To Danielle Bundrock, a University of Montana senior, the verdicts sounded a lot like, “No justice.”

The pain at the center of the W.R Grace trial is fresh for her. Her step-grandpa died on Easter in Libby from lung cancer due to asbestos exposure. Another 13 members of her family are diagnosed with asbestos-related disease. None of them worked at the vermiculite mine at the center of allegations of corporate wrongdoing.

“This is really disappointing,” said Bundrock when she heard that W.R Grace and three of its executives had been acquitted on May 9 of  all eight criminal charges filed against them. The charges included conspiracy, Clean Air Act violations, and obstruction of justice.  “It would have been a lot better if I had heard it went the other way. Someone has to be to blame for all the hurt that has happened to the people of Libby.”

Bundrock takes some sollace in the tears shed by some jurors as the verdict was read. They too, must have felt that Grace was accountable, she said, but must not have been shown the evidence they needed for a conviction.

About 120 students from Lincoln County attended the University of  Montana during the three months W.R. Grace trial was underway a mile from campus. According to the registrar’s office, most come from Libby, Troy and Eureka. And while they traveled the same roads to reach Missoula, they are not of one mind about the the verdict in the Grace trial.

UM senior and Libby native Brittney Larson, whose father has asbestosis from playing on baseball fields contaminated with asbestos as a child, agreed with Bundrock that justice was not served.

“I think I knew from the very beginning by reading stories about Judge Molloy’ s reactions to a lot of things, and his restrictions to a lot of things that it wasn’t going to be a good trial,” Larson said.

The acquittal seemed to be the product of legal restrictions such as the statute of limitations, which only allowed evidence prior to 1999 for the conspiracy count. Grace’s corporate power, and a weak case presented by the prosecution, also seemed to work against a conviction, Larson said.

Laws and trial rules are what set America apart, said Vance Vincent.

“As far as justice goes I’m happy because (a guilty verdict) would have showed our system is screwed – that it’s guilty until proven innocent – and that’s not how it goes,” Vincent said.

Vincent, a Libby native and UM senior in environmental studies, said he felt the verdict was fair because the prosecution “could not prove without a shadow of a doubt” that Grace was conspiring to keep health concerns a secret. Although the asbestos-related deaths in Libby are awful, “emotions cannot drive guilty, not-guilty,” Vincent added.

Vincent said that his father Bruce Vincent, founder and owner of Environomics, an environmental consulting firm based in Libby, was friends with Alan Stringer, Libby’s deceased mine manager who also faced criminal charges, and felt that Stringer was discovering the health risks of Libby’s vermiculite at the same rate as the rest of Libby. Stringer wouldn’t have hid the health risks of asbestos, especially because his children’s school yards were filled with the contaminated vermiculite, Vincent said.

Kyle Nelson, a third year UM environmental law student and Libby native, also felt that the verdict was fair. Nelson is also a legal intern with the Missoula office of Browning, Kaleczyc Berry & Hoven, the firm that provided local counsel to defendant Robert Walsh, although Nelson was not involved in the case.

While some people have claimed that power and money influenced the verdict, Nelson thinks differently.

“This is a jury of Montanans who listened to all of the evidence,” Nelson said, adding that many people assume Grace should have been guilty based on an “incomplete story,” but that the jury got the “full story” and determined they weren’t guilty.

It’s also important to remember that this wasn’t a murder trial, he added.

The prosecution might have had more success in civil instead of criminal court because of the difficulty of this case, Nelson said. For example, it’s much easier to see that a robber is guilty because you can catch him in the house, but proving that a company knowingly released harmful chemicals into a community is less straight forward and much harder to prove, he said.

Lee Mickelson, a UM senior and Libby native, said he didn’t know if justice was served or not.

“I realize it is very difficult to prove conspiracy and frankly I’m not sure if they were really ‘knowingly’ harming the town,” Mickelson said. “But I think the reason so many of us react negatively to the verdict is it makes it seem like anyone can cause an environmental disaster, but with enough money can buy themselves out of responsibility.

