UM Grace Case

In a jury trial, the attorneys are allowed two opportunities to speak directly to the seated jury, during the opening and closing arguments. Closing arguments are generally limited to reviewing the evidence admitted at trial, go over jury instructions, or emphasize important points in the case which may have been missed or forgotten. It is uncommon for an opposing party to object during an opening or closing statement, though a party might do so for egregious statements, or ask the Judge for a limiting instruction.

Mr. Frongillo on the attack: “You can’t trust the government!”

Mr. Frongillo, representing defendant Robert Bettacchi, as well as the attorneys representing the remaining defendants, were constrained to 40 minutes for closing remarks. Mr. Frongillo was visibly rushed in his presentation, for which he employed two large poster boards as well as a timeline and evidence via the computer monitors. The poster boards, which he touched on briefly by asking the jury to “write these numbers down,” apparently were the exhibits entered by the government that were offset by those entered by the defense for Counts 3 & 4.

Mr. Frongillo had many harsh criticisms of the government peppered throughout his statement, ranging from alleging the government was out to “win at all cost” to accusing them of “unfair play and deception.” He also attacked the Parkers, calling them liars, and stating that the case should have stayed a civil suit between them and Grace, and that people shouldn’t go to jail based on “perjured testimony.” Mrs. Parker left the courtroom shortly after this statement. He also had some choice words for the EPA, stating that if a crime was committed, it was on their watch, and showed a public press response from the EPA to Libby in 2000 stating there was no immediate health risk requiring them to move families or stop workers.

Due to the time constraints, the opportunity for Mr. Frongillo to review each document was impossible, so he limited his argument to show Mr. Bettacchi was simply doing his job for Grace, and didn’t willfully cause danger. As to the conspiracy charge, Mr. Frongillo pointed to printed material shipped with their products that warned customers of asbestos danger. Mr. Frongillo ended by asking the jury for a swift verdict that Mr. Bettacchi be found not guilty.

Mr. Krakoff blames case as a “dereliction of duty by the government!”

Mr. Krakoff, representing defendant Eschenbach , also attacked the government as trying to “pull the wool over your eyes.” He then reviewed some of the evidence in light of Mr. Eschenbach’s job as a health and safety resource for CPD. He argued that the health monitoring showed Grace that in 1977 things “had to change” and that a plan was needed. He claimed that Dr. McMahon stated an epidemiology study was not right at that time due to the latency period, but instead it was better to track workers to identify any changes, which Mr. Eschenbach did from 1977-86. He also stated there was only one meeting between the defendant and NIOSH in which Mr. Eschenbach said the deaths in Libby were due to cancer. “He was all about learning and reporting to management and disclosing to the government” according to Mr. Krakoff.

The attorney then pointed to the government and asked “In the face of clear evidence- what does McLean come up with now?” He then moved onto the conspiracy charge by attacking the government by stating it was a “flagrant abuse” to say Grace opposed the NIOSH study, instead arguing that Grace disagreed with the technique NIOSH would use. As to the element of Knowing Endangerment, Mr. Krakoff argued that there was no evidence that Mr. Eschenbach knew there was any imminent danger to the people of Libby, though he knew it posed a serious health risk to the workers. Mr. Krakoff then stated that there was “no way” Mr. Eschenbach would endanger the families because it would “Violate every principal for which he stands.” Mr. Krakoff ended his argument by literally pointing at the prosecution and accusing them of manipulating the facts, distorting the truth, violating the Constitution, and finally by stating “this entire case is wrong.”

Ms. Kubota: Jack Wolter as Dr. Jekyll and Mr. Hyde?

Ms. Kubota, representing defendant Jack Wolter, concluded the defense closing arguments. Her theme was quickly apparent – “this case is fiction” she stated, after likening the government’s portrayal of her client as a Dr. Jekyll/Mr. Hyde persona, complete with a movie poster. Rather than robustly hammering away at the government, Ms. Kubota remained congenial and peppered her statement with quaint statements, though her argument in some ways tested the boundaries of what a closing statement is generally constrained to. She spoke of events that had not been uncovered during the trial, such as Mr.Wolter’s purchase of the property next to the Parkers where he at one point intended to build a home, as well as voicing feelings the defendant had, who had not taken the stand. (It should be noted that none of the defendants chose to take the stand, so any reference made by the attorneys as to their client’s feelings or thoughts was never evidenced on the record.)

