April 17, 2009
Below are all posts for Friday, April 17, 2009, in reverse chronological order. Read from the bottom up.
Defense Makes Its Case on Prosecutorial Misconduct – “This Case Should be Dismissed”
After lunch, defense counsel continued to question Agent Marsden on what he deemed were obvious showings of prosecutorial misconduct. Despite Bernick’s rapid questioning and the imploring of Thomas Frongillo, there was a significant absence of evidence establishing prosecutorial misconduct. Arguably, the defense did not meet the necessary burden of proof. However, by all appearances, Judge Molloy believed they did.
The defense’s goal was to examine Marsden’s interviewing techniques (trying to establish them as “coaching” and not interviews), and thus to show that the prosecution failed with Locke, and as a result likely failed with all of their witnesses. In other words, to establish a systemic failure on the part of the prosecution in its handling of witnesses. To achieve this goal, Bernick focused his attention on Robert Locke using the phrase “buyer beware” when he was interviewed by the prosecution in preparation of the trial. The phrase concerned defendant Robert Bettachi’s opinion of the sale of contaminated land to the Parkers for their nursery. During the trial, Locke used the phrase “caveat emptor” (which is Latin for “buyer-beware”—the two meaning the same thing to a law student) and embellished his response with what sounded like reiteration of the Parkers’ testimony. Bernick tried to establish that the use of the phrase “caveat emptor” sent Marsden on a hunt through his emails, where he deleted certain emails in an effort to determine which correspondence he had with Locke needed to be divulged pursuant to Giglio.
However, other than this modicum of direct evidence, the defense could only muster circumstantial evidence at best, and insinuations at worst as to prosecutorial misconduct. Bernick spent thirty minutes examining the nature of the immunity agreement which Marsden offer Locke and elected to turn down. Marsden never admitted to any “nod and wink” agreement with Locke that he did not need to accept the immunity agreement because he would not be charged with conspiracy. The only evidence Bernick mustered was a four hour meeting between Marsden and Locke where there were no notes taken – a procedure consistent with prosecutorial pretrial practices.
Frongillo was more forceful in his argument. He implied that when Marsden heard “caveat emptor” the prosecution team went into a “search to save their star witness, a witness who spoke about ‘killing a coyote in Cambridge.’” As a result, emails were deleted and witnesses were found to corroborate Locke’s testimony. Frongillo closed in a frenzy, stating that there were “no notes about anything. Nothing about mushrooms. Not a damn thing.”
Assistant U.S. Attorney Timothy Cavan appeared to easily rehabilitate Marsden. Cavan established that the defense was misconstruing certain language in the depositions and emails. Cavan further focused on the fact that the prosecution made a mistake in not turning over the emails at an earlier date, but quickly remedied the problem. Cavan was effective, deliberate, and established that there was no evidence of any prosecutorial misconduct.
The defense, who had the burden of proof, closed the hearing first. Bernick started, stating that the prosecution’s treatment of Locke is a systemic problem that pervades the entire case. The argument that Bernick presented was that if Marsden treated Locke in this way, then it is likely he treated all of his witnesses this way. To bulwark his argument, Bernick stated that the government was using Andrew Schneider’s “The Air that Kills” as their bible; using politics and emotion to guide their case. Bernick then presented three remedies he felt were available to Judge Molloy and succinctly addressed each:
(1) to allow Locke to take the stand and be cross-examined further, which Bernick deemed ludicrous,
(2) to strike Locke’s testimony, which Bernick claimed would be unsuccessful because “this bell is too big to be unrung,” and
(3) dismissal, which Bernick deemed the appropriate remedy.
Bernick closed by saying that both a motion to acquit (Rules of Criminal Procedure 29) and a brief to dismiss for prosecutorial misconduct will be filed with the court.
Frongillo closed next, and cited a series of 9th circuit cases which he deemed established that the misconduct displayed by the prosecution required dismissal. He further argued that he hopes that Attorney General Eric Holder takes a look at this case and “fixes the prosecutorial system.”