“Did they commit a conspiracy to harm the town? Probably not, but they did make a lot of money making a big mess and putting a lot of people at risk. I think a lot of people were looking to the case as a way of saying ‘You can’t just go around sh—ing on people!’ and the acquittal obviously dashed that to the ground.”

Some worry that the not-guilty verdict will affect health care provided for those with asbestos-related disease.

“In the long term its going to slow down any recovery these people can get,” said Mike Shilling, a UM junior from Libby. “All they can give people (affected by asbestos) is an oxygen bottle, and that’s now.”

Shilling said that with the not-guilty verdict “it’s hard to imagine how it can get worse.”

“I guess there’s going to be no improvement, which is unfortunate,” he added.

Others are concerned that this verdict will negatively affect any future civil charges.

“This is going to affect any civil proceedings now because they will be able to reference that there was no criminal or malicious action committed,” said Necia Wayland-Smith, a UM senior from Libby. “It’s hard to swallow.”

Some are looking at the verdict in relation to their jobs in Libby.

Regardless of the verdict, Libby’s asbestos contamination will “continue to be dealt with for many years to come — it’s not just a problem for folks who were there back when the mine was up and running,” said Pete Mason, a UM graduate and Libby native who works as a wildland firefighter in Libby during the summer.

Mason said that an example of these long-term affects is a 33,000 acre plot of land in Libby that is off limits to fire crews if a fire is burning because it is a health hazard. Many of the trees around the mine are being tested because they have asbestos-laced dust lodged into their tree bark, he added.

Lauren Gautreaux, a UM graduate from Libby who also worked for the town’s Center for Asbestos Related Disease, said that whether Grace knowingly endangered people’s lives or not “they were still pretty responsible for what happened” and shouldn’t have “sidestepped” the issue like they did.

“The town as a whole feels kind of defeated,” Gautreaux said. “It was one thing the whole town sort of stood against.”

However, many still aren’t accepting the verdict as a defeat.

“I feel like we have a lot of support, especially from our senators and representatives,” Larson said. “Hopefully this trial will open more people’s eyes and more people will research it and learn about it and help us fight.”

– Carmen George

(Posted May 19)

The company and executives were accused of knowingly exposing residents and mine workers to toxic asbestos, a byproduct of the company’s vermiculite mine in Libby, Mont.

In closing the trial, Judge Donald Molloy thanked the jurors for their service, and said that at 35 days the trial was the longest he has overseen.

“I want to thank the jury,” Molloy said. “This is truly a reflection of how we are supposed to govern ourselves – it is up to the people.”

Federal studies blame asbestos from the mine operations for Libby’s high rates of asbestosis and lung cancer. Deaths in Libby from asbestosis have been found to be 40 to 80 times higher than expected and deaths from lung cancer 20 to 30 percent higher.

Acknowledging the town’s troubled past, attorneys for the defense described for the jury a company that tried to improve conditions in Libby once it became aware a danger existed.  The government, according to David Bernick, lead attorney for W.R. Grace, pursued a case based on politics and emotions rather than law.

“The jury saw through the haze of 10 years of politics and did the right thing” Bernick said.

The verdict stunned many with a personal interest in the case.

“This is really disappointing,” said Danielle Bundrock, a senior from Libby attending the University of Montana. Bundrock said her step-grandfather died of asbestos related disease this past Easter. Thirteen other members of her family are also afflicted, she said.

“It would have been a lot better if I had heard it went the other way,” she said.  “Someone has to be to blame for all the hurt that has happened to the people of Libby.”

Frustration, and an intact gag order
Rick Bass, a writer whose work focused on the Libby region, said as he left the courtroom that the verdict has profound implications for the way industry is held accountable in Montana.

“It’s not good news for Libby. I worry it will have a ripple effect statewide for corporations working in Montana,” Bass said. “Same thing happened in Butte. They cut the top off a mountain and left a mess behind …  I worry they’ll breathe a sigh of relief.”

A woman who came to court to see the verdict of a trial she’d watched unfold in the papers said simply, “I’m pissed,” as she stood to leave. She declined to give her name.

