April 18, 2009
Below is a summary of Week 8 and an explanation of the Rule 29 motion for acquitta, both filed Saturday, April 18, 2009
Threatening the trial: a grant of a motion to dismiss for prosecutorial misconduct or a Rule 29 motion for acquittal could end these proceedings.
As indicated by W.R. Grace’s attorney David Bernick in court on Friday, April 17, the defense will soon be filing motions for dismissal and acquittal. Either motion, if granted, could end this trial. The motions and briefs on the issues can be expected within the next few days. The government has indicated it will rest its case-in-chief by Tuesday, April 21.
The defendants moved for a Rule 29 judgment of acquittal in February, following opening statements. For more on Rule 29 motions and the defendants’ arguments, see Rule 29 Motions.
~ by Nick Lofing (4:26 p.m., Saturday, April 18th)
The defense played offense during a special hearing Friday as W.R. Grace & Co. attorneys sought to prove the government’s case to be riddled with problems of perjury and prosecutorial misconduct. Judge Donald Molloy yet to rule on the defense’s allegations. If either of them are found to be true, the case could be acquitted or even dismissed.
On Monday afternoon, after the jury was released, Grace lawyers accused prosecutors of recruiting and manipulating witnesses to the point of prosecutorial misconduct. At the center of the allegations lies the testimony of Robert Locke, the former global vice president of Grace’s construction products who took to the stand for several days in late March.
At that time, Locke testified that prosecutors had offered him immunity from charges in exchange for his testimony. He decided not to sign the papers, saying that it just didn’t feel like “the right thing to do.” David Bernick and other defense lawyers have taken issue with this reasoning. The fact that Locke gained no legal protection for testifying, a point prosecutors made with Locke on the stand, may have lent him more credibility with the jury.
During trial, Locke said that Grace executive Robert Bettacchi, when asked if Grace should sell its asbestos-contaminated properties in Libby, said callously, “Buyer beware.” However, in 2005, Locke testified before a grand jury that he had never discussed property sales with Bettacchi.
Speaking to the apparent contradiction last week, Judge Donald Molloy said, “He’s as close as I would ever want to see to perjury.” The judge said he would rule later on whether Locke perjured himself — a ruling that he has yet to make.
On Monday, Molloy went a step further, characterizing Locke’s testimony as an effort to “hijack” the government’s case.
Bernick jumped on the statement, saying “Mr. Locke did not hijack this case without assistance. The government embraced Mr. Locke.” He then broadened the scope of his accusation by saying “We don’t know how much of this case is affected. We can’t adopt blinders and say that since all we know about is Mr. Locke, then that is all there is.” He claimed other witnesses had been courted and manipulated by prosecutors.
Two other defense lawyers asked Molloy to require the government to turn over trial preparation documents, and prosecuting attorney Kris McLean promised to show the court the whole picture during Friday’s special hearing.
The Grace trial seemed to settle into a more normal rhythm through the middle of the week as prosecutors continued to present their case, calling a string of witnesses to the stand including former O.M. Scott and NIOSH employees and a few folks involved in the property deals that got Grace out of Libby in the early ’90s.
On Wednesday, McLean said the government had decided to forgo the testimony of Dr. Chris Weis, the EPA senior toxicologist and science advisor who began working on Libby’s tremolite problem in 1999. Weis’ testimony was expected to span a week or more, so cutting him from the lineup significantly shortened the prosecution’s case. McLean said the government would wrap up its case this coming Tuesday.
With the jury absent Friday, the defense and prosecutors sparred over EPA criminal agent Robert Marsden’s pretrial preparations of Locke. Marsden, who testified from the stand, is part of the government’s legal team and was responsible for keeping Locke on track to serve as a witness.
Bernick said that while Locke was presented to the jury as an independent witness, a co-conspirator who was still at risk of being charged, he was actually working closely with the prosecution and was not at risk at all. In a few e-mails that Bernick displayed to the court, Locke offered legal advice and arguments to the prosecution team. Marsden said he did not think of Locke as a member of the prosecution team, and that his legal advice was not considered.
Locke was demoted late in his career with Grace due to a disability. When he left the company in 1998, he took personal records with him, which Bernick claimed he planned to use as evidence in a civil suit he was bringing against the company for “unfair treatment.” When Grace filed for bankruptcy protection, Locke saw his chance of settling the score slip away, Bernick said. That was, until government prosecutors asked him to testify against his former employer. Bernick postulated that Locke’s willingness to comply was rooted in his resentment of Grace and his longing for revenge. Marsden did admit that Locke was “hostile” toward Grace.
Bernick said that by the end of 2004 as the five-year statute of limitations approached, the government had a “big problem” with being unable to find a key Grace witness who would cooperate and testify to the conspiracy charges. Desperate to save its case, Bernick said, the prosecution turned to Locke for the testimony it “absolutely needed.” Marsden disagreed with this theory, saying that the prosecutors were simply doing what they could to build their case.
Locke and the government met each other’s needs, Bernick said, and formed a special relationship in which Locke acted more as an advocate than a factual witness. Marsden never agreed to call the relationship “special,” preferring the term, “unique,” instead.
In closing, Bernick and each of the five executives’ attorneys recommended dismissing the case.
“We’ve seen perjury in this case,” Bernick said. “We’ve seen subordination in this case,” The prosecution believes it can work with witnesses, turn them into advocates.”
Prosecuting attorney Timothy Cavan acknowledged that there had been problems with the government’s case, but argued for Locke’s return to the stand for further examination.
“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?” He seemed to think the mistakes were curable.
The defense argued that the prosecution’s misconduct demanded action from the Department of Justice. And although he issued nothing in the way of a ruling, Judge Molloy seemed to agree.
Molloy said 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 a “liar,” 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.
He said he would consider the arguments on perjury and prosecutorial misconduct over the weekend.
-Alex Tenenbaum (2:00 a.m.)