Cavan responded to these contentions by stating that the jury should be allowed to consider these issues. “Your honor, this is about the process, and ensuring that the judicial process is not short circuited,” Cavan stated. He concluded by making it clear that the prosecution played by the rules, and that “short circuiting the judicial process is not the answer to this problem.”
Despite the lack of evidence and Cavan’s sound argument, Judge Molloy appeared to agree with the defense. The day ended with Molloy stating he was concerned with what he deemed was the “underlying problem here, which is about the process being tainted.” He then proceeded to call Robert Locke a “liar.”
Molloy concluded his comments by stating the following, “The way of business here appears problematic to me [note: a phrase used by Bernick in his closing]. I am reminded of an instance where as a young attorney I saw federal agents absolutely destroy a home during a search. It was not right. Somebody in the Department of Justice needs to have the courage to do what is right.”
To which Molloy rose and left.
–Christopher Orman (posted 6:38 pm)
Posted: April 17th, 2009 under Law.
Tags: Locke, perjury, prosecutorial misconduct
Comments: 8 | [edit]
Defense argues for dismissal of case
Judge Donald Molloy ended Friday’s court session by saying that he hoped that the way the government has handled and presented this case is not an example of government business as usual.
After EPA criminal investigator Robert Marsden left the stand, defense attorneys argued that Molloy should dismiss the case against W.R. Grace and its executives. Defense attorneys said that the government’s actions in this case prevent the court from achieving justice.
The defense argued that the prosecution’s misconduct in this case demands action from the Department of Justice. Defense attorney David Bernick said that Robert Locke’s testimony is but one example of the government’s mishandling of this case and that there are other problems that reflect overall misconduct of the prosecution.
“We’ve seen perjury in this case. We’ve seen subordination in this case,” Bernick said. “The prosecution believes it can work with witnesses, turn them into advocates.”
Molloy heard recommendations on behalf of each defendant for solving the problems in this case. Each defense attorney recommended dismissing the case. The trial was hugely expensive, they said, and was taking a heavy toll on each defendant.
Defense attorney Stephen Spivak said that the wife of his client Robert Walsh had a stroke shortly before this trial started. He acknowledged that there would never be any way to prove that this case caused her stroke, but said, “I’ll never think that anything but this case caused her stroke.”
Prosecuting attorney Timothy Cavan argued for Locke’s return to the stand for further examination. He acknowledged that there had been problems with the government’s case but that the problems were not incurable.
“There’s no such thing as a perfect case,” Cavan said. “You’re going to have mistakes. The question is, when those mistakes occur, can you cure them?”
The defense argued that putting Locke back up on the stand would be a waste of everybody’s time. The government has failed to make a case for any of the charges in this case, the defense said.
“The way the government has built its case and presented its case speaks to its knowledge of the weakness of its case,” Bernick said.
Molloy ended court by saying that he thought it was time someone in the Department of Justice stood up and did the right thing. He said that he knew Locke was lying and that the jury would agree, but that there were larger problems in this case that needed fixing.
“I think we have a very, very serious problem,” Molloy said.
Molloy said he will consider the issue and briefs over the weekend, and that court will reconvene Monday at 9 a.m. for a truncated week. Due to previously planned personal obligations of the judge, court is scheduled to be in session only Monday and Tuesday of next week.
– Will Grant (posted 5:15 p.m., edited 4/18/09)
Posted: April 17th, 2009 under News.
Tags: Grant, Locke
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Marsden testifies on Locke bias, immunity
With the jury still out of the room, Defense attorney David Bernick continued his cross-examination of EPA agent Bert Marsden this afternoon, questioning him extensively about Robert Locke, a former Grace executive and government witness who may have perjured himself several weeks ago. At issue were emails sent between Marsden and Locke, whether Locke was actually an independent witness at risk of being charged or not, and Locke’s allegedly perjurous statements.
The emails in question encompassed all those emails between Marsden and Locke from the pretrial period until Locke’s testimony. These emails, which Bernick contended contain information that could have been helpful to the defense, were apparently not provided to the defense until after defense attorney Thomas Frongillo’s cross-examination of Locke when the perjury allegation was first made. After the allegation, Marsden went back to his office and reviewed his email correspondence with Locke. He printed out a stack of emails that he thought were relevant and deleted the rest.
