April 8, 2008
After a 10-day-long Spring Break, court resumed Wednesday, April 8. Below are posts from that day in reverse chronological order. Read from the bottom up.
Jurors Instructed to Chronologically Consider Evidence
After a hectic day of technical and legal interruptions, Judge Molloy requested defense counsel, David Bernick, suspend cross-examination of former W.R. Grace employee, Steve Venuti, until the following morning. Before releasing the jury for the evening, Judge Molloy instructed them to reconsider the Counts charged and what is required to prove each count. In addition, in light of the multitude of objections sustained thus far, Judge Molloy presented a rough timeline specifying what evidence may be considered when deliberating certain charges.
Judge Molloy directed the jury to keep in mind the chronology of the evidence presented. Regarding Count I, Conspiracy, the jury may consider evidence dating back to 1965 if it is offered to prove the charge of defrauding the government. In order to find that there was a knowing release into the ambient air the jury may consider evidence from November 15, 1990 forward. However, in order to prove conspiracy the government must also show there was an overt act in furtherance of the conspiracy. The only evidence pertaining to the overt act that may be considered by the jury are acts occurring after November 3, 1999, when ambient air samples were collected and tested.
Counts II, III and IV allege Clean Air Act violations. When considering Counts II, III and IV Judge Molloy told the jury that they may take into account evidence dating back to 1965 as it relates to knowledge of dangerousness of releasing tremolite. However, with respect to knowing release and placing the community in imminent danger, the jury may only consider evidence presented which occurred after November 3, 1999.
Judge Molloy concluded by lumping together the remaining counts V through X. Counts V and VI allege Wire Fraud and counts VII through X allege Obstruction of Justice. Evidence presented by the Government suggesting false and misleading acts by defendants may be considered as far back as 1965. Evidence that attempts to prove defendants’ intent was corrupt may only be taken into account if it occurred after November 3, 1995. Judge Molloy then dismissed the jury for the evening.
-Shannon Foley
Posted: April 8th, 2009 under Law.
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A Tough Day at the Office
Overall, it was not a good day for the government. Technical difficulties marred the late morning and early afternoon. Although they were soon fixed, the government’s problems were not. Kris McLean had a very difficult time getting testimony in, as objection after objection was sustained. The grounds for the objections sounded like a law school evidence exam: relevance, lack of personal knowledge, leading questions, form of the question, cumulative testimony, lack of foundation.
At one point, the judge rephrased a question for McLean; at other times, he sat silently as McLean tried to reframe a question, or find another document. Most of the documents were internal Grace memos from the 1970s and 1980s.
The jury left for its mid-afternoon recess after McLean brought up a document and the defense stood and reminded the judge that the document was the subject of a pending motion. Once the jury was gone, the judge began questioning McLean about the relevance of the disputed document.
The judge’s concerns went far beyond relevance, however. He asked McLean to help him understand how the government was going to prove conspiracy. “You have to prove there was an agreement to do something illegal,” he said. “What you’ve proved beyond a reasonable doubt is that they communicated by these memos.” McLean explained that the memos “show knowledge of danger,” and combined with evidence that such knowledge was acted upon by individuals who were in concert with other individuals, prove a conspiracy. The judge disagreed. “Maybe you don’t like it, and maybe it’s morally wrong, but they have to have an agreement to do something illegal,” he said.
The judge then raised the possibility of using Federal Rule of Evidence 611, which gives a trial court the authority to control the order and presentation of witnesses and “avoid the needless consumption of time.” F.R.E. 611(a). “Maybe under 611 I should tell you that you have to put on all of your proof of the agreement to do something wrong, and if you can’t, we can shorten the trial.”
McLean said he still had many witnesses to put on to “build a bridge” from the knowledge established in the 70s and 80s to the actions taken in the 90s and early 2000s. “We will keep your frustration in mind,” McLean told the judge, “but we beg you for some patience.”
At that point, defense counsel David Bernick stood and asked to be heard. “Their theory is that people within a company who act in concert gives rise to an inference of conspiracy,” he said. “False. People in a company are obliged to act in concert – that’s their job.”
