April 13, 2009
Below are all the posts for Monday, April 13, 2009, in reverse chronological order, read from the bottom up.
The arguments about Robert Lockeâ€™s testimony and the governmentâ€™s failure to disclose evidence continued with David Bernick attempting to establish that both were part of a pattern which represented a â€śfundamental structural problem.â€ť
Although Judge Molloy characterized Lockeâ€™s testimony as an effort to â€śhijackâ€ť the governmentâ€™s case, Bernick rejected this characterization insisting that Locke was invited to do what he did. Bernick asserted that the government is also â€śsponsoring misleading testimonyâ€ť in other instances. Bernick went on to accuse the government of â€śimproper prosecutionâ€ť because of its private interactions with witnesses. He concluded that the government should not be protected because of such actions.
David Krakoff followed Bernick. His argument focused on what he perceived to be the governmentâ€™s violations of the Brady Doctrine. The Brady Doctrine requires that prosecutors disclose exculpatory material to the defendant, but it does not require prosecutors to supply the defendant with material when the defendant knows, or reasonably should have known, of the evidence and its exculpatory nature. Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that failure to produce exculpatory material to a defendant violates the Due Process Clause of the Fourteenth Amendment.
Krakoff insisted that the governmentâ€™s failure to produce the note which referenced the offer of immunity made to Locke, amounted to a violation of the Brady Doctrine. Krakoff asserted that absent a mistake by Locke during his testimony, the defense still would not know about the evidence.
Krakoff noted Rule 16 of the Federal Rules of Criminal Procedure which provides the basis for the type of evidence the government must disclose, but asserted that whatever protection Rule 16 provides it â€śdoes not trump Brady.â€ť Krakoff closed by accusing the government of applying its own definition of Brady.
Thomas Frongillo framed the dispute over the evidence as one which impacts both the due process rights of the defendants and the integrity of the United States criminal court system. He asked the court to serve as a referee and insure that there was fundamental fairness in the presentation of evidence. Frongillo made an emotional appeal to the court in an attempt to persuade Judge Molloy to order the government for further disclosure. He reiterated that the governmentâ€™s indictment had ended his client, Robert Bettacchiâ€™s, career and that the government was charging Bettachi with the â€śmost serious environmental criminal charge in the U.S. Code.â€ť Frongillo urged the court not to allow Bettachi to spend the rest of his life in prison based on what the defense is characterizing as tainted evidence.
Kris Mcleanâ€™s rebuttal was short and to the point. He asked Judge Molloy to look at the note. He told Judge Molloy that if he turned the page he could see where Agent Marsden explained that because Mr. Locke refused immunity, he could be prosecuted in the future.
McLean reminded the court that Mr. Locke is still on cross and whatever impact the note may have had, the remedy is to provide the materials that the court has ordered be turned over to the defendants. McLean reiterated that the government is in the process of complying with the order to turn over materials and deferred more discussion of Lockeâ€™s testimony until Friday.
Kevin Cassidyâ€™s time at the podium was even more brief. He apologized to the court and to the defendants for failing to turn over the note and personally took responsibility for the error.
In a moment of introspection Judge Molloy reflected on the trial now 5 years in the making. Molloy admitted that there were moments where â€śI can see that I didnâ€™t understand what I was being told.â€ť He recalled being told by Stephen Spivack that Locke could not be trusted to tell the truth. Molloy also recalled instances where the defense had asserted that it was not being given all of the evidence that should have been available during discovery. After these remarks court recessed until 8:30am tomorrow.
â€“Paul Nicol (posted 8:40 pm)
Prosecutorial Misconduct? Echoes heard in the Cross Examination of Mary Goldade and Discussions of Locke
David Bernick began his cross-examination of Mary Goldade, whom for 9 years has worked as a project chemist for the EPA, by attempting to expose Goldadeâ€™s bias. Bernick referenced that Goldade had been in the courtroom for the majority of the testimony. He then connected her with the prosecution team, showing that Goldadeâ€™s actions in the recent months were more about litigation than science.
Bernick presented several emails exchanged between Mrs. Mulberry (a Syracuse researcher) and Goldade. One email mentioned â€ścherry picking dataâ€ť for Dr. Aubrey Millerâ€™s testimony. The other email, defense exhibit 1386, had a â€śto-do listâ€ť which included the following: â€ś2(a) To ID statements good for the case, and to make the defense experts look like fools.â€ť Bernick continually used the phrases â€ścherry pickingâ€ť and â€ślook like fools,â€ť as Goldade attempted to state how the defense was taking these statements out of context.