Attorneys for the prosecution, Kris McLean and Kevin Cassidy, walked the quick two blocks from the federal courthouse to their office. McLean said they’d like to comment on the verdict but couldn’t.

The U.S. Attorneys Office released a statement from Billings: “The jury has spoken, and we thank them for their service. We are refraining from further comment at this juncture because one individual awaits trial in conjunction with this case.”

A gag order in place since 2005 will remain in place for McLean and Cassidy, until the trial of defendant Mario Favorito, which is scheduled for September, according to Jessica Fehr, a spokeswoman for the U.S. Attorneys Office in Billings.

But McLean’s supporters gave some indication of the prosecution’s immediate plans:

“All in all, I think it was a good magic show by the defense,” said Tyson McLean, 23, McLean’s oldest son.

“It’s time to mellow out for a while, do some fishing with dad.”

Defendants’ quiet relief
Defendants Henry Eschenbach and Jack Wolter left the courtroom with their supporters, calm, quiet and relieved.

“I‘m just elated. I’m elated that my husband has been exonerated and I’ll say no more,” Doris Eschenbach said.

“For me, it’s been tough,” Henry Eschenbach said.  “But it’s been far tougher for my wife, my three daughters and my five grandchildren. I’ve always thought throughout this case, ‘I don’t want to embarrass my grandchildren.”

Dozens of attorneys and paralegals for the defendants formed a receiving line of sorts as the lead attorneys and defendants exited the courtroom.

Carolyn Kubota, Thomas Frongillo, David Krakoff, as well as Bernick, passed through the line, exchanging hugs, handshakes and high fives with the lawyers and staff who have supported their effort for the past three months.

Kubota, who represented Wolter, a former Grace vice president, gave way to tears outside the courtroom.

“It would not be right to say we expected it, but we hoped for it,” Kubota said.  “Jack is one of the most honorable men I’ve ever met. An experience like this leaves scars forever. It’s good to have closure and to have his name cleared.”

“It’s one of those things that gives you goose bumps,” she said.

Thomas Frongillo, who often served as supporting actor to Bernick’s lead, said he wasn’t surprised at the verdict. “I expected it,” he said. Frongillo represented former Grace senior vice president Robert Bettacchi.

“I don’t believe a crime was committed,” Frongillo said. “We felt they overstated some of the evidence in this case.”

Outside the courthouse, Eschenbach’s attorney David Krakoff, relayed the news on his cell phone: “We won! Unbelievable. Unbelievable. What a feeling. They’ve been through hell … Total vindication.”

By the Grace Case Project reporters

– Laura Lundquist

The case against W.R. Grace and five of its former executives – now excluding William McCaig and Robert Walsh who were recently acquitted – was handed over to the jury Wednesday evening after nearly 10 hours of closing arguments from five separate attorneys. The trial, which began on Feb. 19, has been ongoing for nearly 11 weeks.

“Your judgment is extremely important to all of us,” Molloy told a seemingly exhausted jury. “We will wait for a verdict.”

Wednesday’s late afternoon session quickly turned to evening as the court heard closing arguments from defense attorneys Thomas Frongillo, David Krakoff and Carolyn Kubota, followed by a rebuttal argument from prosecutor Kris McLean. Earlier in the day the court heard closing arguments from prosecuting attorneys Kris McLean and Kevin Cassidy, as well as lead W.R. Grace attorney David Bernick.

At roughly 3:15 p.m., Frongillo stepped in front of the jury to defend his client and former senior vice president of W.R. Grace and Co., Robert Bettacchi – charged with three counts, including conspiracy to pollute and defraud as well as two counts of knowing endangerment.

Frongillo argued that the prosecution tried to give the jury the impression that it was illegal for W.R. Grace to sell products that contained vermiculite, although vermiculite has never been illegal to sell, use or mine.

“This case has been tainted … you can’t trust the government,” Frongillo said. “The game that they’re playing is that the end justifies the means.”

Frongillo contended the knowing endangerment charge at the export plant was “ridiculous” since the charge’s timeline occurred five and a half years after Bettacchi signed the deed for its sale, after having received legal advice.

