Motion to Sever
The government obtained one indictment against WR Grace and seven former executives of the corporation. The government charged the corporation with conspiracy to commit an offense against the United States and to defraud government agencies, violations of the Clean Air Act, and obstruction of justice. In addition, the seven former executives are all also charged with conspiracy. Generally, when the government indicts several individuals in a single indictment, all of the individuals will go to trial at the same time. In this case, therefore, WR Grace and the seven executives are all considered co-defendants and would tried at the same time in one large trial. Courts prefer that all co-defendants be tried in a single trial rather than each defendant being tried alone. A single trial of multiple co-defendants preserves resources, reduces the burden and inconvenience on witnesses and government agencies, and decreases the delay in bringing those accused of crime to trial. This is particularly true in prosecutions for conspiracy because the same evidence is generally admissible against all of the co-defendants. Multiple trials, on the other hand, dramatically increase inefficiencies because the court is tied up for longer on the same case, the witnesses must testify repeatedly, and multiple juries must be convened.
When the government alleges that several people have worked together to commit a crime, such as in a conspiracy, a single trial can also be advantageous for the prosecution. When all of the co-defendants are present in a single trial, the government can try its case one time to one jury. The single jury hears all of the evidence pertaining to all of the defendants. In addition, when all of the co-defendants are tried together, the defendants are unable to take advantage of the “empty chair” defense. In the “empty chair” defense, a defendant attempts to shift blame from themselves onto the missing co-defendant, the “empty chair.” When all of the co-defendants are tried together, efforts to shift blame to other co-defendants is more difficult because the co-defendant is present and can resist those efforts. Often, this will lead to co-defendants working to prove that the other co-defendants are the guilty parties, a situation that makes the prosecution’s job to prove the guilt of the defendants that much easier.
While single trials of co-defendants are preferred in the criminal justice system, that preference must give way if a single trial would unduly prejudice a co-defendant. In other words, the government can be forced to try each co-defendant separately if that is the only way to ensure each co-defendant gets a fair trial. For instance, when the evidence against one co-defendant is strong and the evidence against another co-defendant is weak, trying the two co-defendants together can be unfair because the jury could confuse the evidence and apply it equally to both defendants. The one co-defendant would suffer prejudice through “guilt by association.” Separate trials, one the other hand, could preserve each co-defendants’ opportunity for a fair trial.
The process of separating a single trial of all co-defendants into multiple trials of individual defendants is known as “severance.” To determine whether severance of co-defendants is appropriate, courts consider several factors: whether the jury could have difficulty keeping straight the evidence that applies to each co-defendant, whether the judge could effectively tell the jury the purposes for which it can consider certain evidence; whether the evidence is especially complex; and whether defendants will present “antagonistic defenses.” Antagonistic defenses mean that one co-defendant will argue that they are not guilty by claiming that another co-defendant is guilty.
In this case, the individual co-defendants asked the District Court for severance–to grant them all individual trials–from defendant WR Grace. The individual defendants were concerned that the vast majority of the evidence relates to WR Grace and not to them as individuals. They were concerned about the jury’s ability to keep the evidence compartmentalized and about the prejudice to them through “guilt by association.” The District Court denied their request for separate trials. The District Court found that judicial economy strongly weighs in favor of a single trial, especially since all of the defendants are charged with conspiracy and all of the evidence as to conspiracy is admissible against each co-defendant.
In addition to the “guilt by association” argument, several individual defendants (Stringer, Favorito, Eschenbach, Wolter, and Bettachi) also claimed that they needed severance from WR Grace because they intend to rely on an “advice of counsel” defense. Essentially, these defendants want to claim that the actions that they took were done after they had received legal advice from WR Grace’s attorneys. In order to establish this defense, the individuals intend to rely on documents over which WR Grace asserts an attorney-client privilege. As to defendants Eschenbach, Wolter, and Bettachi, the District Court denied the motion for severance. The Court found that the documents that these defendants wanted to use would not prejudice WR Grace, therefore, there was no conflict between WR Grace’s attorney-client privilege and these defendant’s 6th Amendment rights to present a defense.
The District Court did grant the motion to sever of defendants Favorito and Stringer. For these two defendants, the Court determined that there was a conflict between WR Grace’s attorney-client privilege and the defendant’s Sixth Amendment right to present a defense. Generally, a lawyer is not allowed to reveal confidential information learned from a client. In this case, defendant Favorito was the attorney for WR Grace and must not reveal confidential information that he learned from his client, WR Grace. On the other hand, Favorito is also a defendant and his inability to talk about what WR Grace told him may prevent Favorito from being able to defend himself. The District Court found that the conflict between WR Grace’s attorney-client privilege and defendant Favorito’s constitutional right to defend against the charges required separate trials for WR Grace and Favorito. As to defendant Stringer, the Court found that Stringer wanted to introduce privileged WR Grace documents that would prove he was not guilty of the crimes charged. Because the admission of this privileged information would prejudice WR Grace’s ability to have a fair trial, the Court found that severance of WR Grace and defendant Stringer was appropriate.
Defendant Stringer died before this case came to trial. Therefore, Defendant Favorito will be tried alone several months after the conclusion of the trial of WR Grace and the other five executives.