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.)

One secret in this case, McLean said, was what only defendant W.R. Grace knew: “Despite reducing the asbestos level to tiny amounts, the defendants could not keep their products from releasing hazardous material.”  This information was critical to the defendants, and “they needed to keep it a secret in order to keep making money for as long as possible, and then to avoid liability for as long as possible.”

After reasserting its “secret” theme as to Count I – Conspiracy, McLean began listing the documents the government relies on to prove the conspiracy.  McLean used an interactive timeline to highlight the hundreds of documents in this case; each entry was color-coded to the counts – i.e. red signified obstruction, blue for an overt act.

McLean reiterated what Judge Molloy explained in the jury instructions — that the government has the burden to prove each element, of each crime, as to each individual defendant.  One element of the conspiracy charges involves proving each defendant committed an overt act in furtherance of the conspiracy’s objectives (to stay in business, and when it can longer sell asbestos, to avoid liability).  See also Government Case.

In his 90-minute closing McLean managed to touch on at least 86 documents relating to Count I; 15 of those were coded blue to signify an overt act.  The overt act documents reached back as far as 1976 to include a memo to defendant Jack Wolter regarding smoking at the Libby mine.  The document contained what McLean characterized as “detailed health information about the workers,” data that had been collected by defendant Henry Eschenbach.   This information, according to McLean, proved the defendants acted intentionally and with knowledge that their action could endanger lives.  The overt act documents stretched forward nearly 30 years to 2002.  The last overt act document McLean addressed was Grace’s 2002 response to the EPA 104(e) request, that Zonolite Attic Insulation had never been known to cause asbestos-related disease when used properly by customers in their homes.

McLean argued that the numerous documents illustrated on the timeline showed that the defendants had knowledge of the hazards in their product and considered the incredible business risk they faced if this information got out.  The conspiracy’s second object came into play in 1990 when the criminal provisions of the Clean Air Act were enacted.  The criminalization of the fiber releases meant, according to McLean, the defendants had to obstruct the government inquiries to protect the information they had been keeping secret since 1972.  Keeping their secret was yet another endangerment, McLean said.  “Together these secrets created the situation that was Libby, Montana,” said McLean.

After a brief recess, Kevin Cassidy took the podium to discuss the Clean Air Act knowing-endangerment counts, and the obstruction of justice counts.  Cassidy incorporated the knowledge evidence McLean discussed into these substantive counts.  He first addressed the obstruction counts, explaining that Grace’s actions caused further releases by delaying, misleading, and confusing the EPA’s response, the knowing endangerment counts.

Cassidy played off of the jury instructions by highlighting that knowing endangerment requires the defendant “knowingly” or “willfully caused another” to release the hazardous substance into the air.  As an example, Cassidy discussed the transfer of a silo full of vermiculite to the city of Libby without disclosing the hazard posed when the substance was disturbed.  Although the vermiculite in the silo was released when an unknowing third-party (i.e., not a defendant) disturbed the substance, the crime lies with the defendant for “willfully” causing the release.

By selling the Screening Plant to Mel & Lerah Parker without information about the hazard posed by disturbing vermiculite and making it airborne, Cassidy says Grace caused a release.  Similarly, releases at the Export Plant were caused by Grace due to its willful non-disclosure to Burnett who was leasing the property.

Cassidy took up the imminent danger theory by reviewing the expert testimony presented by Dr. Lockey, Dr. Lemen, Dr. Miller, and Dr. Whitehouse.

Using an aerial photo of Libby, with red and green dots showing where asbestos had been detected around town, Cassidy wrapped up his argument, saying, “Look at this.  The town is full of [detections].”  He thanked the jury for its attention and patience and asked them to do the same to defense counsel.  Court was then recessed until 1:00 p.m.

–Kirsten Madsen (posted at 9:34 p.m.)

Mr. Frongillo on the attack: “You can’t trust the government!”

Mr. Frongillo, representing defendant Robert Bettacchi, as well as the attorneys representing the remaining defendants, were constrained to 40 minutes for closing remarks. Mr. Frongillo was visibly rushed in his presentation, for which he employed two large poster boards as well as a timeline and evidence via the computer monitors. The poster boards, which he touched on briefly by asking the jury to “write these numbers down,” apparently were the exhibits entered by the government that were offset by those entered by the defense for Counts 3 & 4.

