UM Grace Case

Backed by an array of colorful charts, lead defense attorney for W.R. Grace Co., David Bernick systematically worked to pick apart the government’s case.  Bernick’s closing argument Wednesday afternoon focused on what he insisted was the prosecution’s lack of credibility.

“The whole case, a politically driven case, is tainted,” Bernick said. “Has the government been credible in the prosecution of this case? No!”

Bernick’s direction was clear from the opening statement.

“I want to start out with one word: credibility,” Bernick said.

In front of a packed courtroom, Bernick argued for close to two hours, checking with Judge Donald Molloy repeatedly, as Molloy had initially limited Bernick to an hour and fifteen minutes.  Bernick portrayed the prosecution as a desperate group clinging to documents taken out of context and only using witnesses who were on their side.

While admitting that Libby residents have undergone incredible hardships, he said that is not what the case is about.

“The tragedy of Libby — Yes, people got sick.  No, that is not the charge,” Bernick said.

One charge after another was analyzed, scrutinized, and eventually declared false by Bernick in the “dark flower” that he used to symbolize the prosecution’s case.

Bernick spent a considerable amount of time looking at the conspiracy charge.

The charts accompanying Bernick gave the jury a visual of the charges, as well as aiding Bernick in laying out the perceived wrongs of the government’s case.

Titles of the charts ranged from “Government showed allegiance to Libby, not the law,” to “No good deed goes unpunished.”

“It’s not about if we have a document in our files.  There has to be an agreement.  It’s not enough to just meet and discuss business matters.  They must find a plan to commit a crime,” Bernick said.

The conspiracy charge, Bernick said, can only be proven with that complicit “agreement.”

“There is not a single person that has testified about an agreement to commit a crime,” Bernick said.  “There was a plan, but it was a business plan calling for compliance and cooperation (with new government guidelines).  Even Locke and Venuti (government witnesses) say the plan was to comply.  Without an agreement they got nothing.”

A conviction based on a knowing release and endangerment in this trial requires proof that a defendant knowingly committed a “heinous crime,” the release of asbestos, that would put people in imminent danger, Bernick said.

That danger has to be more likely than not — “a greater than 50 percent chance” — to cause death or serious bodily injury to a person exposed to the release.  Bernick said of 1,800 people from Libby that were tested, only 2 percent developed asbestosis and 18 percent had pleural diseases.

If the number did happen to exceed 50 percent, the defendant could only be found guilty if the release came after 1990 when the criminal provisions of the Clean Air Act were passed.

“They have to show that stuff went into the air (after that date).  It has to be a new release, and has to show the first release after 1999,” Bernick said.

Government witnesses were scrutinized by the defense through the trial and Bernick used that to attack the prosecution’s credibility.  He repeatedly brought up witness’ testimony detailing the conversations they had with the government prior to their day in court, trying to make a case that the government had improperly coached its witnesses.

Every time Bernick recalled these instances, he said the government had either not shown the witness the entire document, had only given experts figures from documents, and not the whole document, or the witness simply had no knowledge of the document in question.

“They turned their witnesses into puppets by giving them only particular documents to get to this dark flower,” Bernick said. “The government only used experts that were insiders they knew they could count on.”

Bernick ended by telling the jury it was especially important to establish that the judicial system works in this area of the country, where Grace’s reputation, he said, is not good.

He closed with a plea to the jury:

“Treat the company the same way you would perceive an individual.  My client is a company comprised of people.  If they are found guilty, there will be a penalty, and the company will be a convicted criminal. ”

–Josh Benham (posted at 4:55 P.M.)

Wednesday morning, the prosecution packaged its entire case into three hours for the jury, connecting specific evidence with each of the eight counts against W.R. Grace and the remaining three defendants. Government attorney Kris McLean covered the conspiracy count, followed by attorney Kevin Cassidy outlining the remaining counts of knowing endangerment and obstruction of justice. 

“This is a case of right and wrong,” McLean said. “This is about holding the defendants accountable for a horrible wrong.” 

Opening with the same statement he used on April 28 to convince Judge Donald Molloy that the government had made a defensible case, McLean took close to two hours to reconstruct the government’s conspiracy case. 

McLean said the government had to use circumstantial evidence – documents – because it is difficult to show direct evidence of intent. After reiterating that the point of the Grace conspiracy was to make money and avoid liability, he highlighted close to 50 documents dating from 1972 to 2003, all of which were supposed to demonstrate the defendants’ knowledge of the hazards of Libby vermiculite.