“This is an outlandish charge that should never have been brought if the Department of Justice had been doing what it should,” he said. “If a crime was committed at the export plant, it happened under EPA watch … they were (already) there.”

Turning his attention to count three, knowing endangerment at the screening plant, Frongillo spoke strongly against the reliability of Mel and Lerah Parker, who he said closed on the property with “their eyes wide open.”

“Money was more important to the Parkers than being truthful with you,” Frongillo told the jury, causing Lerah to cry and leave the courtroom. “You can’t consider that kind of evidence.”

Ultimately, Frongillo said, the government has lost sight of what its goal is. “Now you [the jury] have to ensure that justice will be done … and you will when you return a swift verdict (of not guilty),” he said with poise.

Following Frongillo, Krakoff approached the bench, representing Henry Eschenbach, the former industrial hygienist and later director of health, safety and toxicology for Grace. Eschenbach, unlike Bettacchi, is charged with only one count of conspiring to pollute and defraud.

Krakoff argued his client worked to protect the workers in Libby, that he learned of the adverse health effects of tremolite asbestos and then reported that information to the government, EPA and NIOSH.  

Citing a letter Eschenbach wrote to the EPA about his findings at the mine site, Krakoff said Eschenbach’s goal, without a doubt, was “to help them (EPA) understand the health issues at Libby.”

“What we’ve seen in this long trial … is the awesome, the awesome power of the government. When they want something they will stop at nothing,” Krakoff said sternly. “This entire case is wrong. What’s right is to give him [Eschenbach] back his life and find him not guilty.”

Carolyn Kubota followed Krakoff, representing Jack Wolter, who served as the vice president of Grace’s construction product division from 1975 to 1994. Like Bettacchi, he is charged with conspiracy to pollute and defraud and two counts of knowing endangerment.

Kubota argued that to believe the government’s case about Wolter, you would have to believe he is the Grace version of Dr. Jekyll and Mr. Hyde.

Wolter had intended to develop a piece of land adjacent to the screening plant site, that Kubota said contained vermiculite asbestos much like the land the Parkers bought.

“When Jack (Wolter) visited Libby, he was absolutely unworried about asbestos exposure,” she said, arguing the implausibility of him knowingly endangering his own family.

“The government has completely and utterly failed to prove these charges … we ask you to acquit Jack Wolter on all three charges,” she pleaded.

Following closing arguments from the defense, the prosecution was allowed a 45 minute rebuttal argument, which began just before 6 p.m.

McLean focused his rebuttal on the defense’s use of “obtuse language” in the documents presented to the jury throughout its case, which he said is not “full disclosure” but rather “misleading disclosure.”

“What we ask you as jurors to do is apply your collective common sense … go back into the jury room and read this evidence,” McLean said. “The government is confident that when you do that … you will find them guilty as charged.”

With these words, the day’s closing arguments wrapped up. The bailiffs and marshals were then called forward to take their oath, swearing to keep the jury sequestered until an ultimate verdict is reached.

Molloy then read a portion of the Sixth Amendment of the Constitution to the jury, reminding them of the importance of their position and decision. After a few more routine housekeeping items, the eleven-hour court day concluded.

Court will remain in recess until the sequestered jury has reached a verdict. The GraceCase team will have more for you then. Stay tuned for this trial’s conclusion.

 – Chris D’Angelo (posted 9:50 p.m.)

“The whole case, a politically driven case, is tainted,” Bernick said. “Has the government been credible in the prosecution of this case? No!”

Bernick’s direction was clear from the opening statement.

“I want to start out with one word: credibility,” Bernick said.

In front of a packed courtroom, Bernick argued for close to two hours, checking with Judge Donald Molloy repeatedly, as Molloy had initially limited Bernick to an hour and fifteen minutes.  Bernick portrayed the prosecution as a desperate group clinging to documents taken out of context and only using witnesses who were on their side.

While admitting that Libby residents have undergone incredible hardships, he said that is not what the case is about.

“The tragedy of Libby — Yes, people got sick.  No, that is not the charge,” Bernick said.

