UM Grace Case

As of 10:00 this morning the jury was not present in the courtroom and defense attorneys were questioning government witness Paul Peronard to determine the extent of testimony he would be allowed to provide. Defense objected to Peronard testifying on matters of toxicology, epidemiology, mineralogy or introducing summary reports of scientific data from the Libby cleanup effort. The two reports contained language to the effect of “actual or threatened releases … present imminent and substantial endangerment to public health…” and the defense sought to keep those words from being heard by the jury. Defense attorneys also questioned Peronard’s credibility as an expert witness.

After two hours of attorneys presenting their arguments to Molloy and more questioning of Peronard, Judge Molloy read his decision to the courtroom. Molloy found that Peronard is an expert in on-scene coordination, assessing immediate environmental concerns and developing an approach for addressing situations, but he is not an expert on risk assessment, toxicology, epidemiology or mineralogy. Therefore, Peronard will not be permitted to provide opinion testimony as to risk assessment, toxicology, epidemiology or mineralogy and if the government wants to submit evidence on these topics, they will have to get an expert in each of those fields to testify.

Molloy went on to rule that “we do not put in evidence by summary witnesses” and therefore Exhibit #623a, a report written by Peronard, would not be admitted as evidence and would not be shown to the jury. The prosecution could use it as past recollection recorded, which under Federal Rules of Evidence 612 allows a witness to use a writing which he himself prepared at the time of the occurrence in order to replace current memory of an event. Writings used by a witness in place of current memory can be read out loud to the jury, but do not get admitted as evidence and do not go into the court record or into the jury room during deliberations. Judge Molloy made a point to say that he found Peronard quite credible, putting to rest defense objections as to the credibility of the witness. Molloy called a break for lunch at 12:10pm.

- Janet Harrison