Many Grace internal memos discussed company worries about study results, new restrictions and possible ways of dealing with them. Throughout the 1970s, most of the communications involved Grace defendants Jack Wolter and Henry Eschenbach.  

McLean said that each memo showed that Grace executives knew of the dangers of Libby vermiculite and tried to limit the spread of information. He gave greater emphasis to the documents that he said were overt acts demonstrating the conspiracy, such as a 1977 hand-drawn “Contingency Plan Chart.” On the chart, the executives had listed “bad publicity” and “lawsuits” under “unfortunate outside events.” 

“Why would Grace be worrying about class action lawsuits in 1977 if they didn’t know there were problems with Libby vermiculite?” McLean said. 

The “Chip Wood era” began in 1977, according to McLean. Grace brought in Elwood “Chip” Wood to deal with public relations, and he established descriptive terms to label the amount of asbestos in Grace’s products, such as “small” to describe products containing up to 6 percent asbestos. 

“’Small’… ‘minimal’… these are words you use to deceive,” McLean said. 

But according to McLean, the real trouble for Grace began in 1978, when O.M. Scott, a company that purchased vermiculite from Grace for horticultural purposes, reported to the Environmental Protection Agency that its workers had bloody pleuralisms. McLean said this was when Grace started to worry that “the cat may get out of the bag.” The O.M. Scott incident prompted the National Institute of Occupational Health and Safety to begin an investigation of the Libby operation, and memos over the next 17 months showed how Grace stalled and in doing so, defrauded, NIOSH, McLean said. 

Defendant Robert Bettacchi entered the picture at Grace in 1983, and in 1990 became the point man for the sale of Grace’s Libby property. The conspiracy at this point, McLean said, is illustrated by a 1993 memo from Alan Stringer, manager of the Libby mine, after the 3M company refused to buy the property because of concerns about liability: “To sell, we must find a smaller organization who will accept the liability.” This smaller organization turned out to be Rainy Creek Nursery owned by Mel and Lerah Parker.

To prove conspiracy, the government had to show that an overt act occurred that furthered the conspiracy sometime after 1999. McLean listed six overt acts, including three that are the focus of three other counts. Stringer, formerly a defendant but now deceased, committed one of the acts in 1999 when he wrote a letter to the residents of Libby. “I knew there was a health problem associated with exposure to vermiculite … for workers and their families,” Stringer wrote.   

Then Cassidy stepped to the lectern and ticked off the remaining seven counts. He began with the obstruction of justice counts since McLean had just spelled out the evidence in support of the conspiracy charge. 

“When the 1999 news stories broke, Grace was in trouble. We will show that Grace misled the government and put the people of Libby in harm’s way,” Cassidy said. 

Count 5 asserts that Stringer lied when he told EPA on-site coordinator Paul Peronard that Libby vermiculite contained less than 1 percent asbestos.

Count 6 asserts that Grace lied in multiple answers on the EPA’s 104(e) questionnaire, which caused a delay in Peronard’s assessment of the situation in Libby. Cassidy pointed to all the testimony refuting Grace’s answers, including witnesses who said that the public had access to vermiculite, who told about vermiculite tailings on Rainy Creek Road and Libby school tracks and who verified that workers regularly left the mine with dust on their clothes. 

Cassidy used the Rainy Creek Road sanding to claim that Stringer’s default response to anyone who questioned was essentially, “There is nothing to see here.” 

Count 7 asserts that, once the mine site was bought back from the Kootenai Development Corporation, Grace denied the EPA access to the site and delayed cleanup for two field seasons. The reason Grace gave was because “the land was rugged and mountainous,” but Cassidy said testimony showed that Grace was more worried about science. 

“This is America,” said Cassidy, appealing to the jury. “You have a legal right to deny someone access to your property, but consider this in light of Grace’s other actions.” 

Count 8 asserts that Grace lied to the EPA about the dangers of Zonolite attic insulation. The letter Grace wrote to the EPA stated, “There is no risk to human health.” 

Cassidy prefaced the knowing endangerment charges by pointing out that, when proving “imminent danger,” the government doesn’t have to prove that death or injury would occur immediately, which is important due to the latency period of asbestos-related diseases. The knowing endangerment counts focused on three locations: The Parker’s property, formerly the screening plant; The property Burnett leased, formerly the export plant; and the city of Libby.

