Feb. 19, 2009
Postings from Day 1: Feb. 19, in reverse chronological order
After kicking things off early this morning in the case of U.S. v. WR Grace, Judge Donald Molloy continued the voir dire process well into the early evening – questioning the tired and yawning pool of potential jurors about a number of specific topics.
Following a nearly one-hour recess to meet with counsel, Molloy returned to the court room around 4 p.m. and dismissed six jurors to behind the rail, bringing forward six more from the pool.
Molloy then proceeded, asking each of the six jurors the routine series of questions heard throughout the day regarding everything from job history to whether or not each has read or followed the news of the case, specifically the recent series of articles published in the Missoulian.
Many admitted to having followed the media coverage but promised to do their best at remaining objective. Throughout the afternoon, many jurors, if not all, continued to voice concerns about the low stipend each would receive if selected for jury duty.
”Forty dollars a day doesn’t pay a lot of bills,” one juror told Molloy. Molloy agreed. “I understand that and it is something that needs to be addressed by the Congress,” Molloy said. “I wish I could get it up to where it belongs.”
Juror 393, a self-proclaimed environmentalist who once belonged to the Sierra Club, spoke clearly about his animosity toward Grace case. He told Molloy about a co-worker of his whose father worked in the Libby mine and died of lung cancer. After a short meeting with counsel, Molloy told juror 393 to have a seat behind the rail, bringing up another for questioning.
Molloy ended the nine-hour day by explaining to the jurors the right of peremptory challenges, scheduled to take place tomorrow.
”We will have the peremptories exercised at that time and then chose the (3) alternate jurors,” he said. Molloy finished by reminding the jurors not to discuss anything about the case outside the courtroom. The court will reconvene at 9 a.m. Friday.
– Chris D’Angelo
Judge Molloy called court back to session at 3:00 p.m. following a recess in chambers with one attorney from each party. Questions were then presented to specific members of the jury pool based on concerns voiced by the attorneys. After only a few questions, Molloy called another recess and again called counsel into his chambers. Court reconvened at about 4:00 p.m. and juror questioning continued to revolve around the topics of possible biases, media influence, and jurors’ ability to decide the case based solely on the evidence presented in the courtroom.
Several jurors stated that being on the jury would present them with a large financial burden. At one point, Judge Molloy opined that the $40.00 per day stipend for jurors was an antiquated amount that congress should increase. One juror said that a co-worker’s father had worked in Libby and died of asbestos related illness. Another prospective juror stated that he was an environmentalist and had, “animosity towards mining companies.” The vast majority of prospective jurors said that they thought they could be objective fact finders.
At 4:45 p.m., Judge Molloy called a brief sidebar with one attorney from each party. Afterwards, members of the jury pool were shuffled around. Molloy then instructed the 28 jurors left ahead of the bar that they were to return to court at 9:00 a.m. He also instructed them not to discuss the case with anyone. He mentioned before adjourning for the evening that the next day would begin with each party exercising their preemptory challenges. He informed the jury pool that these challenges could be exercised for any reason other than religion, gender or race. Judge Molloy adjourned the court for the evening at 5:00 p.m.
- Bert Certain
Judge Molloy’s questions continued in the early afternoon in much the same fashion as in the morning. He made sure to focus on each potential juror’s exposure to Grace trial-related media (especially in the past few days), as well as other questions raised by the juror questionnaires. As he questioned them, he worked through various pool member concerns about sitting for long periods, absences from work, etc. It struck me that many lawyers and law professors seem to have tried and true strategies to select a favorable jury, but most of today’s questions seemed to focus on educating jurors who wanted to avoid jury duty about their duties, as well as mitigating any potential media-inspired bias. In this student’s humble opinion, having the judge (as opposed to the lawyers) ask the questions saves time and trouble. I also noticed that many Montanans in the pool made points to discuss the role and duty of a citizen as a juror, and the societal benefits (and lack of any bias) regarding the fifth amendment right not to testify.
I also noticed how skillfully Judge Molloy began educating the jury on the law he would provide, the facts they would decide, and the procedural and legal issues they would see during trial. He conversed with them about their questionnaires, their concerns, and their statements, nicely interspersing that colloquy with comments or questions that foreshadowed the evidence and law to come.
After he finished with the panel, he asked the pool members about their past dealings with the criminal justice system, following up with each member who had criminal issues in either their individual past, or in the past of their immediate family members. He then took a short break with lead counsel from each party to discuss any questions he had missed. They returned after ten minutes to mop up the questions he missed with some of the jurors, and I regrettably had to leave.
