April 27, 2009
Below are all posts for Monday, April 27, 2009, in reverse chronological order. Read from the bottom up.
The Grace Case is over for Walsh, McCaig could be next
After the 3:00 p.m. recess, Kris McLean addressed the indictment of Robert Walsh. McLean conceded that because of some evidentiary rulings the government could not prove its case beyond a reasonable doubt. McLean moved to have the case against Robert Walsh dismissed with prejudice. As a result of McLean’s motion, Judge Molloy dismissed the case against Walsh with prejudice. A dismissal with prejudice is significant for Walsh because it represents a final decision on the indictment. A dismissal with prejudice means that the government is barred from charging Walsh in the future based on any of the information that it used in this case.
Kevin Cassidy took the podium next to discuss the status of the case against William McCaig. Cassidy explained that the government had an issue regarding one of the jury instructions involving conspiracy although he did not go into any detail. A dismissal of the case against McCaig hinges on whether Judge Molloy accepts the government’s proposed jury instruction.
With the topic of jury instructions broached, Judge Molloy did not hesitate to ask Cassidy if the government was prepared to rest. Cassidy responded that the government needed a determination on the admissibility of Locke’s testimony. Cassidy explained that if Locke’s testimony were to be excluded the government intended to have exhibits that were admitted during Locke’s testimony admitted by some other means.
Judge Molloy next heard arguments from Betsy Gray, David Krakoff, Carolyn Kubota, David Hird, and David Bernick. Each attorney explained why the evidence against their respective clients was insufficient to prove the charges in the indictment. All five attorneys also asked for the case to be dismissed pursuant to Federal Rule of Criminal Procedure 29.
The standard of review on a Rule 29 motion is to view the evidence “in the light most favorable to the government.” Gray, Krakoff, Kubota and Hird each reviewed the evidence relevant to their clients and argued that even if the evidence was viewed “in the light most favorable to the government” no rational juror could find their clients guilty. Bernick took a different approach. Rather than review trial transcripts or documents submitted into evidence, he relied on a flow chart which supported his assertion that the government could not prove the conspiracy counts because it had not satisfied the “plan” requirement. Citing U.S. v. Esquivel-Ortega, 484 F.3d 1221 (9th Cir. 2007), Bernick argued that the burden was on the government to show that the alternative explanations offered by the defense were incorrect. Specifically, Bernick’s interpretation of the standard articulated in Esquivel places the burden on the government to show that a reasonable juror could not conclude that defense’s alternative explanations are incorrect.
In Esquivel, the defendant prevailed on a Rule 29 motion because the government failed to establish that Jorge Luis Esquivel-Ortega had “knowledge” of a conspiracy to distribute cocaine. The Esquivel court explained the burden as follows: “[W]hen there is an innocent explanation for a defendant’s conduct as well as one that suggests that the defendant was engaged in wrongdoing, the government must produce evidence that would allow a rational jury to conclude beyond a reasonable doubt that the latter explanation is the correct one.” Id. at 1226-1227.
Court will reconvene at 8:15 a.m. tomorrow morning in the hopes that the jury can be brought back into the courtroom at 10:00 a.m. Judge Molloy will hear oral arguments from the government on the remaining issues including at least one of the government’s proposed jury instructions.
–Paul Nicol (posted 9:30 p.m.)
Posted: April 27th, 2009 under Law.
Tags: Esquivel, McCaig, Nicol, Walsh
Comments: 9 | [edit]
Prosecution drops its case against Robert Walsh
The government dismissed all charges against Robert C. Walsh Monday afternoon.Walsh is a former vice president of W.R. Grace and one of seven company executives originally indicted on federal charges in 2005.
“With respect to Mr. Walsh,” McLean told Molloy in front of a jam-packed courtroom, “The government can not prove its case without a reasonable doubt.”
With one defendant out of the picture, the defense continued its push to dismiss all charges against the remaining defendants, including W.R. Grace itself, and managers or executives William McCaig, Henry Eschenbach, Jack Wolter and Robert Bettacchi.
