Prosecution defends itself against flurry of accusations, interruptions
Assistant U.S. Attorney, Tim Racicot, opened the afternoon by defending the Government’s theory of its case. Racicot analogized the Grace case to spraying his home for termites, arguing that “I don’t feel great if someone tells me there are not termites in 95% of my house, I am concerned about the other 5%; that is the theory of our case.”
Judge Molloy then interrupted Racicot saying that he trusted Kris McLean, Assistant U.S. Attorney leading the prosecution team, but now he feels that this trust was misplaced. Judge Molloy told Racicot that he has “no faith in anything the Government says.”
Racicot proceeded to address what he felt was the overarching point of today’s hearing: the Government’s motives. Before Racicot could begin his argument, Judge Molloy interrupted once again highlighting the Government’s professional and ethical obligations. Judge Molloy points out that not once did Kris McLean or Kevin Cassidy, also a member of the prosecution team, step up and express concern over Robert Locke’s testimony being perjured, misrepresentative or inaccurate. According to Judge Molloy, the prosecution had an obligation to take such action and they have been “bull-headed” in failing to do so. Judge Molloy continued to berate the prosecution accusing them of ignoring his orders and having an attitude of “we will do it our own way.”
Before allowing Racicot to continue, Judge Molloy specifically addressed the conduct of McLean, indicating that he has seen McLean hold stuff back in many trials. This conduct on its own is fine, it’s a trial tactic. However, Judge Molloy continued, what is not ok is to fail to disclose information, that is what happened here.
When Racicot was finally permitted to continue his argument he reasserted that the Government does have a theory of this case. Just because the defense thinks that Robert Locke is lying, doesn’t mean the Government can’t assert that they believe otherwise. Once again Judge Molloy interjected and asked Racicot, as an officer of the court and the Department of Justice, if he wants to have the jurors convict on perjured testimony. Racicot responded that he does not believe Locke perjured his testimony then was tagged out of the argument by Kevin Cassidy.
Kevin Cassidy resumed argument for the Government and addressed defendants’ accusation that the Government needed Locke to indict. According to Cassidy, this is simply not true; the Government has already said this is a document reliant case. The documents at issue that relate to Locke are the defendants’ documents, “they are their own words” and they speak for themselves.
Judge Molloy responded, asking if Cassidy was saying that Locke’s testimony was not necessary, and if that is the case then as a remedy the testimony will be stricken. Cassidy replied that even if Locke’s testimony is not necessary to indict, doesn’t mean it is not relevant. Yet again Judge Molloy interjected stating, “it may be relevant, made up, but relevant.” Judge Molloy also expressed his belief that Locke testified to facts, he made them up as he was going, but he did testify to facts.
Once again Cassidy expressed the Government’s position that they don’t believe Locke lied or made up facts in his testimony. The response from the bench was that hell will probably freeze over before he and the prosecution can agree on that fact.
After the close of Cassidy’s argument, McLean briefly took the podium in order to address the judge’s specific concerns regarding his individual prosecutorial conduct. McLean told Judge Molloy that he did not misrepresent or intentionally mislead the jury, “I have been in front of you for 13 years, I have never done that and I did not do that here.” McLean then noted that today the defendants have attacked his character as an attorney and as a prosecutor, but he is not concerned with what they say. What does matter to McLean is what the judge thinks and if he wants to ask any specific questions about his conduct then he should do so. Judge Molloy had no further questions.
-Shannon Foley
Posted: April 27th, 2009 under Law.
Tags: Foley, Locke, Racicot
Comments
Comment from Gerry Heard of Libby,Mt.
Time April 27, 2009 at 7:09 pm
did I miss something…..
Charges are dropped against one former W.R. Grace executive. Whether the rest of the Libby asbestos trial is dismissed remains up in the air.
Grace and the executives are charged with conspiring to cover up the health hazards from Libby asbestos. As the trial hits the midway point, defense attorneys are attacking the government’s case and asking it to be dismissed with prejudice, meaning it could never be filed again.
While much of the attention during a daylong hearing focused on the defense claims of perjury and hidden documents, the real bombshell came from prosecutors. That’s when the government asked Judge Robert Molloy to drop charges against Robert Walsh, saying it didn’t have enough evidence to find him guilty “beyond reasonable doubt”. Molloy agreed, leaving four individual defendants on trial.
