Case goes to the jury after rebuttal argument
After each defendant had pled his case to the jury, the government was given one last chance to speak to the jury and prove it had met its heavy burden of proving the charges beyond a reasonable doubt. Kris McLean rose to rebut the closing arguments by defendants W.R. Grace, Robert Bettacchi, Henry Eschenbach, and Jack Wolter. It was after 5:30 p.m. when McLean got back to the podium on rebuttal.
Attorneys for each of the defendants had levied harsh criticisms on the prosecution and McLean acknowledged it stung a little; however, he said it is a common and occasionally effective tactic to deflect attention from themselves. But other than calling the approach a distraction, McLean did not directly address the holes illustrated by the defense.
McLean drew attention to the closing by David Bernick, which pounded on themes of “credibility” and “the whole truth.” McLean reminded the jury, “The documents don’t lie. They were created by the defendants. Please read them. They will tell you the whole story.”
When McLean tried to turn attention to the citizens of Libby by rhetorically asking, “Who followed up with the citizens of Libby?” Bernick objected. The whole courtroom seemed to be caught off guard by the interruption—the nine previous hours of argument had gone entirely uninterrupted except for stretch breaks. Judge Molloy sustained the objection as improper rebuttal and McLean stood for a long time gathering his thoughts again.
Some of the issues McLean addressed on rebuttal were accusations about the EPA’s own failings, questions about the corrupt intent elements, statements by deceased-defendant Alan Stringer regarding products with less than 1% tremolite in Libby vermiculite, how chronic exposure can still be an imminent danger, the impossibility of quantitative health risk assessments, and the plan developed under Chip Wood.
The Wood plan was characterized by the defense as a business strategy and not a conspiracy. While the defense claimed it was in direct conflict with a conspiracy concept, McLean argued that during Wood’s 1977 to 1982 CPD tenure improvements were made and good things done, but that defendant Henry Eschenbach’s 1983 disclosure to the EPA was business as usual—incomplete and misleading. McLean charged that the “core conspirators” carried on in secret under Wood, and went back to their secretive ways once Wood left CPD. McLean used the 1983 letter to point out the “remarkably similar statements” found in Grace’s 2002 response to EPA’s Request for Information letter: there is no reason to expect hazardous exposure levels from airborne fibers. “It’s the same plan, the same language to the government, for twenty years,” McLean said.
McLean took an especially hard line on defendant Jack Wolter. He acknowledged that Wolter toiled to reduce exposures to mine workers, evidence Wolter was well-aware of “the propensity to release.” Wolter, he argued, had been present from the beginning, had received “every memo on every topic,” was the chair of the tremolite study committee, and owned the flyway property at one point. This type of evidence, McLean argued, could be used to infer the defendant’s criminal conduct.
McLean made a final plea for the jurors to apply their collective common sense to “the law the court gave you and the facts we presented” and to find the defendants guilty as charged.
Before sending the jury off to deliberate, Molloy called the marshals and bailiffs forward. All took an oath to protect the jury until it has reached a unanimous verdict. The judge gave a brief constitutional lecture, drawing particular attention to the Sixth Amendment: the accused has a right to a speedy and public trial by an impartial jury. He implored the jury to remember its obligations for full and fair consideration of the arguments and evidence within the confines of the jury instructions he gave at the start of the day.
“Your judgment is extremely important to all of us,” said Molloy. The jury was escorted out by the marshals to begin deliberations.
–Kirsten Madsen (posted at 9:17 a.m.)
Posted: May 7th, 2009 under Law.
Tags: Bernick, closing arguments, deliberations, Madsen, rebuttal
Comments
Comment from neil nelson
Time May 7, 2009 at 9:28 am
Mr. Trent, thank you sir for all of your information on this trial and mostly about the epa. We are suppose to trust the government to protect us but they failed miserably. If it wasn’t for you and others showing us who really is at fault here we would be none the wiser. Grace is for sure guilty but so is the E.P.A. Thank you sir.
Comment from Terry Trent
Time May 7, 2009 at 10:17 am
Mr. Nelson – You are more than welcome. Please tell everyone you know. You may be instrumental is saving the next Libby, which is certain to come. And very nice meeting you.
Best,
Terry
Comment from Terry Trent
Time May 7, 2009 at 10:38 am
ANYONE IN LIBBY WISHING TO PARTICIPATE IN SOME EXTENDED SCIENTIFIC RESEARCH…WITHOUT BEING A LAB RAT YOURSELF…WELL YOU KNOW, NO MORE THAN YOU ALREADY ARE…..WE ARE LOOKING FOR DOGS LUNGS (FROM NATURALLY DECEASED AND AGED ANIMALS)…TO BROADEN THE RESEARCH WE HAVE ALREADY STARTED. I KNOW THIS ISN’T A PLEASANT TOPIC….BUT IT MAY PROVE IMMENSELY HELPFUL. FOR EXAMPLE CHILDREN PLAY AT THE SAME BREATHING LEVELS AS DOGS AND ARE EXPOSED TO WHATEVER DOGS ROLL IN FROM PETTING AND WRESTLING WITH THEM. IF THE DOGS HAVE IT IN THEIR LUNGS, SO DO THE CHILDREN. PLEASE CONTACT ME AT ttrent1@juno.com AND I CAN DISCUSS IT WITH YOU IN DETAIL.
