Main menu:

Site search

Categories

Tags

Blogroll

UM students from Libby split on verdict

inkwellthumbnailMISSOULA (May 18, 2009) –  Not guilty.

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.” Read more »

Verdict is justice deferred for many Libby residents

inkwellthumbnailLIBBY (May 10, 2009) — The environmental criminal inquiry into the most sprawling industrial disaster in U.S. history ended in the failed prosecution of a company charged with poisoning a small Montana town. Some residents of the town say no judge’s gavel can close their case, that death may be the only end to their trial. Justice on earth, they say, may be as simple as help paying the medical bills.

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. Read more »

Outside the courtroom: Relief and disappointment

inkwellthumbnail1After a three-month trial, jurors deliberated for just one full day before acquitting W.R. Grace Co. and three of its executives Friday of all criminal charges.

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. Read more »

Rehabilitation and reaction

Technical difficulties that took the Grace Case Project offline on Friday night have been resolved. Check back for reaction stories from the courthouse on Friday, the university campus and Libby.

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

Hello world! (Grace Case blog returns)

This placeholder post will be retained in order to keep the comments linked to it. This is the same blog as before the server crash, with a slightly different look and a new server.

W.R. Grace not guilty on all counts

inkwell.jpgFriday morning, the jury unanimously found W.R. Grace not guilty on all counts. The jury also found defendants Jack Wolter, Henry Eschenbach, and Robert Bettacchi not guilty.

– Laura Lundquist

Jury has returned with a verdict

The jury in the W.R. Grace trial has returned with a verdict. Court will reconvene at 11:15 Friday to hear it.

Case goes to the jury after rebuttal argument

scalesthumbnail-copy.jpg After each defendant had pled his case to the jury, the government was given one last chance to speak to the jury and prove it had met its heavy burden of proving the charges beyond a reasonable doubt.  Kris McLean rose to rebut the closing arguments by defendants W.R. Grace, Robert Bettacchi, Henry Eschenbach, and Jack Wolter.  It was after 5:30 p.m. when McLean got back to the podium on rebuttal.

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.)

W.R. Grace Case is handed to the jury

inkwell.jpgThe 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 Bettacchicharged 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.)

Government lists documents it says support the “secret”

scalesthumbnail-copy.jpgKris McLean conceded what has been pounded home throughout the trial: It was no secret to the government that there was asbestos at the Libby mine or that asbestos was carcinogenic.  “The secret was in the products,” he said Wednesday.

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.)