April 21, 2009
Below are posts from April 21, 2009, in reverse chronological order. Read from the bottom up.
Government asks for exhibits to be admitted
Tuesday morning started without the jury present. Judge Molloy asked Mr. McLean to go through each exhibit and explain how it was relevant to which element of the charges. Mr. Bernick briefly made a request to revisit the Locke issue, stating the defense had reconsidered the situation and would like the opportunity to recall and cross him. Judge Molloy decided to address that issue later.
Mr. McLean started his presentation with an overview outlining his argument to introduce the exhibits despite a 602 objection by the defense for lack of personal knowledge. He argued that rule 602 applies to testimony, and hearsay exceptions 802/803 apply, as well as the fact that personal knowledge does not apply to 801(d)(2)(D) (admission by a party opponent made by an agent/servant during the scope of employment). The defense did not speak during his presentation or the following motion to admit exhibits. Amongst those were:·
- Internal memoranda acknowledging that although the mine was running at a profit of $9.9 million, potential liability claims could run up to $262.5 million over the next 60 years due to the latency period. Mr. McLean argued this calculated risk analysis was the conspiracy, and that the company knew low levels created the risk yet closed the mine and left materials with a much higher level in Libby. (GE 467)·
- Internal discussions of risk versus profits, including a note that the executives were not to use formal memoranda but instead handwritten communication, which Mr. McLean showed the requisite mental state for the conspiracy charge. (GE 468)·
- Requests for entire documents or additional pages to be added to already admitted exhibits some of which Mr. McLean argued went to the obstruction charge because the missing pages showed defendants knew about mortality studies but knowingly withheld them from the EPA. (GE 608, 314, 428, 484)
Judge Molloy remarked several times that many of the exhibits were probative to a products liability case, but that he was missing the connection to any element of the charges. He also commented that the government was reading in implications he did not see in some of the exhibits.
Next Mr. McLean moved to matching overt acts with proposed exhibits, including:·
- Memorandum from defendant Eschenbach advising against proceeding with epidemiology study, which was tied to the obstruction charge. (GE 93 to overt act 90)
- Concern over information becoming public, or that Dr. Irons would “blow the whistle,” which was tied to show Eschenbach and Wolter acted knowingly to obstruct. (GE 202/204/206/207 to overt act 137)
Judge Molloy started to call the morning recess, at which point Mr. Bernick asked to address the court about Locke’s cross examination. Mr. Bernick asked that Locke be recalled this afternoon and be subjected to a very limited cross examination by defense, but not a redirect by the prosecution. This troubled Judge Molloy, who had not decided on a remedy, and stated that if he proceeded he felt it was following a remedy. Mr. Bernick responded that the cross would be confined to show that Locke had a relationship with the prosecution, and that he was an advocate for them. Mr. McLean argued that the cross should be to remedy the discovery issues, not to make a record for the remedy brief, which had occurred Friday.
The morning ended with an address by Mr. Frongillo, who reiterated that the case should be dismissed for a constitutional violation, and that it is was wholly inappropriate to allow the government to profit from either their “reckless or sponsored” behavior. Mr. Frongillo appealed to Judge Molloy to strike all the testimony of Locke and expose the government’s discovery violation to the jury.
Hannah Stone(posted 10 pm)
Posted: April 21st, 2009 under Law.
Comments: 62 | [edit]
Defense Fights to Keep Grace Memos Out
A litany of defense attorneys argued to exclude more documents from the jury this afternoon, mostly on the grounds that the documents either violated Rule 403 because they were more prejudicial than probative and cumulative, or that they contained medical information for which an expert was required to properly lay the foundation. The defense argued that although the government had many witnesses on its witness list who could have been used to admit the documents, the government never called these witnesses, and thus the documents are now inadmissible. This is an interesting strategy considering last week the defense argued that many of the government’s remaining witnesses would present cumulative evidence, and hence many of those witnesses did not testify.