Mr. Frongillo had many harsh criticisms of the government peppered throughout his statement, ranging from alleging the government was out to “win at all cost” to accusing them of “unfair play and deception.” He also attacked the Parkers, calling them liars, and stating that the case should have stayed a civil suit between them and Grace, and that people shouldn’t go to jail based on “perjured testimony.” Mrs. Parker left the courtroom shortly after this statement. He also had some choice words for the EPA, stating that if a crime was committed, it was on their watch, and showed a public press response from the EPA to Libby in 2000 stating there was no immediate health risk requiring them to move families or stop workers.

Due to the time constraints, the opportunity for Mr. Frongillo to review each document was impossible, so he limited his argument to show Mr. Bettacchi was simply doing his job for Grace, and didn’t willfully cause danger. As to the conspiracy charge, Mr. Frongillo pointed to printed material shipped with their products that warned customers of asbestos danger. Mr. Frongillo ended by asking the jury for a swift verdict that Mr. Bettacchi be found not guilty.

Mr. Krakoff blames case as a “dereliction of duty by the government!”

Mr. Krakoff, representing defendant Eschenbach , also attacked the government as trying to “pull the wool over your eyes.” He then reviewed some of the evidence in light of Mr. Eschenbach’s job as a health and safety resource for CPD. He argued that the health monitoring showed Grace that in 1977 things “had to change” and that a plan was needed. He claimed that Dr. McMahon stated an epidemiology study was not right at that time due to the latency period, but instead it was better to track workers to identify any changes, which Mr. Eschenbach did from 1977-86. He also stated there was only one meeting between the defendant and NIOSH in which Mr. Eschenbach said the deaths in Libby were due to cancer. “He was all about learning and reporting to management and disclosing to the government” according to Mr. Krakoff.

The attorney then pointed to the government and asked “In the face of clear evidence- what does McLean come up with now?” He then moved onto the conspiracy charge by attacking the government by stating it was a “flagrant abuse” to say Grace opposed the NIOSH study, instead arguing that Grace disagreed with the technique NIOSH would use. As to the element of Knowing Endangerment, Mr. Krakoff argued that there was no evidence that Mr. Eschenbach knew there was any imminent danger to the people of Libby, though he knew it posed a serious health risk to the workers. Mr. Krakoff then stated that there was “no way” Mr. Eschenbach would endanger the families because it would “Violate every principal for which he stands.” Mr. Krakoff ended his argument by literally pointing at the prosecution and accusing them of manipulating the facts, distorting the truth, violating the Constitution, and finally by stating “this entire case is wrong.”

Ms. Kubota: Jack Wolter as Dr. Jekyll and Mr. Hyde?

Ms. Kubota, representing defendant Jack Wolter, concluded the defense closing arguments. Her theme was quickly apparent – “this case is fiction” she stated, after likening the government’s portrayal of her client as a Dr. Jekyll/Mr. Hyde persona, complete with a movie poster. Rather than robustly hammering away at the government, Ms. Kubota remained congenial and peppered her statement with quaint statements, though her argument in some ways tested the boundaries of what a closing statement is generally constrained to. She spoke of events that had not been uncovered during the trial, such as Mr.Wolter’s purchase of the property next to the Parkers where he at one point intended to build a home, as well as voicing feelings the defendant had, who had not taken the stand. (It should be noted that none of the defendants chose to take the stand, so any reference made by the attorneys as to their client’s feelings or thoughts was never evidenced on the record.)

Ms. Kubota claimed that Mr. Wolter was a “doer” and that was why he was copied on many of the incriminating memos from Grace. For the knowledge and intent requirement, she stated “every time I read [the instructions] I want to like take an aspirin and lay down on the couch” which drew a few smiles from the exhausted jury. She then argued that there was a lack of proof that Mr. Wolter knew it was a danger, but rather that Mr. Wolter believed it was safe. Finally she argued the government case fails because they had to prove an active involvement in his participation in the sale of the property, the only evidence of which was Mr. Wolter being cc’d on a letter from Stringer to Libby in the export plant sale. She ended by stating powerfully that “a tragedy is different thing than a crime, and the government has failed to prove Jack has committed any crime.”

