UM Grace Case

 With the jury out of the room and all attention focused on the defense, attorneys David Bernick and Thomas Frongillo argued that government behavior over the course of the trial rises to the level of “outrageous prosecutorial misconduct,” and that all charges in the case should be dismissed.

“This trial is a dark bloom … a terrible flower,” Bernick said, as an illustration was shown on the courtroom screens.  “The root cause of the dark bloom is that this case has been fundamentally poorly prosecuted from the outset,” Bernick said. He said that Paul Peronard, the federal government’s emergency on-scene coordinator for Libby starting in 1999, and the Environmental Protection Agency used the Justice Department “as a delivery vehicle” for a criminal case motivated by a Peronard’s personal agenda and the political agenda of the EPA.

According to Bernick, the government built a case by leading witnesses and omitting evidence that worked against it, even to the point of failing to provide material to the defense that should have been handed over in discovery. The government, he said, couldn’t make its case and so violated the orders of the court and the constitutional rights of the defendants to get the facts to fit the charges they had filed.

“The modus operandi of the prosecution team was flagrant violation, with respect to witnesses, with respect to the court’s orders … with respect to their constitutional obligation … driven by the calculus that the ends justify the means,” Bernick said.

Arguing that the government had failed to provide the defense with material that would have undermined the case against Grace in repeated violation of specific orders from Judge Donald Molloy, Bernick finished saying, “your honor, you still do not have their attention.”

Most of Frongillo’s arguments were specific to the testimony of Robert Locke, who Frongillo said perjured himself at least three times in pursuit of a personal vendetta against Frongillo’s client, former Grace executive Robert Bettachi.  Frongillo further asserted that the prosecution team had Locke perjure himself on purpose and concealed evidence that would have revealed his perjury to the defense.

“This is not a case of recklessness.  This is intentional… [the prosecution team] let him perjure himself, and they sponsored it by asking the question,” Frongillo said.

Locke’s alleged perjury was a predictable outcome of the coincidence of the government’s need and Locke’s spite, Frongillo said. The government needed Locke to prove its conspiracy charges. And Locke wanted the government’s case to succeed for revenge against a company and a man he despised.

“The unpredictable result was that the government checked their ethical obligations at the door,” Frongillo said, asserting that the government’s initial failure to disclose numerous meetings with Locke and various communications between Locke and the prosecution team met the standard of misconduct that would allow Molloy to dismiss all charges against Frongillo’s client.

He wrapped up his argument by explicitly telling Molloy what he would like to see happen this afternoon, when he expects Molloy to make a decision that could end this historic trial before any of the charges go to the jury.

“I would like to hear you say .… ‘I will not consider any of this perjury, not in my court, it’s not going to happen again,’” Frongillo said.

–Daniel Doherty (posted 1:55 p.m.)