Speaking to the remaining defendants’ attorneys seated to his left, Molloy asked who wanted to go first in presenting their arguments for dismissal. “I think we have enough time for everyone to have about 10 minutes,” he said.
Attorney Elizabeth Gray, representing William McCaig, approached the bench first. McCaig served several managerial positions at W. R. Grace between the early 1970s and mid-1990s before his retirement in 1995.
“The government’s case is even shorter on Mr. McCaig,” said Gray, refering to the dismissal of charges against Walsh. “There’s not one document in evidence that’s got Mr. McCaig’s name on it that postdates 1988 [the year McCaig left Libby and that position with W.R. Grace] … I suggest that he should leave (this courtroom) today.”
Arguments for the dismissal of Grace’s former director of health, safety and toxicology, Henry Eschenbach, came next from attorney David Krakoff.
Krakoff began by saying, “We’ve seen in full bloom this morning a very sad story … an any-cost approach” by the prosecution.
Krakoff contended that there is no evidence, and never has been, that his client entered into an agreement to harm the people of Libby.
“Mr. Eschenbach was doing his job. No more. No less.” Krakoff stressed. “This case has gone on far too long … we ask the court to enter an acquittal of Mr. Eschenbach at this time and end this case today.”
Next came arguments from Carolyn Kubota representing Jack Wolter, the former vice president of Grace’s construction products division.
Despite the government’s argument that Wolter knew of “large piles of vermiculite strewn around” Mel and Lerah Parker’s property, Kubota said there has been no evidence to prove such a claim.
“(There is) absolutely no mention of Jack Wolter knowing about vermiculite on the property … zero evidence is not enough,” she said.
Kubota finished by saying that if Wolter believed that Libby was covered with a deadly carpet of asbestos, the first thing he would have done would be leave immediately.
To find that Wolter intended to endanger the people of Libby, the government would also have to prove that he was willing to do the same to his own family, Kubota said. “That is preposterous.”
Finally, Molloy listened to arguments from attorney David Hird, representing Robert Bettacchi, Grace’s former senior vice president.
Hird argued that the only evidence in the record to connect Bettacchi to either property in question was that he signed the deeds for both.
“As far as Mr. Bettacchi knew, the items on the punch list were performed,” Hird said. “He was informed that the cleanup work was done … (there’s) no evidence that he acknowledged a situation that would have endangered another person.”
“We respectfully ask the court to grant the acquittal of Mr. Bettacchi,” Hird concluded.
With the clock nearing 5 p.m., Molloy gave Bernick one last chance to speak, reminding him as usual to try and be brief, before discussing tomorrow’s schedule.
“I’ll make my ruling as quickly as I can on the motion to dismiss as well as the Rule 29 motion,” Molloy said. “We’ll be on a tight schedule in the morning.”
Court is scheduled to reconvene at 8:15 a.m., when attorney Kris McLean will argue the prosecution’s response to the Rule 29 motion. The jury will be present at roughly 10 a.m. following McLean’s arguments.
– Chris D’Angelo (posted 8:04 p.m.)
Posted: April 27th, 2009 under News.
Tags: Bettacchi, D’Angelo, Eschenbach, Gray, Krakoff, McCaig, Walsh, Wolter
Comments: none | [edit]
Prosecution defends itself against flurry of accusations, interruptions
Assistant U.S. Attorney, Tim Racicot, opened the afternoon by defending the Government’s theory of its case. Racicot analogized the Grace case to spraying his home for termites, arguing that “I don’t feel great if someone tells me there are not termites in 95% of my house, I am concerned about the other 5%; that is the theory of our case.”
Judge Molloy then interrupted Racicot saying that he trusted Kris McLean, Assistant U.S. Attorney leading the prosecution team, but now he feels that this trust was misplaced. Judge Molloy told Racicot that he has “no faith in anything the Government says.”