Hannah Stone, posted 9:30 pm

Bernick also argued this case was not about criminal charges, it was about the prosecution taking the script written by the EPA and then using that for the counts in the Superseding Indictment.  Bernick argued the imminent hazard warning became the criminal endangerment charges.  Next, the 104(e) responses and the mine access negotiations became the obstruction of justice charges.

Bernick presented specific jury instructions for argument as well.  Jury instruction # 2 said that if there is an innocent explanation for the defendant’s conduct, as well an explanation that the defendant was engaged in wrongdoing, the government has the burden to prove they engaged in wrongdoing beyond a reasonable doubt.  Bernick presented this while saying the government could not prove the wrongdoing, therefore, the innocent behavior explanation is the one the jury should believe.

Another jury instruction Bernick used was jury instruction # 50.  This instructed the jury to look at the intent in the obstruction of justice charge. The instruction requires a corrupt intent.  Bernick argued there was such intent with the defendants.  He painted the mine access as a disagreement that became more heated and hostile as the clean up progressed. Furthermore, he argued that the EPA was asking questions about things when the agency already had the answers.  Bernick argued this evidence does not fit a corrupt intent, because the EPA was on a witchhunt.

Bernick asked the court for a brief break, as he had been talking for over an hour at this point.  Judge Molloy called for a 10 minute recess, after which Bernick would resume his closing.

– Maggie Braun (posted at 4:00 pm)

Then counsel discussed the length of time for their respective closing arguments. Molloy granted the prosecution three hours and fifteen minutes to present its closing. The defense was granted four hours. Based on statements made to Molloy, McLean will present an hour and a half closing specifically addressing the conspiracy count. The rest of the time will be for Kevin Cassidy to argue the remaining seven counts (CAA and obstruction). David Bernick will be the first to close for the defense, taking between one hour and fifteen minutes and two hours. Each of the remaining attorneys — Carolyn Kubota, Thomas Frongillo, and David Krakoff — will be allowed forty minutes.

After counsel concluded the closing logistics, the jurors returned and Judge Molloy read them the jury instructions. Taking approximately 55 minutes, Molloy articulated the eight counts against the defendants, the burden of proof, and the jury’s responsibility to weigh both direct and circumstantial evidence. Given the complexity of the case, the instructions were extremely clear. They framed the issues with such detail that when released, they will provide a tremendous resource for future Clean Air Act litigation.

After the jury was instructed, McLean commenced his closing argument. He began by thanking the jurors for their service.

Next, McLean apologized to the jury for the Brady and Giglio violations with Robert Locke, stating, “I blame myself for that, and for the results of my mistake.”

He then explained that this case is one about “right and wrong —  a simple case.” He asked the jury to use its “common sense knowledge” when deliberating on the evidence in this case, tand claimed, “If you do that, I expect you to return a guilty verdict against Grace.”

McLean then reestablished the theme of his opening argument almost three months ago: “the secret.” McLean repeatedly used the word “secret” as he discussed tremolite, cost-benefit analysis, and the conduct of Grace. According to McLean, the secret lies in the documents.

“The documents tell the story here. Memories fade, people forget things. But the documents don’t. The documents show Grace was in the business of money… and they got out of the business to protect their secret,” stated McLean in his constant, unwavering tone.

– Christopher Orman (posted 11:15 a.m.)

– Katy Furlong (posted 5:25 p.m.)

Bernick showed Peronard several letters and memoranda to, from, and between EPA employees and administrators, including a few statements in which Peronard purportedly stated that he would not return to Libby unless he could be “king.” Peronard showed great unwillingness to give simple responses to Bernick’s questions, instead vociferously objecting to Bernick’s questions and giving long and difficult responses. Bernick several times asked for Judge Molloy to instruct Peronard to answer the questions, and occasionally moved the court to strike Peronard’s testimony as non-responsive.

Once Bernick finished, prosecutor Kevin Cassidy asked Peronard a much shorter series of questions to clarify Peronard’s difficulty with Bernick’s questions. Peronard reiterated his concerns with Bernick’s questions, and also stated that he had wanted to be “king” in the sense that he wanted to be in charge of the EPA operation in Libby, as the EPA effort had previously suffered from several people concurrently sharing authority, which had led to confusion and wasted effort.

At the conclusion of Peronard’s testimony, the three individual defendants rested. Bernick, for W.R. Grace, wanted to introduce one last exhibit, a summary of Peronard’s statements to the Libby Community Advisory Group made in 2003. This required the jury to return for just a few minutes, at which time the exhibit was introduced and Cassidy asked a few questions.