“We are not going to hear testimony of an actual agreement,” he continued. “If they don’t have a conspiracy now, they’re not going to have one.” He then agreed with the court’s suggestion that FRE 611 gives it the power to make the government put its proof in, and offered to make a motion if that would assist the court.
Then, Bernick ramped things up. His voice got louder, his arms started waving, and his accusations became pointed. He accused the government of hijacking the case, of poisoning the jurors’ perceptions of Grace, and then asserted that the government’s theory was “ridiculous” and “stupid.”
At that, McLean stood and objected. Interestingly, it did not slow Bernick down immediately. He was defending his client vociferously and zealously – and apparently felt he had a receptive audience in Judge Molloy.
– Beth Brennan (8:54 p.m.)
Posted: April 8th, 2009 under Law.
Tags: FRE 611
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Bernick commences with cross-examination of Venuti
Defense attorney David Bernick began his cross-examination of industrial hygienist and former toxicology coordinator for W.R. Grace, Steve Venuti, this afternoon following Judge Donold Molloy’s frank and stern discussion with the prosecution about its failure to prove its case so far.
After the jury filed back into the courtroom, oblivious to the dramatic conversation that had just occurred, Bernick questioned Venuti about his past work for W.R. Grace, a company that helped fund both his undergraduate degree and later his master’s in public health.
Bernick discussed a series of meetings in which Venuti met with prosecuting attorney Kris McLean and other members of the government beginning in 2005, as well as his unwillingness to sit down with Grace officials, despite their numerous requests to talk.
“So the company that paid for your education and whom you worked for for 15 years … you couldn’t spend one minute talking with them. Is that correct?” Bernick asked. Venuti responded yes, saying that it was a personal decision and that he was in no way influenced by government lawyers.
“I believed that it was my obligation as a citizen to speak with the government,” he said.
Bernick attempted to prove throughout his cross-examination that the government itself was well aware of the dangers associated with tremolite all the way back to 1973.
It was no secret, Bernick said. “Tremolite equals asbestos… the government has always known that.”
Molloy interrupted Bernick’s cross-examination shortly before 5 p.m. in order to address a number of housekeeping items. He reminded Venuti not to discuss his testimony with anyone or do any personal investigating. “[Don’t] get online and do any Twittering or whatever else people do on the Internet,” he said.
Molloy then discussed with the jury each of the counts alleged against Grace and its executive, the time frame that applies to each count, and those involved.
“I thought it would be helpful at this point in the trial to at least give you some context,” he said. “I’m sure you all have a sense of things.”
Molloy dismissed the court until 8:30 Thursday morning. “Hopefully [then] we won’t have the mice in the microphones,” he joked, referring to technical difficulties that plagued the courtroom earlier.
–Chris D’Angelo (posted 7:01 p.m.)
Posted: April 8th, 2009 under News.
Tags: D’Angelo, Venuti
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Tame testimony turns into conspiracy counseling
Any hopes the government had of getting off to a hot start after spring break were squelched this afternoon when U.S. attorney Kris McLean was quizzed by a skeptical Judge Donald Molloy about how relevant testimony being offered is to conspiracy charges in the case.
After courtroom computer malfunctions and testimony by government witness Steve Venuti, an industrial hygienist and toxicology coordinator for W.R. Grace in the 1980s, Molloy dismissed the jury for a 20 minute recess so the attorneys could discuss Government Exhibit 460 as possible evidence.
Instead of discussing the exhibit, Molloy took the time to reprimand McLean over the prosecution’s inefficiency in proving any of the charges thus far. “Six weeks we have been at this, and I don’t know what the conspiracy is,” Molloy said.
Molloy said he had been meeting with his law clerk and listening carefully so he could better understand where the government’s argument was going. “At some point, you have to prove that there was a conspiracy to do something illegal,” Molloy said. “There is not an agreement where people decided to sign a piece of paper saying they were going to break the law.”
McLean tried to explain to Molloy that they were slowly building the case. “We beg the court for some patience, we have only called 22 witnesses,” McLean said.
In response, Molloy reinforced the point that the government had not proven anything. “What is the agreement to do something illegal?” Molloy said. “Who is going to testify about the agreement? If you can’t prove that, you can’t prove this case.”
David Bernick, lead attorney for Grace, took the opportunity to clear some of his long-standing grievances.