BEST REGARDS,
TERRY
PS: Also there should be some mesotheliomas occurring in dogs and cats. Your veterinarians may have in the past or currently be encountering this. We certainly did in California. We would like to hear back if you know and who to contact to receive tissues.
Comment from Cindy
Time May 7, 2009 at 6:25 pm
As the trial has come to a close I would like to thank the students at U of M for this website and their efforts in recording this remarkable trial. For those of us who have been unable to attend, your reporting has helped us to follow the events in the moment, get a sense of personalities involved in the trial, and understand–though not often agree with–the decisions of Judge Molloy.
As one who was diagnosed with asbestos related disease related to living in Libby as a child while my father worked long, hard hours at the mine, I had hoped this trial would offer a degree of or sense of justice. Whether it does or does not, the efforts of many are appreciated.
Gayla, Les, the initial EPA team and many local residents worked tirelessly and their efforts are appreciated.
Despite what is often written in the comments following the days report most of us do not view ourselves as victims but rather as empowered survivors. I hope for justice but this judge has not led me to believe that it will be forthcoming. Whether the jury returns with guilty verdicts, whether the judge uses “Rule 29″ no one will be able to take away the hard work and efforts of those who brought this to trial.
Comment from John Derry
Time May 8, 2009 at 2:44 am
Terry,, I like your vision of the “beneficial outcome”. It would be a breath of fresh air,(a pun?) in these troubled times.
Although I’m sure you’ve deduced from my past postings I have a rather jaded view of such a possibility.
As you stated ” because the common man has no chance at appealing or fighting back”
There is always hope.
Meanwhile,
I’ll throw my hat in too and say, ” you have been kind, gracious, and an enormous source of information throughout these preceding s.
Thank you Terry, and all
Comment from John Derry
Time May 8, 2009 at 4:19 am
Cindy .. I am sure sorry to hear you are having health issues. But in an effort to keep things in perspective. Let us remember your dad (whom I liked) “rolled is own” using prince albert tobacco and zig zag papers. And we all know second hand smoke ain’t exactly conducive to child development. No doubt your dad’s dusty cloths didn’t help. But grace wasn’t the only one shooting you in the foot.
Comment from Leo Vidal, JD, MA, CPA
Time November 11, 2009 at 6:52 pm
This is an amazing case with an amazing history. And everyone working on this important issue should be commended.
Comment from Terry Trent
Time May 7, 2009 at 9:13 am
The outcome of this trial is anyone’s best guess. On the one hand, if the Prosecution succeeds completely, we have a disturbing victory from my point of view. Beneficial to Libby, which I like, but disturbing in what it represents. The lowest common denominator of intelligence, beginning with Andrew Schneider’s faulty assumptions at the beginning, and almost total lack of ability to process science in any meaningful way. Combined with EPA’s overwhelming desire to appear heroic and inability to correct past mistakes, errors, omissions and misleading of the public. This is a case brought by lack of understanding and emotional henchmanship lead by characters who had no desire to know what had truly happened. Not to mention the need to find a scapegoat by our most trusted public officials.
If Andrew thinks Paul Peronard and others from EPA, muscles were taut while listening to the defense, you should see how tense the smart people of our country become when they listen to the BS EPA passes along at public meetings. These “philosophies” of EPA’s, (as all of you have become aware hinge more on money than Grace’s decisions ever did), get people killed left and right in our country, every single day. Personally, I feel like puking after hearing EPA officials, because the common man has no chance at appealing or fighting back and I always take a shower to wash the stink of them off of me as soon as possible. And I do not joke about that.
On the other hand, there is hope here. There is the possibility that government may wake up and do what is right no matter what the outcome of the case. The three defendants, victims of changing rules, (none of us even likes to play monopoly with somebody who changes the rules mid game, these employees must be out of their minds knowing that the rules of life changed right before their very eyes, not just once either) may be able to walk free. The company itself would be not much the worse off if it were convicted and forced to make financial restitutions in excess of what they already have.
Best case scenario, from my point of view. The jury comes back with special findings indicting EPA for their immense negligence and manipulations. The Judge orders the prosecution to begin an investigation of EPA’s handling of the entire topic of “asbestos” and all the various misleading publications created by them and ATSDR. We all find ourselves back here a year or two from now, with EPA officials on trial…after having benefited from a year or two of their attempting to correct the outstanding problems, lies, lack of health care, compensation, clean up, and faulty regulations, motivated by guilt. Now that would prove to be some kinda beneficial outcome!!
Best to all,
TTrent