Feb. 20, 2009
All blog posts for Feb. 20, 2009, in reverse chronological order (Start at the bottom and read up through the day):
Missoula is close to Libby, Mont., the origin of many of the incidents involved in this case. Thus, the defense had asked in January 2006 that the case not be tried in Missoula because they worried that the opinions of Montanans had been tainted by local press coverage. But Judge Donald Molloy denied the request, expressing his belief that Montanans can be fair.
The pool of potential jurors appeared to prove him right. When Molloy asked if they could ignore any news stories they had heard, most candidates not only said yes but admitted that they didn’t pay much attention to the news. Molloy pointed out more than once that news articles about the case have been inaccurate, including one in Thursday morning’s Missoulian.
Molloy did all the questioning and appeared to be interested in the lives of the potential jurors. He tended to focus on people who had interacted with the legal system in some way, or those who had suffered illness, particularly cancer, or were close to those who had.
By Friday morning, the 12 primary jurors had been selected, and by Friday noon, the three alternates were identified. The people chosen to be the peers of the W.R. Grace executives are a diverse group as far as age, occupation and hometown. Potential jurors were plucked from many towns in western Montana.
Molloy repeatedly stressed a few points during the process. He emphasized that the burden of proof was on the prosecution (the government), that they must prove guilt beyond a reasonable doubt. He also cautioned that only the evidence presented in the trial would to be used to determine guilt. Finally, he underscored his belief in the trial system, saying the jury system “works because people take their obligation seriously.” The jury was sworn in on Friday and released.
On Friday afternoon, Molloy was challenged by the defense over a chart created to guide the jury through the case details. They protested that the way it was constructed could bias the jury. Molloy agreed not to give the chart to the jury before opening arguments on Monday morning. The defense also argued that Paul Peronard, the EPA on-scene coordinator for the Libby contamination, should not be allowed to observe the trial since he would testify as an expert. Molloy dismissed their argument, allowing Peronard to observe.
The trial will begin at 8:30 a.m. on Monday with opening arguments.
- Laura L. Lundquist
One of the final issues argued today was whether Paul Peronard was an expert. Paul Peronard was the first EPA investigator to arrive in Libby after the Seattle Post-Intelligencer’s articles announced the asbestos problem to the country.
Under FRE 615, lay witnesses can be excluded from the courtroom . However, the rule does not apply to certain witnesses, specifically expert witnesses designated as a party representative.
The defense has been arguing that Peronard’s asbestos sampling and formulaic analysis are not scientific but factual. Therefore, Peronard would be nothing more than a fact witness, who could be excluded from the courtroom during trial under FRE 615.
Molloy answered the matter succinctly, “Peronard is designated as an expert by the government. He is an expert. He gets to come in.”
After lunch, the court addressed what Judge Molloy called the “Da Vinci Code,” a flowchart of sorts to aid the jury throughout the case. Molloy provided the following analogy for why he wanted to use the chart, “If you have ever sat in the cockpit of a plane, you know how different a Cub is to a Piper. I see the case in this way, and just want to give the jury something to work from.”
The jury chart is approximately 12” x 16” and laminated. The chart has a timeline, with specific dates attached to certain evidence or key statutory dates. The earliest date, according to the argument by the parties, is 1965; referencing a document proving the purchase of the Libby mine by W.R. Grace. Other key dates are: (1) 1976, the point where the agreement and conspiracy “began” according to the government; (2) 1990, when the Clean Air Act was enacted; and (3) November 3rd, 1999, the pre-determined statutorily dictated date from which to judge “knowingly released” under the Clean Air Act (CAA).
From each of these dates are drawn lines in red, blue, or green. The color selected depends upon whether the government must prove a fact, or if the evidence is merely relevant.In the bottom right corner of the chart was a designated box titled “Elements” which listed certain issues which will be discussed and dealt with at trial.
First, Kris McLean presented his problems with the chart. He stated that while he agreed with the document as a whole, he was concerned about the use of the term “Elements.” Judge Molloy admitted the language used was problematic, implying that the box gave the jurors a checklist for the elements of the case. “I will change it to something less problematic, maybe “allegations.””
McLean subsequently spent the rest of his argument discussing Count I, the conspiracy charge. He argued that the timeline creates a problem, not allowing the jury to consider his full argument that a conspiracy can be continuing. Furthering his argument, McLean cited three cases, the third being US v. Hersh, 297 F.3d 1233 (2002).
