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)

Chemical giant W.R. Grace & Co. was indicted in 2005 on charges that the company and several former executives knowingly endangering the residents of Libby, Mont., for conspiring to keep the dangers of its mining operations secret and then obstructing EPA investigation into the situation. The trial began on Feb. 19, 2009.

The verdict came down at noon on Friday, May 8. After one full day of deliberation, the jury acquitted all defendants of all charges. As the victorious defense teams left Montana for homes in Chicago and Boston, trial coverage faded from the news, but the three-month trial and its dramatic conclusion reverberated through the town of Libby.

Two hundred miles north of the federal courthouse in Missoula, the people of Libby just want the medical costs associated with asbestos-related ailments covered. Acquittal or no, they feel W.R. Grace still has a moral obligation to the town.

“I want to be compensated for my health care,” said Sally Fuchs, who moved to Libby in 1968 and is the third generation of her family to suffer from respiratory illness. “I’m not asking for millions of dollars, I’m asking for them to cover my inhaler, my visits to the CARD clinic … no more hassles,” she said, referring to Libby’s Center for Asbestos Related Disease.

Fuchs, who is diagnosed with pleural plaque, a frequent precursor to asbestosis in Libby, said that she has yet to be compensated for her medical care despite being on the Libby Asbestos Medical Plan for years.

LAMP was established in 2003 with $2.7 million from Grace in order to compensate victims of asbestos exposure, but when that money is gone the program will end. Fuchs and others say it is increasingly difficult to collect compensation.

Fuchs said that when she received her most recent benefit card from LAMP her status had been downgraded from covering supplemental benefits to just screenings. Fuchs maintains that even when she was on the plan’s supplemental benefits program she was not compensated for her inhaler costs.

Fuchs spent the Saturday afternoon after the verdict trimming plum and cherry trees around her childhood home in Libby. The house sits between vermiculite tailings piles and the Grace export plant where vermiculite was shipped across the country. Surveying the scene, Fuchs said that as a child her chances for exposure were everywhere.

“Like Dr. Whitehouse told me, I couldn’t have lived in a worse spot, I got it from all ends,” she said, referring to Alan Whitehouse, a doctor who diagnosed asbestos-related disease in many of his Libby patients. “My brother and I played in the piles of it side by side …. it was fluffy, it was soft, it felt great to jump in a pile of it. When the sun would hit it looked like gold.”

Fuchs now lives in Washington, but returns to Libby to visit family. She said she’s not afraid to visit Libby, but worries about the future for her family and the community. Regardless of any court case, she said, the people of Libby need a way to deal with their medical costs.

The concern is not hers alone. Many affected by the disease worry that the criminal trail, although not directly linked to the health care benefits they receive from the mining company, could discredit claims and make collecting compensation even harder.

The majority of the patients affected by asbestos exposure in Libby seek care and treatment from the CARD center in downtown Libby. Founded in 2003 the center is active in providing outreach, awareness and screenings to the community.

Tanis Hernandez, a social worker at CARD, said the verdict will not leave people without treatment.

“The criminal trial doesn’t mean anything to CARD,” she said. “We’ll keep providing healthcare to people suffering from asbestos related diseases.”

Hernandez said asbestos-related health problems are not a thing of the past.

“We get 15 to 20 new patients each month that we’ve never met before,” she said. “Things are still unfolding, so to speak.”

Hernandez said that the center also experiences mutations of asbestos-related diseases that they have never been seen before.

People who have long watched the course of asbestos-related disease in their loved ones have a special apprehension about the future.

Nancy Gab grew up in Libby and moved back a year ago with her husband, Tom in order to be near her mother, who suffers from asbestos-related disease.

“Mom got it from Dad. Dad worked at the mine in the late ’40s,” Gab said. Her mother doesn’t want to sue anybody, Gab said, but still needs care. “I want to get her on the medical plan, get her the meds when she needs them”

Gab fears her mother will suffer a fate similar to that of her father, who required intensive medical care before he died. “Dad died in ’84,” she said. “They had to put tubes in his lungs. He swelled up like a chipmunk.”

Tony Fantozzi, a Libby native who returned to work here as an emergency room doctor at St. John’s Lutheran Hospital, said that to people like Gab, with a wary eye on the future, the verdict seemed like an insult from the past.

“The verdict was definitely shocking, eye opening and very disappointing,” he said. “It’s kind of like a slap in the face, like an insult personally and to the rest of the community.”

There’s a lot of care involved in treating asbestos-related disease, Fantozzi said. Fifteen to 20 percent of the patients who show up at the emergency department need urgent care to help them breathe. It happens every day, Fantozzi said, even though asking for help is something not all Libby residents do easily.

“They’re loggers … blue-collar guys. They’re people that don’t call in sick. They’re people that don’t come in unless something is really wrong,” he said. “They say, ‘you know Tony, I just can’t hunt and hike like I could five years ago’… it’s a really sad picture.”

Fantozzi said that once a patient is symptomatic, the medical care they need is regular and expensive and assistance is getting harder to secure.