“This case does not have a compass, your honor,” Bernick said. “They keep poisoning the well, poisoning the well, and poisoning the well, and then say ‘give us more time!’”
Bernick said that they were prepared to file a motion if Molloy was not going to do anything about it.
Molloy dismissed everyone for a 15 minute recess, after which Venuti will again take the stand.
–Elizabeth Diehl (5:04 p.m.)
Posted: April 8th, 2009 under News.
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Government’s Case Continues with Venuti
Court reconvened this morning with Judge Molloy hearing argument from defense attorney Bernick as to why Locke’s testimony should not be allowed to continue and the government should not be allowed redirect of Locke. Molloy reserved judgment on the issue until more argument is heard, although he had an order prepared striking all of Locke’s testimony from the record. See Molloy undecided on whether to strike Locke testimony by Josh Benham below. Molloy will decide if Locke’s testimony will be stricken entirely, if the government will be allowed to redirect Locke, and if any further cross of Locke will be allowed at a later date. While Molloy appeared convinced that Locke had perjured himself, he was undecided whether that was a determination to be made by the court or the jury. More will be heard about this issue as trial proceeds.
While specifics were not discussed in court this morning, the issue seems to be that Locke was reading about the case and looking at the trial record online prior to testifying. This is in conflict with Federal Rules of Evidence 615 Exclusion of Witnesses. FRE 615 was discussed early in the trial in the context of not allowing Libby residents who were expected to testify to view the trial prior to testifying. See Victim/Witness Controversy on this site. Witnesses, as well as the jury, have been instructed not to follow the trial on the news or online prior to their testifying in order to prevent their testimony from being affect by other witnesses’ testimony.
After the jury entered the courtroom, McLean called his next witness, Steven Venuti to the stand. Mr. Venuti worked for W.R. Grace from 1975 until 1989. Venuti’s experience and training is as an industrial hygienist, toxicology coordinator, and manager for Grace’s expansion plants prior to being named manager of the Environmental Health and Regulatory Compliance department at Grace headquarters in Cambridge. His testimony centered around testing Grace performed from 1976 to 1986 on asbestos fiber exposures in end users of Grace’s vermiculite products, including attic insulation and roof deck materials. McLean used Venuti to discuss Grace’s testing of vermiculite products for end user exposure to asbestos fibers. Exhibits of reports and memos relating to drop tests, barrel tests and binder tests were admitted largely without objection (exhibit 24A previously admitted, exhibit 40 previously admitted, exhibit 469, exhibit 527, exhibit 530, exhibit 533). After going through the exhibits, McLean tried twice to ask Venuti if any of the binder tests were successful, both times drawing objections for form of the question and lack of foundation. Objections were sustained and McLean was forced to move on to splitter tests with his question unanswered.
- Janet Harrison, 3:15 p.m.
Posted: April 8th, 2009 under Law.
Tags: Locke, Venuti
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Grace industrial hygienist: Airborne fibers could never be eliminated
Static crackling through the court sound system brought to a premature close questioning of Steve Venuti by the prosecution. Venuti is an industrial hygienist and was a toxicology coordinator for W.R. Grace back in the 1980s.
Government prosecutor Kris McLean attempted to introduce one long document containing eight internal Grace letters written between 1987 and 1988. However, the defense refused to admit the evidence without seeing each detail, so a letter-by-letter process ensued for the next 45 minutes.
All of the letters summarized the results of different “splitter” tests of various grades of Libby vermiculite (L-2, L-3 and L-4) when wetted down in various ways with various liquids, from water to glycol. In a splitter test, a sample of vermiculite is split and the resulting two supposedly identical samples are used in both the experimental test and a control test to make sure any experimental effect couldn’t happen for other reasons. According to Venuti, the tests were conducted to find methods of reducing airborne fibers in the lab, which could then be applied in the field.
However, all of the letters showed that airborne fibers were still released, regardless of the grade of vermiculite, the liquid applied or how it was applied. The lowest level of airborne fibers released was an average of 0.2 fibers per cubic centimeter for L-3 vermiculite doused in three to five pounds of water. Occupational Safety Health Administration requirements now say that exposure must be limited to 0.2 fibers per cubic centimeter. All of the test results in the letters were equal to or greater than current OSHA standards. Some of the test results, particularly for Nalco products, were as high as 1.5 to 3 fibers per cubic centimeter.