This is an extremely important issue in this case. If the defense can force the government to prove the conspiracy occurred after 1990, when the CAA was enacted, then the government’s evidence becomes extremely stifled. McLean clearly was providing another salvo in his attempt to show that proof of a conspiracy can be considered before the enactment of a statute without violating the ex post facto clause of the Constitution. As Hersh states, “when a defendant is charged with a conspiracy that continues after the effective date of the statute, the ex post facto clause is not violated.” 297 F.3d at 1244. McLean appears to believe the color designation for the evidence presented in 1976 to 1990 deserves a different color designation because it could apply directly to the conspiracy charge and not merely be relevant.
Next, the defense then began a series of arguments concerning the chart. Lead attorney for Grace, David Bernick, aided by Thomas Frongillo, provided three key concerns:
(1) The indictment has the conspiracy starting in 1976. Therefore having the timeline start at 1965 could confuse the jury as “they spend every moment with this chart” as Thomas Frongillo averred.
(2) The line drawn from “Agreement to defraud,” should be blue because that issue is not merely relevant but must be proven by the government.
(3) In the “Elements” section should be definitions for words such as “knowingly” and how they apply in both the CAA conspiracy charge and the regular conspiracy charge.
Judge Molloy considered some of the changes, such as the color of certain lines and the use of certain dates. However, he refused to accept the inclusion of definitions. “This is supposed to be a guide, not a jury instruction,” Judge Molloy retorted at one point.
With argument on the chart completed, Molloy provided reassurances that the chart will be given to the jurors only after opening statements are presented by both parties.
Legally there are several concerns with giving this chart (or “Da Vinci Code,” which has certain implications) to the jurors in my opinion. Arguably, the chart allows Judge Molloy to establish the construction and presentation of the case. The legal system is an adversarial process. The legal system provides a forum for each party to present evidence and tell its own story. The chart may eliminate some of that ability for the attorneys.
Furthermore, a question exists about whether the chart could be viewed as prejudicing the jury. Frongillo hinted at the possibility that giving such a chart could be grounds for a mistrial, even if it is demonstrative evidence and from the judge.
Lawyers hit their first stumbling block Friday afternoon when they finally had a chance to ask Judge Molloy questions after the lunch recess. At the top of the defendants’ concerns was the ambiguity of the chart Molloy designed to help jurors wade through the trial’s facts and evidence.
The defense expressed apprehension about Molloy’s decision to give the jury the chart at the beginning of the trial, feeling it would not allow the jury to remain impartial. Also, other concerns involved the color-coding of the chart, the chart’s language and what evidence was admitted or excluded on the chart. Defense attorney Thomas Frongillo argued that in an attempt to help the jury the court had “collapsed” the evidence.
Molloy reassured everyone the chart was “not the authority,” it was made simply to help “conceptualize” the allegations and evidence. “I don’t want to confuse the jury. I’ll leave that to you guys,” Molloy said.
Just as Molloy was dismissing court for the day, new conflicts erupted regarding Paul Peronard’s uncertain role in the trial. The defense claimed that Peronard, the EPA clean-up coordinator for Libby, Mont., could not be allowed in the courtroom because he was an expert and factual witness. Regardless of the defense’s attempt to keep Peronard out, Molloy decided to keep him in.
With no further questions from either side, Molloy dismissed court for the day. The court will reconvene at 8:30 Monday morning, with opening statements and with the complete jury that was finalized Friday morning.
–Josh Benham and Elizabeth Diehl
After a day and a half of questioning, the jury for the W.R. Grace & Co. trial has been selected. During recess, the attorneys had ruled out four of the potential alternates, replaced them with four new potential jurors and the process began again.
Molloy connected with Juror 262, a bookkeeper for a Frenchtown school, when they bantered about Frenchtown-Malta (the Judge’s hometown) football matchups. But the connection was to be short-lived. While Juror 262 had no qualms about serving on a jury, she was leaving in the morning for a three-week trip to Lake Havasu. After finishing his questioning of the other jurors, Molloy excused Juror 262, but jokingly warned her that he would send the marshals after her if no one else was acceptable.
Juror 262 was replaced by Juror 382, who ended up being chosen as an alternate juror, along with Jurors 150 and 200. A housewife, a math teacher and a retired Navy radio operator will represent the people should one of the other jurors be unable.
After the chosen jurors left the room, Molloy took the time to make sure those not chosen understood how much he appreciated their time. He explained that jury selection is “time-consuming but extraordinarily important.” His belief in role that the courts play in the democratic process came out repeatedly in his comments. And he evidently enjoyed questioning the jurors. “It was refreshing to have candid conversation with you.”
After the potential jurors left the courtroom, Molloy proposed swearing in the new jury today. One member of the defense team had an objection, saying he thought it best to wait until Monday in case one of the jurors didn’t show up. This very thing occurred today. One of the 12 selected didn’t show up to court this morning so he was replaced by another juror through a hurried challenge process.