Ms. Kubota claimed that Mr. Wolter was a “doer” and that was why he was copied on many of the incriminating memos from Grace. For the knowledge and intent requirement, she stated “every time I read [the instructions] I want to like take an aspirin and lay down on the couch” which drew a few smiles from the exhausted jury. She then argued that there was a lack of proof that Mr. Wolter knew it was a danger, but rather that Mr. Wolter believed it was safe. Finally she argued the government case fails because they had to prove an active involvement in his participation in the sale of the property, the only evidence of which was Mr. Wolter being cc’d on a letter from Stringer to Libby in the export plant sale. She ended by stating powerfully that “a tragedy is different thing than a crime, and the government has failed to prove Jack has committed any crime.”

Hannah Stone, posted 9:30 pm

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.)

Defense attorney David Bernick starting his closing argument in court this afternoon by reiterating his theme of the case: “There was no big secret.”  Replete with a big white board and multiple charts, Bernick argued the government presented no evidence that proved any of the charges.

Bernick also argued this case was not about criminal charges, it was about the prosecution taking the script written by the EPA and then using that for the counts in the Superseding Indictment.  Bernick argued the imminent hazard warning became the criminal endangerment charges.  Next, the 104(e) responses and the mine access negotiations became the obstruction of justice charges.

Bernick presented specific jury instructions for argument as well.  Jury instruction # 2 said that if there is an innocent explanation for the defendant’s conduct, as well an explanation that the defendant was engaged in wrongdoing, the government has the burden to prove they engaged in wrongdoing beyond a reasonable doubt.  Bernick presented this while saying the government could not prove the wrongdoing, therefore, the innocent behavior explanation is the one the jury should believe.

Another jury instruction Bernick used was jury instruction # 50.  This instructed the jury to look at the intent in the obstruction of justice charge. The instruction requires a corrupt intent.  Bernick argued there was such intent with the defendants.  He painted the mine access as a disagreement that became more heated and hostile as the clean up progressed. Furthermore, he argued that the EPA was asking questions about things when the agency already had the answers.  Bernick argued this evidence does not fit a corrupt intent, because the EPA was on a witchhunt.

Bernick asked the court for a brief break, as he had been talking for over an hour at this point.  Judge Molloy called for a 10 minute recess, after which Bernick would resume his closing.

– Maggie Braun (posted at 4:00 pm)

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)

The day began promptly at 8:00 a.m., with counsel discussing the jury instructions. As the instructions were provided, each party stated its approval or its objections.  Parties must object to preserve their right to appeal. Consistent with its objections throughout the trial, the defense objected to: (1) the definition of asbestos; and (2) the lack of a separate instruction for “willfully” which Judge Molloy inserted into the knowingly language of the Clean Air Act (CAA) violations. The prosecution, also consistent with its stance throughout the trial, made the following objections: (1) the EPA’s conclusion under CERCLA of “endangerment” should be used by the jury for a CAA determination on endangerment; and (2) the definition of ambient air.

Then counsel discussed the length of time for their respective closing arguments. Molloy granted the prosecution three hours and fifteen minutes to present its closing. The defense was granted four hours. Based on statements made to Molloy, McLean will present an hour and a half closing specifically addressing the conspiracy count. The rest of the time will be for Kevin Cassidy to argue the remaining seven counts (CAA and obstruction). David Bernick will be the first to close for the defense, taking between one hour and fifteen minutes and two hours. Each of the remaining attorneys — Carolyn Kubota, Thomas Frongillo, and David Krakoff — will be allowed forty minutes.

After counsel concluded the closing logistics, the jurors returned and Judge Molloy read them the jury instructions. Taking approximately 55 minutes, Molloy articulated the eight counts against the defendants, the burden of proof, and the jury’s responsibility to weigh both direct and circumstantial evidence. Given the complexity of the case, the instructions were extremely clear. They framed the issues with such detail that when released, they will provide a tremendous resource for future Clean Air Act litigation.

After the jury was instructed, McLean commenced his closing argument. He began by thanking the jurors for their service.

Next, McLean apologized to the jury for the Brady and Giglio violations with Robert Locke, stating, “I blame myself for that, and for the results of my mistake.”

He then explained that this case is one about “right and wrong —  a simple case.” He asked the jury to use its “common sense knowledge” when deliberating on the evidence in this case, tand claimed, “If you do that, I expect you to return a guilty verdict against Grace.”

McLean then reestablished the theme of his opening argument almost three months ago: “the secret.” McLean repeatedly used the word “secret” as he discussed tremolite, cost-benefit analysis, and the conduct of Grace. According to McLean, the secret lies in the documents.

“The documents tell the story here. Memories fade, people forget things. But the documents don’t. The documents show Grace was in the business of money… and they got out of the business to protect their secret,” stated McLean in his constant, unwavering tone.

– Christopher Orman (posted 11:15 a.m.)