One charge after another was analyzed, scrutinized, and eventually declared false by Bernick in the “dark flower” that he used to symbolize the prosecution’s case.

Bernick spent a considerable amount of time looking at the conspiracy charge.

The charts accompanying Bernick gave the jury a visual of the charges, as well as aiding Bernick in laying out the perceived wrongs of the government’s case.

Titles of the charts ranged from “Government showed allegiance to Libby, not the law,” to “No good deed goes unpunished.”

“It’s not about if we have a document in our files.  There has to be an agreement.  It’s not enough to just meet and discuss business matters.  They must find a plan to commit a crime,” Bernick said.

The conspiracy charge, Bernick said, can only be proven with that complicit “agreement.”

“There is not a single person that has testified about an agreement to commit a crime,” Bernick said.  “There was a plan, but it was a business plan calling for compliance and cooperation (with new government guidelines).  Even Locke and Venuti (government witnesses) say the plan was to comply.  Without an agreement they got nothing.”

A conviction based on a knowing release and endangerment in this trial requires proof that a defendant knowingly committed a “heinous crime,” the release of asbestos, that would put people in imminent danger, Bernick said.

That danger has to be more likely than not — “a greater than 50 percent chance” — to cause death or serious bodily injury to a person exposed to the release.  Bernick said of 1,800 people from Libby that were tested, only 2 percent developed asbestosis and 18 percent had pleural diseases.

If the number did happen to exceed 50 percent, the defendant could only be found guilty if the release came after 1990 when the criminal provisions of the Clean Air Act were passed.

“They have to show that stuff went into the air (after that date).  It has to be a new release, and has to show the first release after 1999,” Bernick said.

Government witnesses were scrutinized by the defense through the trial and Bernick used that to attack the prosecution’s credibility.  He repeatedly brought up witness’ testimony detailing the conversations they had with the government prior to their day in court, trying to make a case that the government had improperly coached its witnesses.

Every time Bernick recalled these instances, he said the government had either not shown the witness the entire document, had only given experts figures from documents, and not the whole document, or the witness simply had no knowledge of the document in question.

“They turned their witnesses into puppets by giving them only particular documents to get to this dark flower,” Bernick said. “The government only used experts that were insiders they knew they could count on.”

Bernick ended by telling the jury it was especially important to establish that the judicial system works in this area of the country, where Grace’s reputation, he said, is not good.

He closed with a plea to the jury:

“Treat the company the same way you would perceive an individual.  My client is a company comprised of people.  If they are found guilty, there will be a penalty, and the company will be a convicted criminal. ”

–Josh Benham (posted at 4:55 P.M.)

Wednesday morning, the prosecution packaged its entire case into three hours for the jury, connecting specific evidence with each of the eight counts against W.R. Grace and the remaining three defendants. Government attorney Kris McLean covered the conspiracy count, followed by attorney Kevin Cassidy outlining the remaining counts of knowing endangerment and obstruction of justice. 

“This is a case of right and wrong,” McLean said. “This is about holding the defendants accountable for a horrible wrong.” 

Opening with the same statement he used on April 28 to convince Judge Donald Molloy that the government had made a defensible case, McLean took close to two hours to reconstruct the government’s conspiracy case. 

McLean said the government had to use circumstantial evidence – documents – because it is difficult to show direct evidence of intent. After reiterating that the point of the Grace conspiracy was to make money and avoid liability, he highlighted close to 50 documents dating from 1972 to 2003, all of which were supposed to demonstrate the defendants’ knowledge of the hazards of Libby vermiculite.

Many Grace internal memos discussed company worries about study results, new restrictions and possible ways of dealing with them. Throughout the 1970s, most of the communications involved Grace defendants Jack Wolter and Henry Eschenbach.  

McLean said that each memo showed that Grace executives knew of the dangers of Libby vermiculite and tried to limit the spread of information. He gave greater emphasis to the documents that he said were overt acts demonstrating the conspiracy, such as a 1977 hand-drawn “Contingency Plan Chart.” On the chart, the executives had listed “bad publicity” and “lawsuits” under “unfortunate outside events.” 