Walsh had worked as a senior vice president for Grace. Prosecutors had accused him of knowing details of the health hazardous effecting workers at the Libby mine, and at an Ohio processing plant.
Prosecutors will present their arguments against the defense motion to dismiss all charges first thing in the morning.
Comment from Steve Erickson
Time April 27, 2009 at 11:34 pm
Gerry:
Because Molloy excluded so much of the government’s exhibits, the key documents that demonstrated his involvement are no longer in the record.
PS: Notice the inconsistency in Molloy’s ruling that the “cost/benefit” memo was unduly prejudicial and that it was also “normal business practice.”
Terry:
Even if EPA was negligent, how does that justify letting Grace and these “money at all costs” orchestrators of the tragedy off? I just don’t understand your point.
Comment from Bryan
Time April 28, 2009 at 6:53 am
Steve – “money at all costs” doesn’t mean they broke a law for which they can go to jail or be found guilty. If there was no conspiracy, there can’t be a conviction. Not being good people isn’t a crime, especially not a conspiracy.
I think most of the people arguing for finding Grace defendants guilty wouldn’t want the same standards they use applied to them in a criminal trial.
Molloy’s ruling isn’t inconsistent. Normal business practice material CAN BE unduly prejudicial, depending on how it is introduced and for what purpose. If a normal memo is introduced to show two people talked and therefor must have “conspired,” its a normal business practice but unduly prejudicial.
Comment from Terry Trent
Time April 28, 2009 at 9:33 am
Dear Steve
“Terry: Even if EPA was negligent, how does that justify letting Grace and these “money at all costs” orchestrators of the tragedy off? I just don’t understand your point”.
Steve- No I don’t think that EPA’s negligence alone should let Grace off the hook. And I think EPA is far more than just “negligent”. They actively participate in covering up in communities across America. For example almost identical things are happening in El Dorado, Fairfax Virginia and other places, as happened 38 years ago and forward in Libby. EPA has run away from these places and left behind poorly equipped individuals and companies to “handle the problem”. Without even the slightest of guidance.
So in reality, and in part, I think the totality of what happened should let Grace employees off the hook. Not the least being EPA pointing their finger at Grace saying it is all their fault. It isn’t. How would you like to have somebody like EPA as your partner in crime? Grace is just one of those partners, EPA has such Corporate and Political partners, on this subject, everywhere. All of them should take note as to what may happen to them eventually.
But there are many layers of my argument. In part the magnitude of the thing. It is huge in just America alone and WR Grace only has a very small part of it. In another part, EPA itself doesn’t share information and never has (this may be noted quite clearly in PEER’s current law suit against them in which they say they do not wish for people to know how they operate…If I were them I wouldn’t want anyone to know how I operate either..it is a crime). EPA hides their incompetence in this case, behind things like “we must not scare the people” and all of the webs and tentacles that develop from that one single concept. They are liars on many subjects and they collude to accomplish interests that are not in the best interest of the American people. Their overwhelmingly arrogant paternalism leads them down the wrong path each and every time. All of this extends from money too.
There is more, far more, but Grace in many ways was just as much a victim of EPA and the old Public Health System as many communities in America are today. Did I mention this is huge and not just the WR Grace part? The Chicago situation alone dwarfs everything that has fallen out from WR Grace. Anyway, I hope this helps explain at least a part of my thinking. I do not curry this attitude lightly, I do not take this stance to be contrary, there is way too much at stake. To me the best correction that can be made is to correct EPA and other Public Health agencies, harshly if necessary, and that is 38 years over due.
Best regards,
Terry
Comment from bruce
Time April 28, 2009 at 10:18 am
epa is getting a lot of blame , let us not forget the man who was first appointed to fill the head of the epa I think his name was GRACE !
Comment from Cathy
Time April 28, 2009 at 10:36 am
No, the first head of the EPA was not Grace. Information this easily obtained should be checked before you blather it all over. “William Ruckelshaus held the office of administrator from the agency’s first day of operation on December 4, 1970, until April 30, 1973. In two and one-half years, he laid the foundation for EPA by hiring its leaders, defining its mission, deciding priorities, and selecting an organizational structure.” http://www.epa.gov/history/publications/ruck/02.htm
Comment from Bryan
Time April 28, 2009 at 11:07 am
Cathy – GOOD for you.