Some the evidence Grace does not want the jury to see includes:
- Defendant Walsh’s handwritten note ”not true but ok” on a memo discussing health effects on workers’ exposed to 30 f/yr
- A memorandum from Defendant Eschenbach discussing a 27 year-old employee who only worked in the garage showing signs of lung illness on x-rays
- A confidential Eschenbach memo stating that the results of a health study would become public knowledge regardless of confidentiality agreements, and Grace should not proceed if not prepared to deal with that situation
- Another Eschenbach memo to most of the other defendants stating that Grace’s “major problem is respiratory cancer. This is no surprise.”
Krakoff, Eschenbach’s attorney, argued that the evidence against his client was irrelevant and prejudicial, and the government was trying to use it to make his client look callous and uncaring before the jury.
At the end of the day, Bernick told Judge Molloy that the defense had just received correspondence from the government acknowledging that Agent Marsden’s emails should have been previously disclosed–however, the government did not believe the emails were Brady or Giglio material. Continuing with his scathing tone toward the government, Bernick stated that he could not believe that after the government’s “most recent embarrasment” in having Marsden testify to Brady material on the stand, it would continue to “draw fine lines” regarding the discoverability of documents. Judge Molloy agreed and said he found it “mind-boggling” that McLean may not have seen and remembered all of the documents in the case. Molloy ended the day by sharply pointing out that the government must be familiar with all the proof in the case–both the proof it wants to find, and proof that may question if there really is a crime being committed here.
- Katy Furlong (posted 7:00 p.m.)
Posted: April 21st, 2009 under Law.
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Defense: Government’s case based on inference, not fact
Using documents related to the controversial testimony of witness Robert Locke, the defense argued Tuesday afternoon that the government’s case against W.R. Grace was based on inference and not fact.
“The counsel is drawing connections that may or may not be real,” defense attorney David Bernick said.
The defense’s argument centered on the idea that the prosecution was cherry picking documents and taking phrases out of context in an attempt to mislead the jury and build more substance into the charges of obstruction of justice and conspi
Posted: April 21st, 2009 under News.
Tags: Hegyi
Comments: 4 | [edit]
Bernick’s Roadmap to Rebut Prosecution Exhibits
This afternoon the attorneys for the defense began a systematic attack on the series of exhibits that the prosecution wishes to get to the jury without the benefit of any introductory testimony. Defense attorney David Bernick began by listing out several categories into which these exhibits could be categorized, as the defense objects to the exhibits in similar categories on similar grounds.
The defense’s objections to these exhibits rely mostly on Rule 403 of the Federal Rules of Evidence, which precludes admission of evidence that would waste the time of, confuse, or unduly prejudice a jury. In addition the defense also had several problems with the potential relevance of these documents, and also argued that many consist of inadmissible hearsay.
Bernick first addressed documents regarding the defendants discussing their potential liability, which Bernick repeatedly characterized as a normal business discussion in which every business engages every day. He also pointed out the prejudicial nature of this exhibit’s potential to treat a calculus of civil liability as acceptance of potential criminal liability. He then passed the torch to defense attorney David Krakoff, who discussed exhibits regarding a Dr. Irons, an individual with whom the defendants exchanged correspondence. Krakoff argued that these documents were full of language that the jury could take out of context. For instance, one of these documents, a memo from defendant Eschenbach to defendant Wolter, contained the phrase “turn the screw,” which Krakoff repeatedly argued would unduly prejudice the jury. He interestingly failed to comment on how the same paragraph of that memo ended: “Either we play the game his way or he’s going to blow the whistle.”
Defense attorney Thomas Frongillo next discussed problems the defendants have with documents regarding Grace’s efforts to sell the mine site, the export plant, and some other properties, under the evidentiary objections of relevance and Rule 403 (since the jury would see these documents without any explicatory testimony). Once Frongillo finished Judge Molloy called for a break.
Mark Lancaster – posted 4:45 pm
Posted: April 21st, 2009 under Law.
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Defense tries to lessen jury’s burden
Defense lawyers spent early Tuesday afternoon trying to make the jury’s job easier by getting some of the government’s evidence thrown out.
The defense objected to evidence they claimed was prejudicial. The government has presented evidence without context, testimony or relevance, the defense said, and has unnecessarily burdened the jury. Evidence presented without context or testimony must be interpreted by the jury, which in some cases will not be possible, the defense said.