- Mark Lancaster
Judge Donald Molloy continued questioning potential jurors this afternoon. Eight jurors were questioned from 1:30 to 3:00. Many voiced their concerns about the length of the trial and how it would impede on personal matters. One juror got so personal he said, “I don’t really know my situation anymore,” about whether he could arrange to have his daughter picked up after school because “my wife is talking about leaving me.” Others brought up the pay issue. Many jobs, in fact most, don’t pay when an employee is serving on a jury. One juror said she felt honored to be a part of the justice system in this way, but getting by on $40 a day would be impossible.
Molloy seems genuinely interested in the jobs and lives of the jury pool. He seems to have a method of questioning that might not appear directly relevant on a surface level. Molloy probably spent the longest time questioning a juror candidate who is a UM research scientist at the Flathead Lake Biological Station. Molloy concentrated his questions on how the potential juror approached scientific findings in his research and the method by which he drew conclusions. This, theoretically, could affect how the potential juror would view scientific studies presented in the trial.
Molloy finished up the time block by asking whether any of the prospective jurors had any immediate family involved with the criminal justice system. Several did but, after explaining their situations without going into great deal, said that would not affect how they heard or decided the case. Right before 3 p.m., Molloy called for a break and a meeting with lead attorneys to discuss the questioning. When Molloy returned, he finished up his questions about immediate family members involved with the criminal justice system.
In his attempt to select an objective jury, Judge Molloy questioned each potential juror about his or her ability to be fair and impartial. Since the jury pool extends throughout Western Montana, many potential jurors are related to residents of Libby, have some connection to the town, or even reside in Libby. Although each juror most likely wishes or even assumes he or she could objectively participate as a juror, many will likely be removed for cause. For example, one likely removal will be a journalist for Western News, situated in Libby. When questioned about his ability to be fair and impartial, he replied that he simply could not be objective. Another potential juror, a business man who lends to customers in Libby stated, “[I] would have a hard time looking [my customers] in the eye if [the case] goes against them.” Another potential removal will be a resident of Libby, born and raised—who had been screened for asbestosis. When Judge Molloy asked about his personal use of contaminated baseball fields and the running track in Libby, the man stated, “We all played baseball [on those fields]. We were all exposed.”
Judge Molloy additionally set the framework for the important legal issues and definitions that will be paramount in this case. Judge Molloy asked almost every potential juror about his or her personal definition of “release” and “imminent harm.” The definitions of these words and phrase will be critical during deliberations. Judge Molloy, without legally defining the words, sought assurance that each potential juror could set aside a personal definition and embrace a new, legal definition given by the Judge himself.
Additionally, Judge Molloy focused on the role of the government and the defense attorneys. He specifically stated that the defense attorneys need not introduce evidence to acquit each defendant. Moreover, he explained that the Defendants have the right to choose not to testify. Judge Molloy also clarified that if a Defendant chooses not to testify, the jurors cannot assume the Defendant’s guilt. He explained that the burden lies with the Government to prove their case against each defendant, by beyond a reasonable doubt, the legal standard of proof in a criminal trial.
- Audrey Schultz
The court took a short break until about 10:35 a.m., when voir dire resumed. A hodgepodge of varied potential jurors appeared before Judge Molloy. Several had backgrounds in science. One man said he works in lending with customers in Libby, Mont., and said it would be difficult for him to rule against the government’s case. “My view of Grace is clouded to a certain degree,” he said.
Another man was “born and raised” in Libby, and expressed similar concerns about maintaining objectivity. One prospective juror, a 18 or 19 year old man, drew a chorus of laughter when he responded, “No, but I’ve been in trouble with the cops,” after Molloy asked about his past legal experience. It was an MIP.
The majority of potential jurors interviewed said they do not read news or usually “skim it.” Family concerns appeared often. Several women had children to deal with, and many referenced “financial hardships” that would occur from taking time off work.
Molloy often explained the efficacy of jury trials to prospective jurors, saying the system “works because people take their obligation seriously.”
At least two individuals said they have served on past cases, which appeared to be mostly theft related. Noon recess began at about 12:30, and I’ve discovered that courtroom benches make my back sore. Voir dire will resume at 1:30 p.m., so stay tuned.
Suits filled the lobby this morning, waiting anxiously to get into the courtroom. Some seemed nervous. Some paced. A few seemed relaxed. One even smiled. All seemed alert, though the yawning began within the first hour of voir dire examination. The jurors had entered the courtroom early, where they were instructed on the possible length of this trial and the schedule. The Court said the plan is to proceed with an alternating three-day and four-day schedule.
There was not an empty seat left, once the attorneys, defendants, and media joined the members of the jury pool in the courtroom. I do not know if visitors were turned away; there appeared to be people in the overflow courtroom downstairs.