“Why would Grace be worrying about class action lawsuits in 1977 if they didn’t know there were problems with Libby vermiculite?” McLean said. 

The “Chip Wood era” began in 1977, according to McLean. Grace brought in Elwood “Chip” Wood to deal with public relations, and he established descriptive terms to label the amount of asbestos in Grace’s products, such as “small” to describe products containing up to 6 percent asbestos. 

“’Small’… ‘minimal’… these are words you use to deceive,” McLean said. 

But according to McLean, the real trouble for Grace began in 1978, when O.M. Scott, a company that purchased vermiculite from Grace for horticultural purposes, reported to the Environmental Protection Agency that its workers had bloody pleuralisms. McLean said this was when Grace started to worry that “the cat may get out of the bag.” The O.M. Scott incident prompted the National Institute of Occupational Health and Safety to begin an investigation of the Libby operation, and memos over the next 17 months showed how Grace stalled and in doing so, defrauded, NIOSH, McLean said. 

Defendant Robert Bettacchi entered the picture at Grace in 1983, and in 1990 became the point man for the sale of Grace’s Libby property. The conspiracy at this point, McLean said, is illustrated by a 1993 memo from Alan Stringer, manager of the Libby mine, after the 3M company refused to buy the property because of concerns about liability: “To sell, we must find a smaller organization who will accept the liability.” This smaller organization turned out to be Rainy Creek Nursery owned by Mel and Lerah Parker.

To prove conspiracy, the government had to show that an overt act occurred that furthered the conspiracy sometime after 1999. McLean listed six overt acts, including three that are the focus of three other counts. Stringer, formerly a defendant but now deceased, committed one of the acts in 1999 when he wrote a letter to the residents of Libby. “I knew there was a health problem associated with exposure to vermiculite … for workers and their families,” Stringer wrote.   

Then Cassidy stepped to the lectern and ticked off the remaining seven counts. He began with the obstruction of justice counts since McLean had just spelled out the evidence in support of the conspiracy charge. 

“When the 1999 news stories broke, Grace was in trouble. We will show that Grace misled the government and put the people of Libby in harm’s way,” Cassidy said. 

Count 5 asserts that Stringer lied when he told EPA on-site coordinator Paul Peronard that Libby vermiculite contained less than 1 percent asbestos.

Count 6 asserts that Grace lied in multiple answers on the EPA’s 104(e) questionnaire, which caused a delay in Peronard’s assessment of the situation in Libby. Cassidy pointed to all the testimony refuting Grace’s answers, including witnesses who said that the public had access to vermiculite, who told about vermiculite tailings on Rainy Creek Road and Libby school tracks and who verified that workers regularly left the mine with dust on their clothes. 

Cassidy used the Rainy Creek Road sanding to claim that Stringer’s default response to anyone who questioned was essentially, “There is nothing to see here.” 

Count 7 asserts that, once the mine site was bought back from the Kootenai Development Corporation, Grace denied the EPA access to the site and delayed cleanup for two field seasons. The reason Grace gave was because “the land was rugged and mountainous,” but Cassidy said testimony showed that Grace was more worried about science. 

“This is America,” said Cassidy, appealing to the jury. “You have a legal right to deny someone access to your property, but consider this in light of Grace’s other actions.” 

Count 8 asserts that Grace lied to the EPA about the dangers of Zonolite attic insulation. The letter Grace wrote to the EPA stated, “There is no risk to human health.” 

Cassidy prefaced the knowing endangerment charges by pointing out that, when proving “imminent danger,” the government doesn’t have to prove that death or injury would occur immediately, which is important due to the latency period of asbestos-related diseases. The knowing endangerment counts focused on three locations: The Parker’s property, formerly the screening plant; The property Burnett leased, formerly the export plant; and the city of Libby.

For each of these places, Cassidy described the testimony of witnesses who said vermiculite was left on the property and showed the associated air sampling results. He said the evidence of imminent danger came from doctors James Lockey, Richard Lemen and Aubrey Miller.

“Most importantly, you heard from Dr. Whitehouse who testified about all the Libby residents who have asbestos-related disease,” Cassidy said. 