“The jury faces a very formidable task just to keep straight, much less interpret, the evidence,” said David Bernick, defense attorney representing W.R. Grace. “They just won’t be able to do it.”
The government has presented evidence that shows Grace was aware of its workplace health risks, recognized certain liabilities, and failed to warn Libby residents of the health concern. But Bernick said that none of this evidence points to incrimination.
No workplace is totally safe, Bernick said. When Grace acknowledged the difficulty in reducing workplace health risk to zero, that was not a confession of criminal activity, Bernick said, it was a common circumstance for corporations everywhere. And warning an entire community of dangers perceived through extrapolated evidence isn’t typical, recommended or smart, Bernick said.
Defense attorney David Krakoff, representing defendant Henry Eschenbach, argued that the evidence pertaining to Dr. Richard Irons and his research was inadmissible. Krakoff said that Irons wanted to do an independent epidemiological study, but that Grace rejected the idea because they felt Irons was inexperienced and the company was already doing its own similar test. It is incorrect to infer that Grace’s rejection of the study was an effort to conceal health risks, Krakoff said.
Grace’s rejection of Irons’ study has nothing to do with the charges in this case, he said. “These documents must be relevant to make a fact,” Krakoff said.
Defense attorney Thomas Frongillo, representing defendant Robert Bettacchi, argued that government exhibits relating to the unsuccessful sale of the Grace mine to 3M were also inadmissible.
“The sale of the mine has little, or nothing, to do with this case,” Frongillo said. Grace didn’t conceal the site’s contamination in the sale, he said. “The whole state of Montana knew there was asbestos on Zonolite Mountain.”
Frongillo showed a Grace document that weighed the pros and cons of different conditions of the sale. For instance, one option was to sell only the harvestable timber and not the real estate; another was to sell the land with limited mineral rights; another was do nothing and “sit on their hands,” said Frongillo. All of these options meant different profit margins for Grace. Frongillo said that although Grace opted for a lesser profit and recognized the health risks of the site, the evidence does not show knowing endangerment.
The defense’s evidentiary objections were many and will likely continue for the remainder of Tuesday.
- Will Grant (posted 4:15 p.m.)
Posted: April 21st, 2009 under News.
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Judge Molloy Will Not “Shoot From the Hip”
After the mid-morning break, Judge Molloy lamented the issues brought forth by the discovery debacle. Molloy stated he would like to balance the interests between the Defendants and the Government, but he’s unsure how.
He questioned Bernick’s request to re-cross Robert Locke, explaining that it would leave Mr. Frongillo, representing Mr. Bettacchi, in a tough position. Robert Locke’s testimony, whether truthful or not, kept the purported actions of Mr. Bettacchi at the forefront of the trial. Mr. Frongillo argued that in order to be fair to Mr. Bettacchi, Judge Molloy must dismiss the Conspiracy Charge, especially in light of Robert Locke’s “perjured” evidence.
However, Judge Molloy stated that he was “unprepared to go there without proper briefing and arguments.” Molloy referenced the 9th Circuit case, U.S. v. Chapman, 528 F.3d 1215 (C.A.9 2008), and stated that he needed to closely review 9th Circuit law on motions for judgments of acquittal before making a decision.
Molloy declared that he was not going to “shoot from the hip on this one.”
In Chapman, the District Court judge denied the Defendant’s motion for judgment of acquittal. On appeal, the 9th Circuit held that in a review de novo of the denial of the motion for judgment of acquittal based on insufficiency of the evidence, the Court “must view the evidence in the light most favorable to the government and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 1217.
The 9th Circuit agreed with the Defendant and after viewing the evidence in the light most favorable to the government, held that no rational trier of fact could find that the Defendant’s conduct rose to the level required by the criminal statute with which he was charged. The 9th Circuit therefore, reversed the District’s Court’s decision and dismissed with prejudice. Id. at 1222.
— Audrey Schultz (posted 2:30 pm)
Posted: April 21st, 2009 under Law.