“They need a CT every year, a respiratory evaluation every year, somebody’s got to pay for it,” he said. “But I don’t see that happening. I don’t see their expenses getting paid.”

New patients arrive precisely because the people of Libby are self-reliant, can-do people.

Peggy Sue Dixon, a waitress at the Red Dog Saloon who raised her children in a cramped house she rented in Libby, said she has reason to believe her children, now teenagers, were exposed to asbestos in that house.

“I was a single mom. I didn’t have no choices,” she said. “I gave my kids the other rooms in the house and built one for me and the baby in the attic.”

Dixon said she laid a plank over the rafters and insulation in the attic.

“We walked over that damn stuff for more than a year,” she said. “When the light was on you could see sparkly things in the air. It was beautiful.”

Dixon lived in the attic with her infant, Jonathon. Dixon said she took Jonathan to the doctor twice for respiratory problems before he turned one year old.

“The chalked it off as asthma,” she said, and added that she never told the doctor about the asbestos-filled attic.

Jonathon, now 15, uses an inhaler. But Dixon said she doesn’t worry about him because he’s athletic and plays football and baseball.

“I know I need to get him in,” she said. “But it’s hard, you know.”

Back with her plum trees, Sally Fuchs mulls the meaning of justice for Libby.

Steady, meaningful help from W.R. Grace to pay for medications and treatment would be a step toward righting a wrong, she said, not jail time for aging executives.

“The corporation needs to be punished, not the individuals. The men are old, putting them in jail wouldn’t change anything,” Fuchs said. “If they knew they were harming us, they have to live with that, that’s between them and God.”

– Kyle Lehman and Will Grant

(Written May 13, 2009.)

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

In the long run the plan is to maintain this site as an archive of the trial.

– Laura Lundquist

Attorneys for each of the defendants had levied harsh criticisms on the prosecution and McLean acknowledged it stung a little; however, he said it is a common and occasionally effective tactic to deflect attention from themselves.  But other than calling the approach a distraction, McLean did not directly address the holes illustrated by the defense.

McLean drew attention to the closing by David Bernick, which pounded on themes of “credibility” and “the whole truth.”  McLean reminded the jury, “The documents don’t lie.  They were created by the defendants.  Please read them.  They will tell you the whole story.”

When McLean tried to turn attention to the citizens of Libby by rhetorically asking, “Who followed up with the citizens of Libby?” Bernick objected.  The whole courtroom seemed to be caught off guard by the interruption—the nine previous hours of argument had gone entirely uninterrupted except for stretch breaks.  Judge Molloy sustained the objection as improper rebuttal and McLean stood for a long time gathering his thoughts again.

Some of the issues McLean addressed on rebuttal were accusations about the EPA’s own failings, questions about the corrupt intent elements, statements by deceased-defendant Alan Stringer regarding products with less than 1% tremolite in Libby vermiculite, how chronic exposure can still be an imminent danger, the impossibility of quantitative health risk assessments, and the plan developed under Chip Wood.

The Wood plan was characterized by the defense as a business strategy and not a conspiracy.  While the defense claimed it was in direct conflict with a conspiracy concept, McLean argued that during Wood’s 1977 to 1982 CPD tenure improvements were made and good things done, but that defendant Henry Eschenbach’s 1983 disclosure to the EPA was business as usual—incomplete and misleading.  McLean charged that the “core conspirators” carried on in secret under Wood, and went back to their secretive ways once Wood left CPD.  McLean used the 1983 letter to point out the “remarkably similar statements” found in Grace’s 2002 response to EPA’s Request for Information letter: there is no reason to expect hazardous exposure levels from airborne fibers.  “It’s the same plan, the same language to the government, for twenty years,” McLean said.

McLean took an especially hard line on defendant Jack Wolter.  He acknowledged that Wolter toiled to reduce exposures to mine workers, evidence Wolter was well-aware of “the propensity to release.”  Wolter, he argued, had been present from the beginning, had received “every memo on every topic,” was the chair of the tremolite study committee, and owned the flyway property at one point.  This type of evidence, McLean argued, could be used to infer the defendant’s criminal conduct.

McLean made a final plea for the jurors to apply their collective common sense to “the law the court gave you and the facts we presented” and to find the defendants guilty as charged.

Before sending the jury off to deliberate, Molloy called the marshals and bailiffs forward. All took an oath to protect the jury until it has reached a unanimous verdict.  The judge gave a brief constitutional lecture, drawing particular attention to the Sixth Amendment: the accused has a right to a speedy and public trial by an impartial jury.  He implored the jury to remember its obligations for full and fair consideration of the arguments and evidence within the confines of the jury instructions he gave at the start of the day.

“Your judgment is extremely important to all of us,” said Molloy.  The jury was escorted out by the marshals to begin deliberations.

–Kirsten Madsen (posted at 9:17 a.m.)

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.)

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

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

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

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

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

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

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

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

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

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

–Kirsten Madsen (posted at 9:34 p.m.)