Racicot proceeded to address what he felt was the overarching point of today’s hearing: the Government’s motives. Before Racicot could begin his argument, Judge Molloy interrupted once again highlighting the Government’s professional and ethical obligations. Judge Molloy points out that not once did Kris McLean or Kevin Cassidy, also a member of the prosecution team, step up and express concern over Robert Locke’s testimony being perjured, misrepresentative or inaccurate. According to Judge Molloy, the prosecution had an obligation to take such action and they have been “bull-headed” in failing to do so. Judge Molloy continued to berate the prosecution accusing them of ignoring his orders and having an attitude of “we will do it our own way.”
Before allowing Racicot to continue, Judge Molloy specifically addressed the conduct of McLean, indicating that he has seen McLean hold stuff back in many trials. This conduct on its own is fine, it’s a trial tactic. However, Judge Molloy continued, what is not ok is to fail to disclose information, that is what happened here.
When Racicot was finally permitted to continue his argument he reasserted that the Government does have a theory of this case. Just because the defense thinks that Robert Locke is lying, doesn’t mean the Government can’t assert that they believe otherwise. Once again Judge Molloy interjected and asked Racicot, as an officer of the court and the Department of Justice, if he wants to have the jurors convict on perjured testimony. Racicot responded that he does not believe Locke perjured his testimony then was tagged out of the argument by Kevin Cassidy.
Kevin Cassidy resumed argument for the Government and addressed defendants’ accusation that the Government needed Locke to indict. According to Cassidy, this is simply not true; the Government has already said this is a document reliant case. The documents at issue that relate to Locke are the defendants’ documents, “they are their own words” and they speak for themselves.
Judge Molloy responded, asking if Cassidy was saying that Locke’s testimony was not necessary, and if that is the case then as a remedy the testimony will be stricken. Cassidy replied that even if Locke’s testimony is not necessary to indict, doesn’t mean it is not relevant. Yet again Judge Molloy interjected stating, “it may be relevant, made up, but relevant.” Judge Molloy also expressed his belief that Locke testified to facts, he made them up as he was going, but he did testify to facts.
Once again Cassidy expressed the Government’s position that they don’t believe Locke lied or made up facts in his testimony. The response from the bench was that hell will probably freeze over before he and the prosecution can agree on that fact.
After the close of Cassidy’s argument, McLean briefly took the podium in order to address the judge’s specific concerns regarding his individual prosecutorial conduct. McLean told Judge Molloy that he did not misrepresent or intentionally mislead the jury, “I have been in front of you for 13 years, I have never done that and I did not do that here.” McLean then noted that today the defendants have attacked his character as an attorney and as a prosecutor, but he is not concerned with what they say. What does matter to McLean is what the judge thinks and if he wants to ask any specific questions about his conduct then he should do so. Judge Molloy had no further questions.
-Shannon Foley
Posted: April 27th, 2009 under Law.
Tags: Foley, Locke, Racicot
Comments: 12 | [edit]
Molloy: Trust in prosecution almost gone
Judge Donald Molloy said he no longer trusts the government’s lawyers prosecuting the W.R. Grace case because they never once came to him with concerns that testimony of any of their witnesses may have been flawed.
“From the get-go, I trusted Mr.McLean,” Molloy said during one of several spirited tirades directed at the prosecution team Monday afternoon. “My trust probably kept me from doing what I should have done. I have no confidence in what the government says to be the truth.
“There is a professional obligation. You are not the defense, or even the plaintiffs. You are special. Not one time has Nelson, or Cassidy, or McLean came to me and said, ‘Your honor, we believe the testimony of Locke either was perjury, or incomplete,’” Molloy said, referring to attorneys Eric Nelson, KevinCassidy and Kris McLean.
The prosecution team came under fire when government attorneys rose to respond to defense arguments that the trial should be dismissed for prosecutorial misconduct largely because witnesses allegedly lied on the stands, were lead by attorneys, or incomplete evidence was presented. The hearing was held all day Monday without the jury present.
Assistant U.S. Attorney Tim Racicot, a newcomer to the prosecution team, led the argument for the government, apologizing for any mistakes in the trial process.