This, as Marsden acknowledged on redirect, turned out to be a mistake. Marsden then met with prosecutor Kris McLean, and the two decided that all the emails needed to be turned over. Marsden then retrieved all the emails from a server where they were backed up and they were given to the defense.
A number of these emails were displayed to the court, including messages where Locke offered legal advice and arguments to the prosecution team right up to the week of the trial. Marsden asserted that he did not consider Locke a member of the prosecution team, and that his legal advice was not considered.
During the cross-examination Bernick continued to assert that while Locke was presented to the jury as an independent witness, a co-conspirator who was still at risk of being charged, in fact he was working closely with the prosecution and was not at risk at all.
On redirect, Marsden described a 2006 meeting with Locke and his wife in which Locke was informed that his status had been changed to ‘unindicted co-conspirator.’ Locke reportedly became angry and left the room. At that point, Marsden informed Locke’s wife that he could be charged at some point in the future, and that he should retain legal counsel.
Later, at a meeting between the prosecution team, Locke, his wife, and his lawyer, Locke was offered a letter of immunity. Locke refused to sign the letter, believing that this would make him more credible to the jury.
The critical issue of whether or not Locke’s story about defendant Robert Bettachi saying “caveat emptor” (or “buyer beware”) in relation to the sale of Grace’s real estate in Libby was not resolved in testimony today. Marsden described his first recollection of Locke telling this story at a pretrial meeting this January. Later on, in March of this year, Marsden reviewed Locke’s deposition in front of a grand jury in 2006, in which he made statements to the effect that he had never discussed the properties with Bettachi. Marsden testified he realized at that point that these two contradictory statements were new information, and therefore had to be provided to the defense.
After the prosecution wraps up its redirect of Marsden, arguments will be heard by Judge Molloy concerning Locke’s testimony up to this point, whether or not he will be allowed on the witness stand again, and the status of the case as a whole. A decision on those issues may be reached later today.
–Daniel Doherty (posted 5:02pm)
Posted: April 17th, 2009 under News.
Tags: Bettach, Doherty, Locke, Marsden
Comments: 2 | [edit]
Bernick says Locke misled the jury
It seemed everyone but the jury had packed into Molloy’s 9th District Federal courtroom this morning for a special hearing to decide whether the testimony of former Grace vice president Robert Locke can be used in trial. With no empty seats, a handful of observers stood at the courtroom doors watching as David Bernick methodically probed an EPA agent about Locke’s relationship with the government’s legal team.
Locke took the stand earlier in the trial and made statements that may have contradicted the testimony he gave before a grand jury in 2004. Today’s hearing is supposedly geared to decide whether Locke’s testimony will be allowed to stand. Through his interrogation of Robert Marsden, an EPA criminal division agent from Missoula, Bernick tried to show that Locke had both a “special relationship” with the government’s legal team, in which he would not be charged, and a grudge against Grace and its executives. Marsden was a part of the legal team, working as Locke’s fact-checker and making sure he would testify at trial.
Bernick showed an e-mail in which Marsden told Locke, “Keep the faith, Bob. We are working hard, and we’ll be successful in the end.” Bernick said it sounded an awful lot like Marsden was writing to a buddy, a teammate. Marsden responded that he was just trying to keep his witness on track, making sure he would still testify.
Bernick displayed a June 2006 letter in which McLean identified Locke as an “unindicted co-conspirator,” saying that by that point, there was no way Locke could be considered a target. After some back and forth, Marsden admitted that he had not immediately told Locke of his vulnerability to charges. Bernick said such an omission would lead Locke to believe he was immune, making him think he’d gotten a deal for agreeing to testify against Grace. Marsden disagreed, citing Locke’s decision to hire a criminal attorney to prepare for charges that might come against him. Locke was demoted late in his career with Grace, and after departing in 1998, he sued the company for “unfair treatment.”
Bernick showed an e-mail containing an Andrew Schneider article that had been forwarded by Locke to Marsden, opening with, “I can’t imagine how those guys [Grace executives] feel as the trial approaches. It’s going to be the longest 4 months of their lives.”