After Bernick finished establishing Goldadeâ€™s bias, he focused on the prosecutionâ€™s bias. He presented numerous EPA demonstrative exhibits, which showed where asbestos had been detected by red dots. With each exhibit, Bernick asked Goldade why non-detected asbestos results, where in some areas the non-detective results were 90% of the results found, were not reflected in the EPA exhibits. Her general response was â€śit was a decision made by the prosecution team.â€ť
The cross examination reached an acme where Bernick revealed that the EPA database had listed the testing of the long shed as â€śindoor air.â€ť However, during Millerâ€™s testimony, references to the testing did not include any mention of â€śindoor air.â€ť Furthermore, the demonstrative exhibits concerning the testing of these areas also failed to mention indoor air. When Goldade was asked who made that decision, she responded, â€śKris McLean.â€ť
On redirect, where Kevin Cassidy had the chance to further question Goldade, the majority of his questions were objected to as leading or hearsay. At one point, after four straight objections and Judge Molloy asking him to ask a proper question, Kris McLean approached Cassidy to give him a question to ask. Cassidy proceeded to ask Goldade about her understanding of why McLean would omit indoor air from the demonstrative evidence, to which she replied, â€śbecause he felt it was a question of fact for the jury to determine.â€ť
After cross and redirect ended, the jury was excused and Bernick approached the podium. He argued about Robert Lockeâ€™s hard drive and the driveâ€™s metadata (meaning information which remains on the hard drive despite the user erasing the main file). According to Bernick, the hard drive would simply provide more information revealing Lockeâ€™s inconsistencies. Bernick mentioned how the defense finally received documents from the prosecution showing that Locke had been told by Agent Marsden he would not be prosecuted. This was contrary to what Locke had told the jury, of him â€śstanding as his own manâ€ť by turning down immunity.
It appears as though the defense may be using the defense strategies utilized in the Ted Stevens case. Charges against Ted Stevens were dismissed for prosecutorial misconduct when it was discovered that the prosecution failed to disclose certain information. Here, the defense in attempting to establish Goldade as â€śpart of the prosecution team,â€ť how she was involved in â€ścherry pickingâ€ť data, all concomitant with the possible Locke issues (which will be resolved in a deposition on Wednesday and a hearing on Friday), may be to bulwark such an argument to Judge Molloy. Whether Judge Molloy can be swayed by such an argument remains to be seen.
â€“Christopher Orman (posted 4:50 pm)
Unlike much of the witness testimony that has occurred during the Governmentâ€™s case-in-chief, today, both the Government and the defendants quickly moved from one witness to the next. This afternoon McLean quickly wrapped up the direct examination of former W.R. Grace employee Randy Geiger. Geiger was in charge of setting up a sampling plant and program to check for tremolite fiber releases. Geiger conducted tests on the high school and junior high running tracks in Libby to check for such releases.
After the termination of McLeanâ€™s direct examination, W.R. Grace defense attorney, Walter Lancaster, conducted a brief cross-examination of Geiger. Lancaster primarily questioned Geiger on what the Government told him in regard to evidentiary issues and the witness testimony of Paul Peronard. Judge Molloy brought Lancasterâ€™s line of questioning to a close indicating that a Rule 615 Motion had been granted which allows the exclusion of witnesses so that they may not hear the testimony of other witnesses. As a result of this motion the Government had no obligation to provide Geiger with Peronardâ€™s testimony and Lancaster should move on from the issue.
William Coates, defense attorney for William McCaig, continued the cross examination of Geiger but only asked him whether the wetness of the track would affect the amount of fiber release. Geiger indicated that he assumed the fiber release would be lessened if the track was wet. David Krakoff, defense attorney for Henry Eschenbach, briefly questioned Geiger about whether W.R. Grace conducted health surveys and chest exams of their employees to track their overall health. Geiger indicated that Grace did in fact take such measures.
Carolyn Kubota, defense attorney for Jack Wolter, finished the cross-examination of Geiger by asking about Wolterâ€™s aggressive goals of lowering fiber exposure. Geiger affirmatively answered that Wolter did make lower fiber exposure a priority, approved funding for lowering fiber exposure and ultimately drove fiber exposure levels down. McLeanâ€™s re-direct was short and to the point merely asking Geiger how many times he recalled Henry Eschenbach visiting the Libby plant site during his 14 years of employment. Geiger indicated he only recalled a few visits during his initial years of employment.