At this point, the evidentiary portion of the trial was done. Molloy told the jurors to return tomorrow at 8:30 a.m. for closing arguments, with Molloy promising to hold the attorneys to strict time limits. With the jury excused, Molloy then prepared to hold argument on jury instructions for the rest of the afternoon, and if need be, into the evening.

Mark Lancaster – posted 5 p.m.

The first witness of the morning, former Libby city attorney Mark Fennessey, testified to the environmental concerns the city had with property Grace donated to the city. While the city planned to use the property to attract industry to the area, the environmental concerns of asbestos contamination and diesel fuel spills raised red flags.

However, Fennessey testified that he, city council, and the mayor had been advised of the location of the hazards and the specific type of risks they threatened. In fact, the city acknowledged that it has been given sufficient opportunity to examine and assess the three subject areas that were at risk. Further, the city said it would assume full responsibility for the costs of operating, maintaining, and removing or remediating the three subject areas as may be required by law. However, Fennessey said Grace took further action to clean up the area, and even postponed closing on the property in order to mitigate potential risks.

On cross, Kris McLean brought out that while everyone was aware of the asbestos issues, not everyone was clear on the immediate health problems associated with the property. In fact, none of Grace’s disclosures spoke directly to the health problems of the property.

Then, Patrick O’Toole for Mr. Bettacchi called the next witness. Joseph Rogan, a former Grace controller, further testified to the donation of Grace property to the city of Libby. While the city would not agree to provide indemnity to Grace against third party claims or against currently unknown issues on the land, Rogan said Grace did not have any reason to believe that any further environmental issues would be identified in the future.

Finally, Frongillo called Melvin Parker back to the stand. What started as a professional exchange quickly escalated to a battle of divergent viewpoints with coarse words and harsh accusations. Frongillo’s main attack centered on the date of Parker’s awareness of the health risk of his property.

Frongillo pressed Parker about a conversation he had with Patrick Plantenberg who had worked for the state on the reclamation of the Grace property. Plantenberg had done an extensive analysis on the mine, and claimed to have supplied Parker with language that specifically warned Parker of the health risks associated with the property. However, Parker stood strong in claiming that he had never seen the analysis, and that he did not base any of his actions on the information contained within it.

To emphasize his point, Frongillo compared the language in Parker’s management plan with that of the environmental analysis Parker claimed to have never seen. He took Parker word for word through two paragraphs of the environmental analysis, and then compared it side by side to language from his own management plan. Frongillo started accusing Parker of plagiarizing the analysis, which would make it impossible for Parker to have never seen the document. Parker maintained, as he had testified before, that the language came from an independent source, and that Mr. Frongillo was welcome to investigate the language from that document if he liked.

Frongillo then launched his full-scale attack on Parker, claiming he lied and plagiarized to protect his own interests. “You care more about the money that is sitting in your pocket than you care about this criminal trial,” cried Frongillo. Frongillo then told Parker he had one more issue he needed Parker to resolve before he could go back to where he came from.

Over Parker’s objections, Frongillo attempted to corner Parker into saying he wanted to keep the vermiculite on the property. Parker resisted Frongillo’s advances by claiming that the vermiculite was no good to him unless it had already popped, and further stated that he had done Grace a favor by relieving them of their obligation to remove the material. Frongillo never quite got the words of surrender he was looking for, but he continued to press Parker further. Parker finally called the last shot when he told Frongillo that he was starting to sound like he was done.

Frustrated, Frongillo spouted, “You went forward with the deal with your eyes wide open,” and the morning was called for recess.

– Kathryn Mazurek (10:25 a.m.)

Dr. Moolgavkar testified that EPA estimates overestimate the risk of lung cancer associated with exposure to Libby asbestos and that any accurate risk assessment should have been based on Libby-specific data. Moolgavkar testified that, “In referring to cancer, the Libby samples are less potent or less toxic than those used in the EPA estimates. For mesothelioma, there is no data indicating an increased risk for exposure greater than 15 fibers per milli-year.”