Tags: , Bettachi, conpiracy charge, Locke
Comments: 2 | [edit]
Molloy wants briefs from both sides before deciding Locke’s future in the case
Judge Donald Molloy has not yet reached a decision on whether the testimony of Robert Locke can be included in the case, and his final judgment will not come until legal briefs are supplied by both sides, Molloy said during court Tuesday morning.
“I am not prepared to do it in the absence of knowing what the government’s position is and the defense’s position,” Molloy said. “I am not going to shoot from the hip on this one.”
The issue with Locke stems from his testimony earlier in the trial. Locke testified under oath that he had a conversation with former Grace executive and defendant Robert Bettachi about whether Grace should sell its Libby properties. According to Locke, Bettachi said “caveat emptor,” meaning “buyer beware” in response to Locke’s concerns. However, this contradicted testimony Locke gave to a grand jury in 2005, where he said that he never discussed property sales with Bettachi.
Molloy referenced a past 9th Circuit Court case, U.S. v. Chapman, which was ultimately dismissed due to similar issues. Molloy said that letting Locke continue in the case “would not be consistent” with the U.S. v. Chapman decision. However, the judge reiterated that he had not yet made his decision. Regarding the possibility of a case dismissal, Molloy said, “I’m not prepared to go there.”
If Locke is allowed to continue, the defense may cross-examine him at a later date. The jury, which was not present today, will return to court at 8:30 a.m. next Tuesday, Molloy said.
After Molloy’s address to the court, government prosecutor Kris McLean went through a series of exhibits he wants admitted into evidence. He presented many of the exhibits as proof of specific overt acts listed in the government’s case against the defendants.
Many of the exhibits were memos or letters between the defendants, and several were additions to already admitted exhibits. One exhibit was a copy of a NIOSH report sent from defendant Robert Walsh to several other Grace executives, with handwritten notes from Walsh on it. One note said “Not true, but o.k,” in response to a line in the study that read “no cases of fibrosis were observed among workers with less than 30 f-y” (fiber years).
Another was a letter from defendant William McCaig to other Grace employees discussing an interview he had with a reporter about Libby asbestos. The document said that McCaig told the reporter that the tremolite asbestos hazard was not understood completely but was “discussed.”
Along with the NIOSH study, several of the exhibits involved the asbestos study done by Dr. McDonald for Grace. Most of exhibits involving the McDonald study were correspondences between Walsh and defendant Henry Eschenbach.
Several of the McDonald study exhibits included Grace employee death certificates. Appearing irritated, Molloy pointed out that only one of the certificates in the first McDonald study exhibit involved death from cancer. Other deaths stemmed from a variety of causes such as car wrecks and suicides. Molloy worried that the collection of death certificates could lead the jury to false conclusions.
“The problem is, if those go in, what’s the jury going to do, sit in the back room and say, ‘All those guys died because of Grace’?” Molloy said.
McLean explained that the death certificates were just part of the exhibit, and can be left out if needed.
“We can’t really explain why these were collected and forwarded on as they were,” McLean said.
Molloy did not indicate which, if any, of the exhibits will be admitted at the conclusion of McLean’s presentation. Instead, discussion was set to continue after the noon recess.
–Ryan Thompson (posted 1: 42 p.m.)
Posted: April 21st, 2009 under 1, News.
Tags: Locke, McDonald, McLean, U.S. v. Chapman
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McLean argues to air defendants’ dirty laundry
David Bernick changed his tune Tuesday morning, saying that he would like the opportunity to cross-examine Robert Locke on his relationship with the prosecutors. On Monday, the lead attorney for W.R. Grace had told Judge Donald Molloy that even if none of Locke’s testimony was stricken, the defense did not want to put Locke before the jury again. Bernick said he had been flip yesterday, and apologized to Molloy for the change.
But this revelation came after just over an hour of silence from the defense, as the bulk of the morning consisted of government prosecutor Kris McLean’s arguments for entering a number of key Grace memos into evidence that have taken sustained objections by Molloy, and therefore have not been admitted by the court.