“How can you read that first sentence and think that this man has any shred of neutrality?” Bernick asked. With no answer, he probed Marsden to see if he thought Locke had a bent against Grace, which Marsden would not admit. ”He was not neutral insofar as Mr. Bettachi was concerned, though. Right?” Bernick asked. ”No, probably not,” Marsden answered.
Molloy interrupted, asking Bernick if he knew without a doubt who had written the statement in question, as the e-mail had apparently been sent and forwarded before Locke passed it along. Bernick said there was no way of knowing. So although the statement may not have been Locke’s, Marsden did agree that Locke was not neutral toward at least one of the defendants.
Bernick pressed Marsden hard throughout the interrogation. Twice, under pressure from Bernick to “just answer the question,” Marsden looked past Bernick to the prosecution’s table. ”What are you looking over there for, Mr. Marsden?” Bernick asked. ”Mr. McLean’s not going to help you.”
Just before lunch, Bernick focused his questions on whether Locke’s testimony just weeks ago had misled the jury. He recalled Locke’s response to why he decided not to sign to exchange his testimony for immunity from charges. ”I just didn’t think it was the right thing to do under the circumstances,” Locke said.
Bernick got Marsden to admit that the government needed Locke’s credibility for their case, and speculated that Locke’s refusal to sign the agreement would make him look far more credible. It would make him seem like he had nothing to hide because he was willing to take the risk of prosecution, Bernick said. ”Here, he sounds independent,” Bernick said.”He’s clean. He’s completely neutral. But that testimony was designed to and did mislead the jury to think that there was no special relationship [between Locke and the government legal team].”As Bernick seemed to prepare for another line of questioning, Molloy called for a midday recess.
-Alex Tenenbaum (posted 2:30 p.m.)
Posted: April 17th, 2009 under News.
Comments: 1 | [edit]
W.R. Grace Claims Violation of Due Process
W.R. Grace accuses prosecution of withholding exculpatory evidence and of having a biased witness testify. Based on these facts, W.R. Grace is claiming a violation of due process.
Following Brady v. Maryland, 373 U.S. 83, the prosecution is required to disclose evidence or information that would prove innocence or reduce the defendant’s sentence. The court held that suppression by the prosecution violates due process where it is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id.
W.R. Grace alleges that the prosecution withheld important information about Locke’s role in this case. It further alleges that the prosecution mislead the jury through Locke’s testimony because he was portrayed to be completely independent in the case when in reality he was providing incriminating information. It is alleged that Locke wanted to protect himself and also had personal issues against the corporation.
Hearing Exhibit 44 showed that Locke was given a letter which offered a grant of immunity for statements made. Locke never accepted the immunity, but the letter of immunity was not disclosed to defense.
In July of 2008, Locke was informed that Marsden wanted to review his personal calendars. Marsden testified that he reviewed 1991-1992 and 1976-1977 but did not instruct Locke whether or not to destroy them. Lock destroyed all his calendars in December of 2009.
Hearing Exhibit Number 70 said that the trial date was set for the Libby mine case. In a separate e-mail, it stated that this would be “the longest four months of their lives” but it was not established who wrote it.
Bernick wanted to establish that Locke was not a neutral witness and that he was biased. Bernick was able to get Marsden to agree that Locke was “part of the team” and had a “special relationship” with the prosecution.
Judge Molloy ordered a recess from noon to one o’clock. Bernick stated he would have about 30 minutes of questions left for Marsden.
- Noelle Harrison (April 17, 2009) (2:30 p.m.)
Posted: April 17th, 2009 under Law.
Comments: 1 | [edit]
Bernick: Locke was recruited to prosecution team
Defense attorney David Bernick was center stage this morning, even making a grand entrance although he missed his cue by 10 minutes. While he may have shown up late, his questioning and attitude indicated that he did not show up reluctant to argue that Robert Locke should not be allowed to continue his testimony.
The court room buzzed as it filled to capacity Friday morning for a special hearing without the jury. The hearing was to consider whether Locke had committed perjury when he took the witness stand earlier. A side issue that arose from that was whether the government had failed to disclose all the documents related to Locke that it was obliged to release.