Comment from Terry Trent
Time April 28, 2009 at 11:25 am
Kathy – so what went so terribly wrong with EPA? At what point did they decide it was ok to lie to the American Public? To lie to Libby?
TT
Comment from Terry Trent
Time April 28, 2009 at 11:26 am
Sorry- “Cathy”.
TT
Comment from Steve Erickson
Time April 28, 2009 at 1:57 pm
A few points.
There is a phenomenon known as the “captured agency.” This is very common with regulatory agencies. They come to see the regulated community as their “customers,” rather than the public at large. After all, the regulated community is who they constantly interact with. This is natural social and psychological reaction. Add in the constant political pressure to go easy, not enforce the law, do favors for a politician’s constituents, etc., and its a recipe that makes it extremely difficult for a regulatory agency to do its job. Since Reagan took office, the atmosphere at the federal level has been anti-regulation. If you want to draw big circles here, Grace certainly played its part in that.
Re: Two people talking is not a conspiracy. It depends on what they talk about. Is a corporation doing a cost/benefit analysis comparing the profit of selling a dangerous substance versus the potential liability from litigation evidence of conspiracy to knowingly distribute that dangerous substance? It certainly demonstrates that they knew they were distributing a dangerous substance.
And Terry, I just don’t buy that Grace is a “victim” of EPA. How, precisely, has Grace suffered any injury? Not to confuse Grace the corporate entity (and its executives) with its sick and dead workers or host communities, who had no real decision making power in the conduct of the company. And while there are lots of other problems from asbestos other than those caused by Grace, I still simply don’t understand how that somehow lets Grace off the hook. In the same way that I don’t understand how wrongdoing or negligence on the part of EPA excuses wrongdoing or negligence on the part of Grace.
Comment from Terry Trent
Time April 30, 2009 at 11:56 am
Steve Erickson – I think you need to be familiar with the other epidemic areas in America (also those in Greece and Turkey) to understand completely. In fact you will never “get it” unless you are familiar with these other epidemics. I can not bring you up to snuff in this current format. But I can say in hopes that it will help, that each of these exposure areas have started at different times than the WR Grace situation. Each is at a different phase, but all ultimately are going in identical directions (at least in the US, but Greek and Turkish officials have been every bit as bad as EPA at some point. Probably because they listen to EPA as much of the world does).
So what is easily determined by looking at the areas of epidemic that are just now starting, (El Dorado, Amador, Tuolomne, Chicago, Fairfax Virginia) is what happened in Libby oh so long ago. There are thousands of deaths and disease.
Among hundreds of things that are nearly identical to Libby some 30 or more years ago, you see Corporations and Local Government’s begging EPA, (I am not kidding they have begged) for assistance, because they do not have the expertise themselves. (Little do they know that EPA, ATSDR and CDC don’t have the expertise either, that expertise only lies among the scientists who have studied these situations all their lives, and the many students they have spawned.
What immediately becomes apparent in these situations is that EPA fakes testing procedures, lies to the public, corporations and local governments about risk. They stage official conferences for the determination of risk and rig the results. And all of us become victims, whether we are hurt directly or not. Suffering most of all is the huge integrity of science, which is now full of BS that has been published either directly by EPA or on their behalf by those less concerned about said integrity.
I can’t convince you. I am not trying to because you seem to be in a receding minority on this subject, which has taken many years to begin to see. I do however offer you the means to discover for yourself. Just look into what I suggest. I might start at this point if I were you, with the Corey Rumple “memo” and talk to Clinton Maynard Gerry Henningson, Paul Peters and Gordon Sullivan there in town. Then call some of the scientists, call me. You will quickly change your mind by some degree if not entirely agree with me.
Don’t get me wrong. WR Grace did their part and they should do everything humanly possible to help correct it including criminal sanctions against the company. (But true to from EPA is not helping WR Grace to be cooperative, as they are nto helping other entities across the United States to stem deaths and disease, and actually can not help Grace to be cooperative because EPA has way too much to hide on this subject). The employees that are standing trial are not responsible and the charges by our almost always incompetent government entities, are the wrong charges. Once again, I hope this helps.
Best regards,
Terry
Comment from Terry Trent
Time April 27, 2009 at 6:37 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.