“We get it. We understand the obligations, and we care about those,” Racicot said, refering to the obligation of the prosecution to turn over evidence that could support a defendant’s innocence.
Stating that dismissing the trial could not just be based on the “discovery misstep,” Racicot said it would be wrong to end the trial with a dismissal.
Molloy took his turn to respond intermittently between breaks in Racicot’s statements, showing continued animation for long stretches, animation only seen in brief moments prior to today.
“They have been bull-headed from the start,” Molloy said. “The government has this attitude that the discovery orders are way too broad. Maybe so, but I didn’t draft the indictment. This is what happens when you put 40 years of discombobulated charges together.”
“Now they have an attitude of, ‘We think your discovery orders are too broad, too difficult, so we’ll do it our way. We’ll hold stuff until we need to disclose it,’” Molloy said.
Racicot spoke on behalf of the government, saying that was not their approach and that their attitude was not to hide anything or be deceptive.
“Unfortunately, I don’t think you can do anything to change my impression of that,” Molloy said in response.
Government attorney Cassidy also spoke out about the judge’s comments, at times risking a confrontation with the judge. He said he felt they had made only minor mistakes in the handling the trial process. Molloy disagreed.
“You say this happened, then this happened, then this, so there must have been an agreement?” Molloy said incredulously. “You conjure up a two-headed conspiracy, then say this happened, then this, then this, and there had to be an agreement?”
The government spent an “incredible amount of time” researching the trial, and saw a pattern, Cassidy said. The government attorney said they had disagreements about the discovery orders but that they gave the defense the information they wanted.
Cassidy defended the testimony of key government witness Robert Locke, saying it was more fact than fiction, a belief that seemed to infuriate Molloy even more
“As an officer of the court, do you want to convict someone on perjured testimony?” Molloy asked Cassidy. ”He’s a witness that said whatever you wanted him to say. How could you have a case that relies on this person? The process is to get this factual information in front of the jury. You are playing games with the jury, and you guys have been doing it with every witness. You criticize me for letting the defense object, but the questions are going directly to excluded matters, forcing them to object.”
Locke, a disgruntled former Grace executive, was on the witness stand for a week. During his testimony, he contradicted testimony he had given earlier, among other problems.
Cassidy suggested bringing Locke back to help clear up any confusion. Molloy disagreed.
“We’re not going to put him on the stand,” Molloy said. “What do I do about it? I don’t know what the remedy is. One thing I can do is declare a mistrial, then what?”
The prosecution addressed accusations that Locke was the key to their trial, stating he was only a part of their case.
“Are you saying Locke’s testimony is irrelevant? Because I can strike his testimony, and that could remedy it,” Molloy said.
Cassidy backtracked somewhat, saying he would have to look over the testimony again, but that it could be a possibility.
In his short response, lead defense attorney David Bernick mocked the prosecution, characterizing their responses to striking Locke’s testimony as “uh, yeah, maybe,” in a slow, drawn-out voice.
Bernick said if they can just strike Locke’s testimony with no real punishment, it hurts the defense.
“If the case continues, there is no remedy to striking Locke’s testimony. Their credibility will not be as hurt, it would just be a slap on the hand,” Bernick said. “The problem is the abuse of the witnesses, and the prosecution doesn’t get it. They don’t get that this is a flawed process. No matter which way you go, this case is a mess.”
–Josh Benham (posted 4:50 p.m.)
Posted: April 27th, 2009 under News.
Comments: 8 | [edit]
The Questioning of the Adversarial Process
The difficulty surrounding today’s hearing is that two separate motions are being argued: (1) a motion for acquittal under Rules of Criminal Procedure 29, and (2) a motion to dismiss for prosecutorial misconduct. However, as the oral argument presented established, both motions are tethered together. The main impetus behind the prosecutorial misconduct issue is the testimony of Robert Locke. Molloy’s remedy regarding Locke’s testimony will change the evidence the prosecution can rely upon to establish its prima facie case. Imagine a tripod. Without one leg, the entire structure cannot stand. Locke’s testimony is one of those legs; without that leg, the prosecution’s case on all of the counts against WR Grace falls.