Close to 80 people filled the galley and late-comers stood in the back. As the proposed start time came and went, people got restless. Bernick finally strode into the courtroom, all smiles and shook hands with all of the prosecution team. Judge Donald Molloy entered and admonished Bernick for being late, but Bernick appeared unfazed.
Bernick’s mission Friday morning was to cross-examine Robert Marsden, the agent from the EPA’s criminal division whose job it was to fact check information provided by key witness Robert Locke, and to keep Locke on track to testify for the prosecution.
Bernick worked to show that Marsden developed an inappropriately close relationship with Locke and that Locke was inapproriately involved in developing parts of the governments case.
Bernick underscored the chronology of the events and meetings involving Marsden and Locke. To provide motive for the prosecution’s questionable actions, Bernick wanted to assert the “desperation” of the prosecution team resulting from the timing of events and the EPA Clean Air Act statute of limitations. Much of the research and test findings were from 1999 and 2000.
Marsden joined the Grace criminal investigation in March, 2004. Because the statute of limitations ran out Feb. 3, 2005, Bernick claimed the EPA was running out of time to be able to include Marsden’s findings in its case. Bernick tried to get Marsden to say that he was aware of the desparate nature of the timing but Marsden said simply that he was just busy investigating the facts of the Libby case, spending 75 to 80 percent of his time on it.
Bernick kept emphasizing that the government needed a witness to testify to the conspiracy, that EPA investigators were desperate and time was running out. Marsden kept up his “just the facts,” responses. He said the government already had witnesses and were not desperate, naming Tom Hamilton, who hasn’t testified, and Steve Venuti. Bernick pointed out that they were both involved with Grace in the 1980s, the government needed someone from the ‘70s and Bernick claimed that’s why Locke was so important.
“Mr. Locke was a member of Grace’s senior management for a long time and deeply involved in the events of the conspiracy,” Bernick said. “He was also an individual that was hostile to Grace, isn’t that right?”
“Yes,” said Marsden.
“Very hostile.”
“Hostile.”
“Very hostile. He had a law suit against Grace because he felt wronged,” Bernick said.
“Yes,” said Marsden.
“Deeply wronged.”
“Wronged,” Mardsen said, in the type of interchange that characterized the morning’s session, with Bernick trying to add emphatic modifiers to Marsden’s acknowledgements.
Robert Locke did sue Grace for demoting him because of a disability and had taken his personal Grace documents to use in that case. After Marsden contacted Locke, Locke apparently notified Grace to let Grace know that this gave him some power, according to Bernick. But when Grace declared bankruptcy, that tied up Locke’s law suit. So Bernick appears to want to show that Locke wanted to be a witness as a way to get back at Grace.
Bernick displayed a number of emails between Locke, Mardsen and the government prosecutors, using the language in each one to assert that Locke was treated differently than other witnesses. Bernick inferred intent from various phrases, which Marsden would often refute. Bernick summarized the relationship between the government and Locke as one where each provided for the needs of the other. The government needed Locke’s 1970s testimony and Locke needed protection, needed to be a witness against Grace and needed to be part of the team, Bernick said. That, said Bernick, was what Locke got. Marsden said Locke never asked him for protection, that he thought Locke really just wanted the trial “to go away” and that Locke just wanted to cooperate.
Bernick scoffed as he said, “He (Locke) got a special letter, got special input and treatment, had a special relationship with you … special, special, special.”
Once Locke agreed to talk to the EPA through Marsden, he also started digging up financial information on fellow Grace manager, Robert Bettacchi.
“Locke hated Bettacchi, right?” Bernick said.
“He didn’t like him,” Marsden said.
“Is that all?” said Bernick, sarcasm or incredulity showing in his tone.
Marsden sent the information that Locke said amounted to insider trading to an IRS agent. The agent wrote to Marsden, saying he was uncomfortable with the tone of Locke’s email and warning that Locke’s attitude might make it hard for him if he ever takes the stand. Bernick used this email to claim that Locke was an advocate of the government and that was recognized by other people even if Marsden claimed not to have seen it. Another email showed that government attorney Kris McLean thought some of Locke’s information was good even if they didn’t use it so he didn’t want to shut Locke down. Later, Marsden sought Locke out to help explain Grace’s financial information, which Bernick said again shows that Locke was part of the team, he was not just a witness providing information.