The two witnesses that were scheduled to follow Geiger were skipped due to stipulation between the parties. Judge Donald Molloy requested McLean instruct the jury on the meaning of this stipulation. McLean told the jury that both parties were stipulating that Grace donated mill tailings to Libby High School and Junior High for the surfacing of their tracks. As a result of this stipulation, the testimony the two scheduled witnesses would have provided is now unnecessary.
The Government then called Leroy Thom to the stand. Thom is a small business owner in Libby who worked for Grace from 1974-1992. The Governmentâ€™s attorney, Kevin Cassidy, questioned Thom about his duties at Grace during 1991 and 1992, considering the mine was shut down in 1990. Thom explained that he was involved in the tearing down of the mill. Cassidy asked Thom if he recalled seeing vermiculate and Thom replied, â€śYes, lots.â€ť Cassidy then requested Thom describe what he saw, but the defense quickly objected citing relevance and cumulative. Judge Molloy sustained the objection. Cassidy proceeded to question Thom about whether vermiculite was available for the people of Libby to take home and put in their gardens and whether he observed other Grace workers covered in dust. Defense counsel objected to both lines of questioning once again citing relevance and cumulative, but Judge Molloy overruled both objections and Thom answered both series of questions in the affirmative. The only cross-examination that was conducted on Thom was when Coates asked him if Bill McCaig ever took vermiculite home to put in his garden. Thom said he did not know and was released from the stand.
The Government then called Francis Landis, a retired Grace employee, as their next witness. Landis was a member of the crew in charge of tearing down the screening plant. On direct examination Landis was asked about his observations of wind blowing dust around. The defense attempted to strike this portion of the testimony but Judge Molloy overruled. On cross-examination Walter Lancaster inquired as to whether Landis recalled wearing any sort of fiber monitor during the demolition. Initially Landis expressed that he did not recall wearing one, but after the defense provided a document suggesting otherwise Landis said that although he doesnâ€™t remember, it is possible that he did wear such a monitor at some point during demolition.
Landis and the jury were dismissed for the day and Judge Molloy called for a brief recess. Before leaving the courtroom, Judge Molloy suggested that McLean and David Bernick, attorney for W.R. Grace, discuss and resolve their witness issues. According to Judge Molloy, if the parties fail to resolve their issues then he will, however, this is not an invitation to not resolve things.
-Shannon Foley (5:00 p.m.)
Â Â The focus of the governmentâ€™s questions turned to tests of Libby air samples and the mineâ€™s cleanup process this afternoon as former Grace employees took the witness stand.
Mine workers and laboratory analysts comprised Monday afternoonâ€™s court action, with special attention devoted to the destruction of the old dry mill in 1991 and tests performed on Libbyâ€™s high school track.
An environmental engineer in charge of the dust sampling operation, Randy Geiger was responsible for the tests of the track which consisted of vermiculite materials donated by W.R. Grace.Â In 1981 Geiger, along with his wife, attempted to â€śsimulate activity on the running trackâ€ť by running and â€śkicking up the ground.â€ť
â€śI can remember putting on my track shoes, from my high school days, and we tried to simulate two runners,â€ť Geiger said.
The test results were then sent to a lab technician in Libby.Â This lab, according to Geiger, was a â€śplace that we could actually do the analysis, calibrate our pumps, and it was a clean environment.â€ťÂ Geiger said the data was â€śused to potentially make improvements in the future.â€ť
In between Geigerâ€™s testimony Judge Donald Molloy stopped court to clarify what the witnessâ€™ statements meant to the jury.
â€śThis evidence only goes to the question of whether or not there may have been a level of misrepresentation,â€ť Molloy said.Â â€śThis is not evidence of a release that would endanger.â€ť
On cross examination defense attorney David Krakoff asked about his clientâ€™s, Henry Eschenbach, involvement with the tests.Â Geiger said that Eschenbach helped get the lab started, as it was the first one Geiger managed.Â Krakoff said that asbestos levels in the air at the mine were dropping already by 1976, even before Geiger started working there.Â Geiger confirmed the validity of documents dating from a Eschenbach visit to the mine that stated the levels were continuing to decrease.