With the jury absent and the gallery almost empty, McLean’s voice was punctuated by near-absolute silence as he presented six memos, which he called the “priority” for proving the charges of conspiracy and knowing endangerment. He then presented an additional eight exhibits that he said prove just a handful of Grace’s “overt acts.”
The first memo, contained a cost-benefit analysis of vermiculite products written by defendant Robert Walsh, saying, “…it can be estimated that lung cancer rates will increase from 7 percent to 7.2 percent… which may not show up for 20 years due to the latency period.” With that assessment, Walsh concluded that if the company were found responsible for even such a small increased risk, it could cost over $262.5 million in litigation and settlements.
Molloy said that information would certainly apply to a consumer products case, but asked how it applied to the criminal case at hand.
“It goes directly to the knowledge that the company had of the risks it was putting on Libby,” McLean said. He added that the consumer products were cleaned to contain as little asbestos as possible, and that Walsh was saying that even at “low levels,” tremolite is a major health risk. If the company already knew that low-level exposure was dangerous, then what they left in Libby — unprocessed, uncleaned vermiculite products and mine tailings — was even more so. Grace executives, McLean said, knew the dangers and decided to risk the lives of Libby residents.
The next memo, written in response to Walsh’s analysis, instructed that a five-member committee be formed to investigate the health risks. Four of the five defendants were included in the committee. The memo was hand-written and demanded that all communication regarding analysis of the asbestos problem be hand-written as well. McLean said that this was a security measure, aimed at keeping the issue quiet by preventing even secretaries who may type up the memos from knowing. Within that document, Walsh said, “Don’t expect that scientific/medical knowledge will prove over the next 10 years that low-level exposures are safe.”
“They knew so much they were predicting the science,” McLean said.
Another of the “priority” exhibits had already been entered into evidence — all but the cover letter. The memo contained the results of employee chest X-rays who, even with relatively low exposure levels, came up positive for lung abnormalities. McLean argued that the first page should be entered because it shows who knew the fact that many Grace employees would die of lung disease. The memo was sent from Henry Eschenbach to Jack Wolter and Willian McCaig, all of whom are defendents.
A string of memos that the jury has not seen shows Grace executives’ conversations about one town doctor who saw a frightening pattern in Libby miners and their families. Dr. Richard Irons wanted Grace to fund a medical study of its workers. In one memo, Eschenbach wrote, “Irons is turning the screw. Either we play the game his way or he is going to blow the whistle.”
McLean continued to show document after document, and at 10:20, Molloy tried to dismiss court for a 10-minute break, mentioning that at the rate thngs were going, “there’s no way we’re going to get the jury back in here this afternoon.”
Despite yesterday’s opposite statement, Bernick jumped up and said he wanted the jury back in this afternoon to cross-examine Locke on the narrow subject of his relationship with the prosecution, and that the government should be barred from a redirect.
“If your honor really does intend to reject all our objections to Locke’s testimony, then the jury absolutely needs to understand the prosecution’s relationship with Locke,” he said.
Bernick said that the defense team would not bother examining Locke on substantive issues, as that might legally necessitate a redirect. “We are not going down the road of letting the government try to cure this because we do not believe it can be cured,” he said.
McLean said that Bernick’s reason for wanting to cross-examine Locke was to “make a record” for the brief. That was not a good enough reason to put Locke back on the stand, he said, adding that “the opportunity for that record was last Friday.”
Molloy interjected, saying, “One thing Locke has done … he’s got a great big hole dug. So the question now is do we let him keep digging or do we get the shovel out of his hands.”
Frongillo took to the podium and said it would be inappropriate to put Locke back on the stand after lying to the court and to the jury.
“I think an appropriate remedy would be to tell the jury that the testimony of Bob Locke is stricken. I’ve seen it done before,” he said, referring to a case he worked on in Massachussetts. “I think this is wholly inappropriate,” he added. “The government cannot rely on perjured testimony.”
With none of the issues settled, Molloy tactfully repeated his call for a 10-minute break.
-Alex Tenenbaum (posted 12:40)
Posted: April 21st, 2009 under News.
Tags: Locke
Comments: 16 | [edit]