Molloy called for a break.
–Laura L. Lundquist (posted 1:10 p.m.)
Posted: April 17th, 2009 under News.
Comments: 1 | [edit]
Locke’s personal interest in Grace lands government in hot water
The morning started with the late arrival of defense attorney Bernick and a stern warning from the judge regarding timeliness. Things quickly got underway in the absence of the jury.
The court moved on to review two notes taken by Mr. Goldsmith in preparation for Mr. Locke’s trial and examination. The notes were taken during a mock trial, and were discussing Locke’s presence and effectiveness during his testimony. After the government examined the comments, it argued that the notes represented Goldsmith’s mental impressions of the testimony, and that the statement had already been disclosed to Grace. The government objected to disclosure of the statement on the grounds of attorney work product, not Brady materials. At the close of the government’s work product argument, Judge Molloy said he anticipated that the comments were going to be admitted, but would still need to hear from Grace as to what use they were going serve.
The attention of the court then shifted to Mr. Peabody, Mr. Locke’s attorney. Mr. Peabody was present to represent Mr. Locke when he takes the stand later, and was granted the ability to interject objections only regarding privileged material and advice.
Mr. Bernick then called EPA criminal division agent Robert Marsden to the stand. Bernick took Marsden through a chronological review of his role in the Grace investigation, focusing exclusively on Marsden’s interactions with Locke.
Bernick started by carefully crafting the story of how the civil team of Region 8 had presented its materials to the criminal side to induce it to file charges against Grace. Bernick confronted Marsden with the title slide of that presentation, which depicted rows after rows of handmade crosses marking deceased Libby residents. While Marsden wouldn’t fully agree, Bernick’s point was that the theme of the effort Region 8 made to induce the government to prosecute criminal charges against Grace was the tragic loss of life at Libby.
Bernick next recalled the start of the investigation in the fall of 2004, which was up against severe time and resource constraints as it squared off against the threat of the five-year statute of limitations. By the end of 2004, the government had a “big problem” as it was unable to find a key Grace witness who would cooperate and testify to the conspiracy charges. Desperate to save its case, according to Bernick, the prosecution turned to Locke for the testimony it “absolutely needed.” Locke turned up at the right time, with the right knowledge, and the perfect resentment to take on Grace.
Bernick then outlined how Locke was furious with Grace for being passed over for years for positions he had wanted, and how he was demoted at the end of his career due to his disability. He talked about how Locke had left the last day of job with his personal files, sued Grace, and used the suit against Grace to threaten it with assisting the prosecution if the company refused to settle. Finally, Locke’s desire to act out against Grace was further underlined when his personal loathing of Bettacchi was illuminated.
As the testimony of Marsden went on, Bernick used the white board to demonstrate several reasons why Locke was compelled to testify against Grace. As someone who had known Locke for a long time, and had been closely involved with him, Marsden was cornered into speaking about Locke’s conduct and beliefs during the years following his initial interview in November 2004. Bernick argued Locke was motivated to protect himself against liability, to be part of the prosecution team, and to preserve his own lawsuit against Grace. Bernick argued Locke was “special, special, special” and that he had received treatment from the government that no other witness had received. Bernick framed Locke as someone who could not control himself, and as a person who had ultimately stepped beyond his role as informant and into the role of teammate and consultant.
To illustrate this point, Bernick walked Marsden through a chronology of emails that were sent during the investigation and filing of charges. In the “Timeline of Government’s Failure to Fulfill Its Constitutional Obligations,” Bernick demonstrated how Locke became increasingly involved with the case, reading up on Libby, offering interpretation of Grace financial records, and arguing legal theories and providing possible legal charges against Bettacchi. Despite being warned about Locke’s possible overinvolvement in the case personally, Marsden did not pull Locke down from his escalating stance against Grace. It remains to be seen what effect that decision will have on the government’s case.
– Kathryn Mazurek (10:35 a.m.)
Posted: April 17th, 2009 under Law.
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