Both lawyers ended by thanking the jury for their time and making a final plea. 

“This is the last time I will be able to address you. But when this day is concluded, and no more lawyers are arguing, I know you will do your best to consider the evidence and carry out justice,” Cassidy said.  

“Apply your collective common sense and find the defendants guilty on all counts beyond a reasonable doubt,” McLean said. 

– Laura L. Lundquist (posted 3:25 p.m.)

Molloy discussed more than 50 separate instructions with the jury immediately after they entered the courtroom.

“You must not single out some (instructions) or ignore others, they are all equally important,” Molloy said.

The jury was also told that they could not consider the testimony of Robert Locke, a disgruntled former global vice president for Grace’s construction division, when deciding on the charges of Bettacchi. They should also look at Locke’s testimony with “more bias” than other witnesses, Molloy told the jury.

Jurors were directed to throw out a part of the testimony of Dr. Alan Whitehouse, a pulmonologist who treated many former W.R. Grace employees. Molloy told jurors that Whitehouse’s predictions about asbestos were to be disregarded, but the rest of his testimony was to be considered.

To help the jury come to a unanimous verdict more easily, Molloy gave definitions of many words that have been frequently used throughout the trial and in the indictment. The defined words were: release, ambient air, asbestos, imminent danger and serious bodily injury.

“This is in your hands,” Molloy told the jury before a short recess.

-Elizabeth Diehl (11:18)

 Court ended Tuesday afternoon behind closed doors. The court was closed to the public while attorneys from both parties discussed jury instructions before Judge Donald Molloy.

Last week, Molloy said that jury instruction would be argued before the public. But the clerk of court told reporters and onlookers differently Tuesday.

After Molloy dismissed the jury, attorneys for both the prosecution and defense met in Molloy’s chambers to discuss the instructions. The lawyers emerged from the judge’s chambers, left court out the backdoor to review what they had just come up with, and the sparse audience was told the remainder of court for the day would be off the record.

Molloy told the court last Wednesday that he had heard only one other case in front of an audience, and in the name of transparency, he said, jury instruction in this case would be argued before the court.

Jury instruction will precede closing arguments and will be open to the public Wednesday morning.

–Will Grant (posted 5 p.m.)

Defense counsel for W.R. Grace said they have no further witnesses Thursday afternoon after finishing up an hour and a half direct of EPA on-site coordinator, Paul Peronard.

Molloy will instruct the jury first thing in the morning, and the jury will begin to deliberate by tomorrow,  Molloy said.

“Life’s a circle,” defense attorney David Bernick told  Peronard as he took the stand for a second time Tuesday afternoon.

Peronard was first called as a witness for the government at the beginning of the trial in February.

Bernick focused his questions on letters and emails that Peronard sent to officials within in the EPA in 2002

Bernick emphasized Peronard’s reference to himself as “King of Libby.”  Peronard said the remarks were taken out of context and that he was working under several limitations in the EPA when he was in charge of the Libby cleanup in 2002.

“It wasn’t the war powers act, I couldn’t put a missile base up there,” Peronard said in reference to his power in Libby.

Tensions thickened between Peronard and Bernick at many points during direct.  Bernick moved to strike two of Peronard’s answers because they didn’t answer his question. Molloy also had to tell the two to not argue over each other.

“You’re not on trial here, I’m not saying you are,”  Bernick told Peronard. “You don’t have to defend yourself.”

Bernick asked Peronard about Libby attic insulation cleanup and tried to prod Peronard into saying the EPA didn’t want to bring national attention to the cleanup.  Peronard insisted this was not the case.

“Isn’t it true, in 2000, there was discussion between you and EPA headquarters about known risks to Libby residents in the late ’80s?” Bernick said.

The government’s redirect was short as the prosecution tried to subdue the drama that Bernick attempted to stir that afternoon.

Under cross-examination, Peronard told the jury that he never bullied anyone within the EPA, nor did he exert selfish desires to be the “King of Libby.”

–Kelsey Bernius (posted 4:45 pm)