For each of these places, Cassidy described the testimony of witnesses who said vermiculite was left on the property and showed the associated air sampling results. He said the evidence of imminent danger came from doctors James Lockey, Richard Lemen and Aubrey Miller.

“Most importantly, you heard from Dr. Whitehouse who testified about all the Libby residents who have asbestos-related disease,” Cassidy said. 

Both lawyers ended by thanking the jury for their time and making a final plea. 

“This is the last time I will be able to address you. But when this day is concluded, and no more lawyers are arguing, I know you will do your best to consider the evidence and carry out justice,” Cassidy said.  

“Apply your collective common sense and find the defendants guilty on all counts beyond a reasonable doubt,” McLean said. 

– Laura L. Lundquist (posted 3:25 p.m.)

The beginning of the end of the W.R. Grace trial started Wednesday morning as Judge Donald Molloy walked jurors through jury instructions and the prosecution started to present its closing argument.

Molloy discussed more than 50 separate instructions with the jury immediately after they entered the courtroom.

“You must not single out some (instructions) or ignore others, they are all equally important,” Molloy said.

The jury was also told that they could not consider the testimony of Robert Locke, a disgruntled former global vice president for Grace’s construction division, when deciding on the charges of Bettacchi. They should also look at Locke’s testimony with “more bias” than other witnesses, Molloy told the jury.

Jurors were directed to throw out a part of the testimony of Dr. Alan Whitehouse, a pulmonologist who treated many former W.R. Grace employees. Molloy told jurors that Whitehouse’s predictions about asbestos were to be disregarded, but the rest of his testimony was to be considered.

To help the jury come to a unanimous verdict more easily, Molloy gave definitions of many words that have been frequently used throughout the trial and in the indictment. The defined words were: release, ambient air, asbestos, imminent danger and serious bodily injury.

“This is in your hands,” Molloy told the jury before a short recess.

-Elizabeth Diehl (11:18)

 Court ended Tuesday afternoon behind closed doors. The court was closed to the public while attorneys from both parties discussed jury instructions before Judge Donald Molloy.

Last week, Molloy said that jury instruction would be argued before the public. But the clerk of court told reporters and onlookers differently Tuesday.

After Molloy dismissed the jury, attorneys for both the prosecution and defense met in Molloy’s chambers to discuss the instructions. The lawyers emerged from the judge’s chambers, left court out the backdoor to review what they had just come up with, and the sparse audience was told the remainder of court for the day would be off the record.

Molloy told the court last Wednesday that he had heard only one other case in front of an audience, and in the name of transparency, he said, jury instruction in this case would be argued before the court.

Jury instruction will precede closing arguments and will be open to the public Wednesday morning.

–Will Grant (posted 5 p.m.)

Defense counsel for W.R. Grace said they have no further witnesses Thursday afternoon after finishing up an hour and a half direct of EPA on-site coordinator, Paul Peronard.

Molloy will instruct the jury first thing in the morning, and the jury will begin to deliberate by tomorrow,  Molloy said.

“Life’s a circle,” defense attorney David Bernick told  Peronard as he took the stand for a second time Tuesday afternoon.

Peronard was first called as a witness for the government at the beginning of the trial in February.

Bernick focused his questions on letters and emails that Peronard sent to officials within in the EPA in 2002

Bernick emphasized Peronard’s reference to himself as “King of Libby.”  Peronard said the remarks were taken out of context and that he was working under several limitations in the EPA when he was in charge of the Libby cleanup in 2002.

“It wasn’t the war powers act, I couldn’t put a missile base up there,” Peronard said in reference to his power in Libby.

Tensions thickened between Peronard and Bernick at many points during direct.  Bernick moved to strike two of Peronard’s answers because they didn’t answer his question. Molloy also had to tell the two to not argue over each other.

“You’re not on trial here, I’m not saying you are,”  Bernick told Peronard. “You don’t have to defend yourself.”

Bernick asked Peronard about Libby attic insulation cleanup and tried to prod Peronard into saying the EPA didn’t want to bring national attention to the cleanup.  Peronard insisted this was not the case.

“Isn’t it true, in 2000, there was discussion between you and EPA headquarters about known risks to Libby residents in the late ’80s?” Bernick said.

The government’s redirect was short as the prosecution tried to subdue the drama that Bernick attempted to stir that afternoon.

Under cross-examination, Peronard told the jury that he never bullied anyone within the EPA, nor did he exert selfish desires to be the “King of Libby.”

–Kelsey Bernius (posted 4:45 pm)