Leroy Thom, a former Grace mine worker, was hired in 1974.Â He worked in the loan department, which meant he was loaned out to whatever mine department needed help.Â In 1990 he was a foreman in the dry millâ€™s destruction.
â€śI had a crew that worked with me in tearing down the old mill.Â We would do all the crane work,â€ť Thom said.
He was also involved in taking down the screening plant, where his crew â€śremoved all equipment out of the building, then off the top of the silos where the ore was stored.â€ť
Thom testified he saw people pick up vermiculite at the screening plant down by the river, then take it to places such as their lawns and gardens.Â The prosecution questioned Thom on whether or not he saw workers leaving the job site with dust on their clothes.
â€śOh yeah, all the time, every day.Â All the guys that worked there had dust on their clothes,â€ťÂ Thom said.
Another longtime mine employee, Francis Landis, was called to the stand.Â Landis worked for Grace from 1969 until the mine closed.Â He drove trucks, ran the train, and â€śwhatever else had to be done on a daily basis.â€ť
Grace defense attorney Walter Lancaster kept his questions for Landis short, only delving into exposure monitors, available at the mine to test for fiber exposure in its workers. Â Landis did not recall taking one, but based on a report from the company stating he did in fact receive an exam, agreed he must have.
As issues related to the upcoming witnesses and the governmentâ€™s schedule for bringing them to the witness stand came up, Molloy called an afternoon recess, hoping to bring the schedule into clear focus when court resumed.
â€“Josh Benham (posted 3:50)
With EPA chemist Mary Goldade on the stand, defense attorney David Bernick continued to question how complete various government exhibits and witness testimony was today. In response to nearly every objection from the prosecution, Bernick replied, â€śIt goes to bias.â€ť
Goldade, who is both a government witness and a technical expert advising the prosecution on matters of scientific testing, helped the prosecution prepare a number of exhibits for the case before the trial began.
Bernick reviewed a litany of government exhibits he claimed had been created by picking and choosing data from EPA reports, and emails to or from Goldade indicating that she had provided advice on litigation strategy (as opposed to purely technical or scientific analysis), and describing a certain data-set as â€ścherry-picked samples.â€ťÂ He repeatedly characterized Goldade as having worked â€śhand-in-gloveâ€ť with the prosecution in their preparation for this trial, calling into question her independence and reliability as a witness.
Bernick showed the court at least four examples of government exhibits in which aerial photos of Libby were overlaid with red dots indicating â€śdetects,â€ť or places where asbestos was detected in soil samples.Â He then displayed the same photos with green dots added to show â€śnon-detects,â€ť or samples that came back negative for asbestos.
In several cases, including aerial-photos of all three Libby schools, more than 80 percent of samples were non-detects, and none of these negative samples made it into the map presented by the prosecution.Â Then, Bernick displayed another government exhibit â€” a photo of the entire town of Libby in which some non-detects were shown, but others were omitted.
On redirect, government attorney Kevin Cassidy got off to a slow start, struggling to overcome repeated successful objections from the defense.Â Though he attempted to go through each exhibit that had been called up by Bernick during the cross-examination, his efforts to question Goldade were mostly thwarted, and Goldade was permitted to answer only a few questions, most of them with only a â€śYesâ€ť or a â€śNo.â€ť
After the redirect, Judge Donald Molloy dismissed the jury, and began a discussion of Robert Lockeâ€™s continued involvement in the trial.
Locke started working for Grace as director of marketing for building products in 1986, and advanced to global vice president for the construction division in 1992. He left the company in 1998 and has since filed suit against Grace for â€śunfair treatment.â€ť He took the witness stand for a week in late March, but his testimony came under scrutiny after he recalled details of a conversation he had previously claimed, under oath, never took place. A motion was made to strike Lockeâ€™s testimony, but Molloy has so far allowed it to stand. The question of whether Locke committed perjury remains open.
Statements made by Molloy and Bernick indicate that the defense will have the opportunity to conduct a major inquiry into the Locke issue and the â€śextent of the taint in this case,â€ť on Friday.Â The hard-drive from Lockeâ€™s personal computer may be subjected to forensic analysis to determine whether Locke deleted any correspondence germane to the case, and Locke himself may well be called back to the stand.Â Court is in recess until 1:15 p.m.