Therefore, the defense’s strategy this morning was to show the defective nature of the evidence in this trial and to argue that it is a direct reflection of the prosecution’s poor procedures. David Bernick used an enormous poster with the image of a dark flower, or “evil flower” which has arisen around this trial due to the “root source” of a “poorly prosecuted case.” This source of the evil featured “hiding the ball tactics and preparing witnesses that only knew one or two things.”
Bernick then provided his remedy: dismissal with prejudice against all parties. Concluding his argument, Bernick contended such a remedy was appropriate because of “the flagrant method used by the prosecution…a modus operandi where the ends justify the means.” After this, the court took its morning recess.
After the recess, Thomas Frongillo presented his argument. Frongillo was brief and concise. He first provided the two standards for prosecutorial misconduct: (1) outrageous conduct amounting to a due process violation [a deliberate standard]; and (2) general, reckless conduct [an accidental standard]. Frongillo contended that this was a case where the prosecution acted with outrageous conduct, and thus warranted dismissal.
To establish such a level of conduct, Frongillo did not present anything entirely new, except for one piece of evidence. Frongillo showed McLean’s note he wrote while interviewing Robert Locke. The now infamous “buyer beware” note begins with Bettachi’s name. Scribbled and erased under Bettachi’s name appears to be the number “608,” a reference according to Frongillo to a document which is about the sale of the mine. While Frongillo left the argument hanging, it appears he was trying to establish that Locke was addressing the sale of the mine and that McLean twisted the response into the sale of land to the Parkers for better effect at trial.
Frongillo, as he has done throughout his arguments, used the mandatory authority of the Constitution to buttress his contentions. He continually discussed how due process had been hindered in this case as the result of information withheld and false testimony provided. “I would have had an entirely different opening. I would have advocated entirely differently, had I known this information…and for that the due process of my client has been violated,” Frongillo sternly stated.
However, the strongest element of Frongillo’s argument may have been his statements directed at Judge Molloy. Frongillo established that the prosecution knew from the court’s order what was Brady material and ignored it. He mentioned all of the other subsequent orders and opportunities for the prosecution to fix their mistake and yet did not. He revealed how there was no showing of contrition by the prosecution; of approaching the judge and fixing the record. Reaching an argumentative acme, Frongillo concluded by saying, “Your honor, they haven’t listened to you before, and they aren’t going to start now.”
Despite his ire, Frongillo offered Molloy the most strategic solution to the problem. He asked Molloy to “dismiss this afternoon under 29. You cannot give the prosecution another bite at the apple. You cannot let them run to the 9th Circuit and bring this case back.”
To which lunch recess was called.
–Christopher Orman (posted 3:27 pm)
Posted: April 27th, 2009 under Law.
Tags: prosecutorial misconduct
Comments: none | [edit]
Defense calls prosecution’s case a ‘dark bloom’
With the jury out of the room and all attention focused on the defense, attorneys David Bernick and Thomas Frongillo argued that government behavior over the course of the trial rises to the level of “outrageous prosecutorial misconduct,” and that all charges in the case should be dismissed.
“This trial is a dark bloom … a terrible flower,” Bernick said, as an illustration was shown on the courtroom screens. “The root cause of the dark bloom is that this case has been fundamentally poorly prosecuted from the outset,” Bernick said. He said that Paul Peronard, the federal government’s emergency on-scene coordinator for Libby starting in 1999, and the Environmental Protection Agency used the Justice Department “as a delivery vehicle” for a criminal case motivated by a Peronard’s personal agenda and the political agenda of the EPA.
According to Bernick, the government built a case by leading witnesses and omitting evidence that worked against it, even to the point of failing to provide material to the defense that should have been handed over in discovery. The government, he said, couldn’t make its case and so violated the orders of the court and the constitutional rights of the defendants to get the facts to fit the charges they had filed.