Direct examination of Dr. Moolgavkar then moved to the findings of the ATSDR Mortality Study, which focused on community exposures, which were at a much lower dose than occupational exposures. The study compared mortality rates in Lincoln County with background rates for the state of Montana and the United States. Moolgavkar testified that, looking only at cancer rates, the difference between Lincoln County and background rates was statistically insignificant. Similarly, he testified to statistically insignificant rates for mesothelioma, COPD and asbestosis. He stated, “There is no observed risk increase from environmental exposure.”

Dr. Moolgavkar went on to impeach some of James Lockey’s prior testimony, stating that it is probable that Lockey underestimated exposure levels before 1973. Moolgavkar also testified that Lockey overestimated the asbestos potency in Libby.

At 4:13 prosecutor Kris McLean began his cross-examination. Moolgavkar was consistently resistant to McLean’s lines of questioning. At on point, McLean asked Dr. Moolgavkar, “There are many exposure pathways, other than being a miner. Is that part of your determination?” To which Moolgavkar responded, “That is not what I said, for the second time.”

On cross, Moolgavkar testified that if you have an epidemiological study, it trumps any other kind of evidence.

Moolgavkar was particularly resistant to one of McLean’s questions. When asked if one needs dose information to determine the cause of an asbestos related disease, Moolgavkar responded, “Are you prejudging the cause? If you’re prejudging the cause then the question is circular. If you prejudge that a disease is caused by asbestos, then the diseased is caused by asbestos. I cannot answer the question.”

Mclean did manage to impeach Dr. Moolgavkar, over objection by Bernick, eliciting that W.R. Grace paid him for his research and that he had worked for the company in prior litigation. McLean also used his cross-examination to request expert preparation materials that apparently hadn’t been produced to the prosecution. Judge Molloy directed Moolgavkar to provided all the requested data.

– Bert Certain 12:00 pm

During the week, the parties and the public have waited anxiously for Judge Molloy to rule on the defendants’ motions for acquittal under Rule 29.  The tension mounted throughout the week as the prosecution dismissed two individual defendants:  Robert Walsh and William McCaig. 

During yesterday’s afternoon recess, Judge Molloy asked for all counsel in his chambers.  Upon returning to the courtroom, the case proceeded with defense witnesses.  It was not until after the jury was excused for the day that the subject of the in-chambers conference became apparent.  David Krakoff, representing defendant Eschenbach, asked the court to reconsider his “inclination” to reserve ruling under Rule 29(b). 

Rule 29(b) allows a court to let a case go to the jury for a decision and then grants the court the power to dismiss the case in the event the jury returns a verdict against the defendants.  Rule 29(b) states:

The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.

While the court stated that he had not made up his mind on the issue, it was his “inclination” to let the jury make a decision and reserve his ruling on acquittal until after the verdict.  In other words, if the jury convicts, the court would consider whether to overturn the convictions of the defendants.  If the jury acquits, then the court would not have to make a ruling on the defendants’ motions for acquittal.

It was this point that David Krakoff argued emotionally to Judge Molloy yesterday.  Krakoff urged the court not to wait until after a jury verdict of conviction because then the “momentum” is in favor of affirming the jury’s verdict.  Krakoff suggested that his experience has been that judges have been unwilling to overturn jury verdicts.  Realizing that his argument may have suggested that Judge Molloy was unwilling to make a difficult decision in the face of public opinion, Krakoff immediately back-pedalled.  Judge Molloy related an ancedote about another case in which he had gone against the grain of other judges’ rulings and expressed his ability to make difficult decisions that he felt were legally compelled.

Judge Molloy told the parties that the jury would hear closing arguments in the case on Thursday.

Earlier in the trial, and several times in his orders, Judge Molloy has expressed his disagreement with the government’s case as to conspiracy and the Clean Air Act violations.  Judge Molloy has repeatedly asked the prosecution for their evidence of conspiracy and to explain their theory of conspiracy.  Since the only charge Eschenbach is facing is conspiracy, it appears that the judge will not eliminate the conspiracy charge from the jury’s consideration.  The prosecution will have the opportunity to explain their theory behind the conspiracy and convince the jury that there is sufficient evidence of conspiracy to convict beyond a reasonable doubt.  Since Eschenbach is not charged with violating the Clean Air Act, the court’s inclination sheds no light on possible acquittals on the Clean Air Act counts (Counts II, III, and IV of the indictment).

                                            — Andrew King-Ries (posted 5/1/09, 6:45 a.m.)