The jurors ranged widely in age and appearance, from one who appeared hardly old enough to serve and several others who leaned heavily on canes. Judge Molloy entered the courtroom, and after initial greetings, the courtroom was temporarily arrested by two voices beaming over the speakers. No one learned the identities of the voices, and Judge Molloy flipped all his switches, unable to shut the sounds off. After the brief interruption and laughter from the courtroom (which served to deflate the tension in the air), the technical difficulties were resolved, and Judge Molloy began questioning the potential jurors.
Between about 9:15 and 10:10 a.m., Judge Molloy asked his initial questions to five potential jurors. Judge Molloy spent time explaining the charges, the legal process, the witnesses and the burden of proof, asking jurors if they understood and could follow his instructions. The jury did not express any surprise in body language or facial expression when they learned that this was the “Grace case.”
The first two potential jurors said they had basic ideas of the case, but had not followed any of the media coverage. Each of the five potential jurors said they did not trust the newspapers, often citing this distrust as a reason for not bothering to read the newspapers. Judge Molloy made a point of the inaccuracies of the media coverage, citing this morning’s front page article, which he said “couldn’t be more wrong” and that had reported his ruling exactly opposite of what it actually was.
The third juror was a 40-year resident of Libby and knew many of the people on the jury questionnaire form, including the Parkers. He said he was not convinced that W.R. Grace was guilty and indicated the government had to persuade him that these Defendants “knowingly (his emphasis) killed all these people.” The potential juror said though that he could be fair and would leave his personal and background knowledge out of these courtroom proceedings.
The fourth juror’s dad was dying of asbestos-caused lung cancer and suffering from the hardening of his lungs. Her 84-year old dad had worked for Champion Lumber Company in Butte and Great Falls. She was ambivalent as to whether she could be fair in these proceedings, but said, “I’d try.”
The fifth juror had learned just last night that her mother was given a month to live because of pancreatic cancer. Judge Molloy said he would discuss the matter with her later. She also had family that had lived in Libby, though they were unaffected as far as she knew.
None of the five potential jurors indicated that they had read or followed the media coverage of this case or the situation in Libby.
Ryan Thompson has taken over reporting for the Grace Case Project from Alex, who struggled with predictable kinks on the early morning shakedown leg of coverage. During early morning jury selection, Judge Molloy quizzed potential jurors about their impression of recent local media coverage of the situation in Libby. He stressed that the burden of proof for this case lies entirely with the government — that the government must prove its case beyond a reasonable doubt. The case, Molloy told prospective jurors, hinges only on what the accepted evidence demonstrates, not what they may have learned through media coverage or in their daily lives in Western Montana.
The laptop ran out of battery before the voir dire process even began, and without an electrical plug, I moved to the courthouse’s designated media room where supposedly a live-video stream from the courtroom would be fed.
But the cameras are trained on an empty witness stand and an empty podium, and aside from a potential juror’s head swaying behind the podium, there was no movement. The audio cut in and out, mostly out, so I haven’t caught a potential juror number in a while. For expediency, they were not referred to by name.
Jackie Bartz, a reporter for Missoula’s NBC affiliate, is stuck here in the media room, fuming just as much as I am every time the sound cuts out.
But aside from the technical difficulties, the courthouse has remained rather orderly. The lawyers trickled in from about 7:30 to 7:50, dressed in dark suits and long, black trench coats to shield them from the morning’s chill. They toted rolling briefcases and black carry-on bags, and some even hefted large cardboard boxes. There must have been at least 35 of them.
Potential jurors filed in, wearing mostly jeans and ski jackets. Spectators and members of the media were asked to wait outside until all the jurors and lawyers had come, though that really only applied to me as no other spectators had yet arrived.
In between audio cut-outs, Judge Donald Molloy could be heard asking potential jurors if they paid attention to the news, and if they did, would they be able to disregard the recent local reports about W.R. Grace and Libby. As far as I heard, most didn’t pay much attention to the news, and those that did felt they could ignore the stories related to the case. One potential juror said she thought the news tended to be unfair and inaccurate, and that she didn’t put much stock in it.
– Alex Tenenbaum
Good morning. Alex Tenenbaum is in the federal courthouse in Missoula for UM’s Grace Case Project as the long awaited trial of U.S. v WR Grace gets underway. The 80 potential jurors started the day in the courtroom with court officials only, watching, we are told, a standard-procedure instructional video on the jury selection process and the language of the court. Attorneys, members of the media and any spectators were admitted to the courtroom at about 8:50.
The Grace Case Project is a collaborative effort by UM students providing live coverage and background on the criminal prosecution of chemical giant WR Grace and several former executives.
© 2009 Grace Case