“The modus operandi of the prosecution team was flagrant violation, with respect to witnesses, with respect to the court’s orders … with respect to their constitutional obligation … driven by the calculus that the ends justify the means,” Bernick said.
Arguing that the government had failed to provide the defense with material that would have undermined the case against Grace in repeated violation of specific orders from Judge Donald Molloy, Bernick finished saying, “your honor, you still do not have their attention.”
Most of Frongillo’s arguments were specific to the testimony of Robert Locke, who Frongillo said perjured himself at least three times in pursuit of a personal vendetta against Frongillo’s client, former Grace executive Robert Bettachi. Frongillo further asserted that the prosecution team had Locke perjure himself on purpose and concealed evidence that would have revealed his perjury to the defense.
“This is not a case of recklessness. This is intentional… [the prosecution team] let him perjure himself, and they sponsored it by asking the question,” Frongillo said.
Locke’s alleged perjury was a predictable outcome of the coincidence of the government’s need and Locke’s spite, Frongillo said. The government needed Locke to prove its conspiracy charges. And Locke wanted the government’s case to succeed for revenge against a company and a man he despised.
“The unpredictable result was that the government checked their ethical obligations at the door,” Frongillo said, asserting that the government’s initial failure to disclose numerous meetings with Locke and various communications between Locke and the prosecution team met the standard of misconduct that would allow Molloy to dismiss all charges against Frongillo’s client.
He wrapped up his argument by explicitly telling Molloy what he would like to see happen this afternoon, when he expects Molloy to make a decision that could end this historic trial before any of the charges go to the jury.
“I would like to hear you say .… ‘I will not consider any of this perjury, not in my court, it’s not going to happen again,’” Frongillo said.
–Daniel Doherty (posted 1:55 p.m.)
Posted: April 27th, 2009 under News.
Tags: Doherty, Locke, Peronard, prosecutorial misconduct
Comments: none | [edit]
Bernick argues prosecutorial misconduct warrants dismissal
Judge Molloy first ruled on the Government’s motion for admission of redacted exhibits. See Motion. These rulings are of importance to the Rule 29 motions because the government has signaled that unless the exhibits are admitted, it will drop the conspiracy charges as to defendants Walsh and McCaig. See footnote 1, page 5 of Government’s Response to Defendants’ Rule 29 Motion.
“Redacting” is a common courtroom procedure by which a party or judge edits out the inadmissible evidence from the admissible evidence in a document. In this instance, Judge Molloy ruled on which of the proffered exhibits were admissible and which sections must be “redacted in white.” Judge Molloy found that certain address lines, paragraphs, and pages of the exhibits were too prejudicial and raised unwarranted inferences.
The government did not indicate its decision on whether to continue prosecuting the conspiracy charge against Walsh and McCaig.
Judge Molloy informed the parties that he would hear the oral arguments regarding the motions to dismiss for prosecutorial misconduct first, beginning with the arguments of W.R. Grace’s attorney David Bernick and continuing to each of the others. The government informed the court that Assistant U.S. Attorney Tim Cavan would argue the suborning perjury accusation and Assistant U.S. Attorney Tim Racicot would argue “everything else.”
Bernick adorned his argument with a string of repeated words and phrases: “corrupt,” “overwhelming,” “extraordinary,” “pervasive,” “uniquely pervasive,” “stunning,” “dereliction,” “lasting for years,” “perjury,” “the bell cannot be un-rung,” “suborning,” “serial,” “misrepresentation,” “primed to lash out,” “clever,” “strategic,” “subtle,” “insidious,” “venom,” “vendetta,” “in bed with the government,” “groomed,” “manipulation,” etc. He presented timelines, letters, transcript records, demonstrative exhibits, and a powerpoint presentation to bolster his argument.
Bernick gave the following as examples of “overwhelming and uniquely pervasive” perjury: Locke’s testimony that he had only met with the government a handful of times when in fact he had met about twenty times, Locke’s representation that he was not testifying under a grant of immunity when he in fact had a “hood and wink” agreement with the government, Locke’s “special” relationship with the government, in which he acted more like a member of the prosecution team than a witness, and Locke’s implication that the defendants agreed to the “obstruct and block memo.” See the “obstruct and block memo” on page 25 of the Superseding Indictment.