The letters, from H.G. Cummings to David Walczyk in charge of the Grace Construction Products division, were also sent to other Grace employees, including Venuti and Fred Eaton, an engineer who was involved in the vermiculite testing. All of the letters were eventually admitted into evidence.
McLean appears to be introducing this evidence as part of the conspiracy charge, to show that in 1987 Grace knew that Libby vermiculite released unacceptable levels of airborne fibers and tried unsuccessfully for two years to develop ways to keep the fibers bound by spraying with water or other fluids. Grace tested products that were being sold nationwide at the time for everything from masonry insulation to attic insulation to horticultural applications.
McLean tried to emphasize the lack of success for the jury by asking Venuti, “Did any of these treatments stop the release of fibers?” Venuti answered no.
As McLean tried to introduce another document, static began to pop in the courtroom speakers. As it picked up in intensity, Molloy made a joke about the mice getting restless and said although he hated to do it, he was going to have to recess the court until the problem could be fixed. Court was recessed until 1:15 p.m.
– Laura L. Lundquist (posted 1:05 p.m.)
Posted: April 8th, 2009 under News.
Tags: Lundquist, Venuti
Comments: 1 | [edit]
Molloy undecided on whether to strike Locke testimony
It is still up in the air whether Robert Locke’s testimony will be allowed to stand. Judge Donald Molloy explained Wednesday morning that he will put off ruling on whether the testimony should be stricken, a request made in the face of allegations that Locke perjured himself on the witness stand. Molloy had stern words for Locke, who was not present in the courtroom.
“He’s as close as I would ever want to see to perjury,” Molloy said. ”I think he’s perjured himself. If not he’s coming as close as I’ve ever seen.”
The judge still has not officially ruled because, in part, he is not quite sure if allowing the former Grace employee’s testimony is a “matter for the jury or for me.”
Molloy said he had gone as far as drafting an order to strike Locke’s testimony, but said that decision was based on his “reaction to the man” himself. He said after looking at only the legal side, the issue was muddied somewhat, and he was not ready to make a ruling.
In “reserving judgement,” Molloy said there will be no more testimony from Locke until the issue is settled. The judge also admonished Locke not to follow any of the trial on the Internet, particularly the district court Web site. Molloy sternly reminded the government attorneys that responsibility for the behavior of its witnesses ultimately rested on the state’s shoulders.
Court reconvened this morning after an intermission that coincided with the Spring break of Missoula public schools and the University of Montana. When the trial did begin, it picked up right where it left off, with lead defense attorney David Bernick upset at the government for various last-minute actions.
The defense accused the prosecution of submitting new material at 7:30 Tuesday night. Molloy asked Bernick if they needed a continuance to examine the material. Bernick said they did not, but were upset with the prosecution’s organization.
“This is a problem that they’ve created,” Bernick said. ”Their process is in shambles, and it’s profoundly problematic. The government has dropped two major witnesses, and has whole new witnesses.”
After the defense’s concerns were aired, the government called its next witness. Steve Venuti was division toxicology coordinator for W.R. Grace when he stopped working at the company in 1989.
Assistant U.S. Attorney Kris McLean took the initial questioning period to explain to the court Venuti’s various duties at the company. Venuti took part in a multitude of studies on the effects of vermiculite. At one point, he described a test where he took bags of vermiculite into a small room, and “kicked it up into the air.” His main jobs were to determine fiber exposure for various products that contained vermiculite and calculate the potential dangers, if any, of the materials.
McLean walked Venuti through a slew of Grace documents, having him explain any technical terms on the documents. All of the evidence dealt with assorted tests of vermiculite, like the binder tests. Venuti discussed this method, where agents such as water, soybean oil, or starch were sprayed on the vermiculite. These tests sought to reduce airborne fiber concentrations.
In the middle of another submission of a government document, Molloy excused the court for a 20 minute break.
–Josh Benham (12:25)
Posted: April 8th, 2009 under News.
Tags: Benham, Locke, Venuti
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