â€“Daniel Doherty (posted 1:35 p.m.)
Â After lead counsel met in chambers first thing this morning, the trial began at about 9:15 a.m with the governmentâ€™s next witness, Mary Goldade.Â Â Ms. Goldade is a Chemist with the United States Environmental Protection Agency, Region 8, based in Denver, Colorado.Â She has been actively involved in the data collection, sampling, analysis, and reporting of the Libby asbestos since 2000.Â
United States attorney Kevin Cassidy conducted the direct examination, beginning with an extensive review of Ms. Goldadeâ€™s education background, trainings, roles and responsibilities, as well as descriptions of the scientific processes and methods used to gather data that is reliable. Â Â Ms. Goldade described polarized light microscopy (PLM) and scanning electron microscopy (SEM), both methods to analyze asbestos samples.Â She described her duties, which included â€ślayers of auditsâ€ť to ensure reliability, quality assurance, and quality control.Â She admitted that errors did occur and further explained the â€ścorrective actionsâ€ť taken to remedy the errors.Â Â There were â€śtens of thousandsâ€ť of samples taken during her nine years at the Libby site.Â
The government then showed several exhibits, all aerial photographs with red dots showing the locations where contaminated soil samples were reported by the EPAâ€™s data collection.Â The government then handed Ms. Goldade a thick binder, identified as Exhibit 715A, which included all the data and reports underlying the aerial photograph exhibits.Â When the government asked Ms. Goldade to testify to the contents of the thick binder of data, the defense objected on seven grounds, all of which were sustained.Â This abruptly ended the governmentâ€™s direct examination of Ms. Goldade, and the defense began its cross examination.Â
The defenseâ€™s seven sustained objections included 1) lack of personal knowledge, 2) violation of the Confrontation Clause of the constitution, 3) failure to meet standards for expert testimony, 4) failure to prove chain of custody, 5) irrelevant, 6) unfair prejudice, and 7) hearsay.
Exhibit 715A collected the underlying data for Exhibits 666, 672, 677, and 682 (showing W.R. Graceâ€™s operation sites in Libby), as well as Exhibits 693 (Libby High School), 698 (Libby Middle School), 705 (Plummer Elementary ice skating rink), 708 (Rainy Creek road), 714 (overview of Libby with red dots indicating asbestos detected), 715 (Overview with green â€śnon-detectâ€ť samples).Â These exhibits can be viewed at http://www.mtd.uscourts.gov/links.htm by following the â€śW.R. Grace Audio Files and Exhibitsâ€ť link, but the scanned copies are of poor quality.Â See, for example, Govtâ€™s 715: Overview of Libby, found at the entry for February 27, 2009.Â
â€“ Nick Lofing (11:50 a.m.)
Since 1999, the Environmental Protection Agency has contracted about half a dozen laboratories to do soil sampling in Libby. Mary Goldade, a senior scientist for the EPA, said on the witness stand Monday that together the labs have analyzedÂ â€ťtens of thousands of samples.â€ť
Goldade, EPA chemist for Region 8, which includes Montana,Â took the stand as a witness for the prosecution.
Goldade hasÂ workedÂ toÂ oversee sampling done by laboratories in Libby since 2000, providing technical support for data analysis and collection. She briefly described two different microscopes usedÂ to test soil for asbestos contamination, including light microscopes and scanning electron microscopes (SEM.) Light microscopesÂ magnify samples to 1,500 times what the human eye can see, she said.
In an earlier interview, Dr.Willard O. Granath Jr., director of the University of Montanaâ€™s Electron Microscope Facility and professor of microbiology at UM, explained that scanning electron microscopes rapidly scan the surface of a sample with electrons similar to the way a â€śflashlightâ€ť would, allowing researchers to identify asbestos by its surface shape and size. Light microscopes can be useful for bulk sampling, enabling researchers to identify asbestos fibers, although itÂ doesnâ€™t allow them toÂ identify what type of asbestos is present, said Granath, who is not involved in the trial.
Back in court, the jury was shown a series of government exhibits. They were aerial photos of sites in Libby with red dots indicating soil sampling locations. A binder with a collection of soil sample data was also presented to Goldade by the prosecution, and she confirmed that it was â€śthe Libby Two databaseâ€ť where EPA collects all soil sample analysis data given to them by their various laboratories contracted to do testing.
â€“ Carmen George (10:59 a.m)