Bernick extended his perjury argument to inculpate the testimony of Dr. Miller, Mary Goldade, Dr. Lemen, and others. “This was orchestrated,” Bernick argued, implicating Kris McLean and the prosecution team. Bernick indicated he would outline the possible remedies available to the court, but stated that this pervasive problem “mandates an extraordinary measure” by the court. Judge Molloy asked no questions during the hour of Bernick’s argument that I observed.
~ Nick Lofing (4/27/09 at 12:14 p.m.)
Posted: April 27th, 2009 under Law.
Tags: Cavan, Goldade, Lemen, Locke, Miller, prosecutorial misconduct, Rule 29
Comments: 1 | [edit]
Perjury abounds, Bernick says
Perjury, perjury, perjury. The act of knowingly lying under oath.
Perjury has been rampant throughout the government’s case, W.R. Grace lead attorney David M. Bernick told a packed courtroom Monday morning in a special hearing to consider defense motions to dismiss the case for prosecutorial misconduct. The jury is not in court today.
According to Bernick, the prosecution team misconstrued evidence and befriended a key witness – actions that were kept hidden from the jury and the defense teams. Government attorneys had a special relationship with Robert Locke, a former W.R. Grace employee and a central witness in the case. Locke and several government employees concealed that relationship, Bernick said.
In a slide show presentation, he began to pinpoint alleged incidences of perjury committed, Bernick said, by several different witnesses for the defense.
The government met 20 times with Locke, “a multiple of what was disclosed” by government attorneys, Bernick said.
Locke, who worked with Grace from 1974 until 1998, felt the company treated him unfairly. He’s been trying to sue the company and his last supervisor, defendant Robert Bettacchi, for the last 10 years.
“He had an ax to grind,” Bernick said. “He wanted to be part of the team” that prosecuted Grace.
In Locke’s testimony, which began on March 23rd, he said the government offered him immunity if he would be a witness in their case. It’s an option that would’ve guaranteed Locke’s safety and insured that he could never be punished for actions he’d taken in the past while working for W.R. Grace.
But he didn’t take it.
The government attorneys told him not to, Bernick said, because he would be more credible if he testified without personal motives. But Locke was told he would be safe from criminal prosecution even if he turned down the immunity.
Locke’s relationship with government attorneys became so apparent, Bernick said, that an IRS attorney advised attorney Kevin M. Cassidy not to get so close to his witness.
“Locke was a groomed insider, prepared to come forward,” Bernick said. He pointed out that when the government questioned Locke, they never explained they had a special relationship.
During Locke’s testimony, Bernick asked him if he was representing the government. Locke said, “No.”
“We now know that was completely and utterly false,” Bernick said. “There was perjury after perjury after perjury from a man whose text was groomed from beginning to end, whose role was absolutely central to the case.”
But Locke’s instances of alleged perjury weren’t the only ones, Bernick said.
Dr. Aubrey Miller, a government toxicologist, also gave a false testimony under oath, Bernick alleged. Even the government misconstrued statements when it “cherry-picked” certain evidence to show the jury, Bernick said, quoting from a memo entered into evidence.
“Are there any other outright perjuries? We don’t know,” Bernick said in the steady rhythm of a metronome, as if each word were followed by a period. “We. Don’t. Know.”
Bernick said he and his team of defense attorneys have remained calm and pressed on, even though perjury has been “virtually everywhere” in the prosecution’s case.
“There has been no table pounding, no hyperbole, not even a motion. Why?” He said. “Because this case has totally exposed all strategies of the defense. The bell can never be un-rung.” He said the defense remains ready and eager to present its side of the story, but that first it must ask that the entire case be dismissed.
– Carly Flandro (posted 11:45 a.m.)
Posted: April 27th, 2009 under News.
Tags: Flandro, Locke, prosecutorial misconduct
Comments: none | [edit]