrics only deomostrates this further. I look for the case to either be thrown out or the testimony so restricted that a “not guilty” verdict be rendered by the jurors.
Comment from John Derry
Time April 27, 2009 at 8:38 pm
I agree with all of Mr. Trents points and can not echo loudly enough the sad state of government agencies. Where once employed people are nearly impossible to fire. Where one bad apple wrecks an entire office, the worst are promoted to other departments ( upward failure), and the hardest working are stabbed in the back.
This is saddening, disappointing, but no surprise.
Comment from John Derry
Time April 27, 2009 at 8:44 pm
Josh Benham !!
For some reason words got “mashed” together in this posting, ( many times).
Comment from Terry Trent
Time April 27, 2009 at 11:46 pm
Thanks John -
I am not seeing the judicial misconduct?? I am seeing one really really bad statement by one of the Defendants, that really pisses me off. That is Henry Eshenbach’s written comment about stopping someone from blowing the whistle. I expected better of him. (I don’t know why. I have been let down by every Industrial Hygienist I have met in person on this subject. Perhaps it is their lack of training. Perhaps a confused loyalty. So I don’t know why I expected better of Eshenbach).
I don’t see conspiracy from WR Grace, other than the every day activities of any corporation in the United States. That is how to best promote their product and how to keep either the product itself or competitors or anyone else from ruining sales. I see lots of work by Grace to attempt to make their products safe for consumers and for workers…..at which they failed miserably. They did not fail on purpose. GRACE DID NOT FAIL ON PURPOSE. (But we all have heard something over and again for years now, that is on purpose…that is “we must not panic the people”…anyone know who says this phrase over and over again even in their sleep? Any ideas to what lengths those people are willing to go, to insure that “we do not panic the people”? Yes that is right, any length imaginable to man).
The nature of amphibole asbestos is that everyone fails at making it safe. We all heard testimony from the chemist. Believe it. In spite of our best efforts, our “best laid plans” we have no earthly clue how to make Tremolite safe. Surprisingly, which many don’t know, this failure can be calculated by sitting behind a desk using chemical formulas, the size of the fibers and knowing a little about how the real world works. This has been doabale for many years now. The enormous scope of that failure can now be calculated in terms of human death, thanks to confirming data from Greece, and New Caledonia and the work of Wayne Berman et al giving us toxicity potentials for Tremolite. And the work of literally hundreds of great and talented scientists over these great many years, none of whom work for EPA, by the way.
The other side of this coin is the Prosecution and the EPA. All that can be said in short for them (and I would love to go into great detail, but will spare everyone that for now) is that they have continued perfectly with their Keystone Kops imitation, with a great deal of the Stooges thrown in to boot.
With all that said, is the Prosecution going to field a “surprise” witness in place of Locke? If so what could he or she possibly say? The drama continues if perhaps only just for a moment.
TTrent
Comment from Billy Angus
Time April 28, 2009 at 2:01 pm
These morons from W.R. Grace(and their so-called legal “henchmen”) might try to weasel their way out of justice here on Earth…
But in the end, they will NEVER escape judgment when they stand in the shadow of Great Spirit’s justice.
Comment from neil nelson
Time April 27, 2009 at 4:30 pm
what about the trust put into a judge who is clearly has bias against the govrnment and the people of Libby. What a sham.