Molloy acknowledged the concern but went ahead and had the jury sworn in. Then he reminded them of their conduct (”Don’t talk about the case; don’t listen to the media.”) and obligation. He left them with the advice, “Keep an open mind.” After the jury left, there was some discussion of afternoon deliberation and court was tentatively scheduled to reconvene at 3 p.m.
Laura L. Lundquist
Reporters Josh Benham and Elizabeth Diehl will be covering the case this afternoon.
After selecting the 12 primary jurors, the court moved on to seating the alternates. From the remaining pool of potential jurors, the court seated three who will serve as alternates in the event that one of the original twelve are unable to serve at some point during the trial. The alternate will listen to all of the evidence, but not participate in the deliberations at the end of the case, unless needed to replace a juror who can no longer serve during deliberations. During a trial that could last five months, it is very possible for one of the alternates to be called into service. During the recent prosecution of former Alaska Senator Ted Stevens, one of the jurors unexpectedly left town during deliberations and the judge was required to bring in one of the alternate jurors to complete issues.
The length of the trial and the subject matter of the trial continued to pose difficulties for the jurors. One woman, who was later excused, stated that what is “right” and what is “legal” are often different things. As a result, she thought she would have difficulty setting aside the passion that this case generates in her and follow the law. Another juror appeared to have been excused due to the current economic situation. He runs a small business that employs ten people and he thought he would not be able to focus on the trial knowing that the livelihood of his employees and their families depend on him.
The alternates added several different perspectives to the jury. One older man was a veteran of World War II, having served in the Navy during the battle of Okinawa. He indicated that he would be “humbled and honored” to serve on the jury and that this was an important case because it would “set precedent.” Another alternate was a white male math teacher, in his 30s-40s. The final alternate is a woman in her 60s.
The judge excused the remaining potential jurors and thanked them for their service. The full jury of 15 was sworn in and given the standard admonitions that accompany jury service: they are not permitted to talk about the case with anyone, including fellow jurors until the conclusion of the case; the jury is not to watch, listen, or read any news accounts of the trial; and the jury is prohibited from doing any independent research about the case through any means, particularly the internet. Lastly, the Court told the jury to keep an open mind until deliberations.
One of the jurors asked for clarification of the admonition against talking about the case. The juror wanted to know if he could talk to his spouse about the process. The court emphasized that they should not talk about the evidence.
After the jury was excused, Judge Molloy passed out a chart he intends to give to the jury after opening statements. The judge indicated that he thought it would help the jury keep track of the evidence and what is “relevant and what is not” to each charge. The attorneys appeared surprised and concerned about the court giving the jury a “guide” to the evidence. While the judge stated that he was open to the attorneys’ concerns, he told them to think of him as the “architect” and themselves as “electricians” who could change the location of the switch but not the need for the switch.
Opening statements will begin Monday morning at 9:00 a.m.
– Andrew King-Ries
Jury selection is proceeding at a rapid clip. The 12 primary jurors were selected today using the process of peremptory challenge, which means that potential jurors were eliminated if either the prosecution or the defense had any questions as to their character. It was also run, according to Molloy, using the “Arizona strike method,” where the potential jurors were evaluated in a random order, and the first 12 who were acceptable to both sides were selected. The following jurors were selected: 136, 152, 300, 381, 145, 013, 235, 221, 369, 194, 304, and 269.
The remaining 28 potential jurors who were questioned yesterday were released except for Juror 64, who was kept over to be in the alternate pool. An additional six candidates were called out of the gallery for consideration as alternates.
The three women and four men were questioned about their occupations, any legal situations they might have been involved in, any health issues, if they had followed the media coverage of Libby and whether they felt they could listen to the case objectively.
Two women indicated they could probably not put their feelings aside, and most of the pool mentioned concerns about the impact of the case on their jobs, especially in this difficult economy. Molloy emphasized repeatedly the need to follow the law, and that the law says a juror’s obligation is to listen objectively to the evidence presented in court, putting aside any personal opinions or past influences.
He said this so many times that one potential juror commented, “No, that’s plenty; I think I’ve got it,” when asked if he needed any clarification. Only two potential jurors sounded like they felt they could do this with no reservations. After questioning, the court was recessed for 15 minutes.
– Laura L. Lundquist
All 12 members of the jury were selected first thing this morning in Judge Molloy’s court. The day started with the collection of the exercise of preemptory challenges from the government and the defense. Molloy informed both sides that he would use the Arizona Strike method and he asked for patience while the preemptory challenges were gathered. Five minutes passed as hushed murmuring swirled around the courtroom. The Clerk then stood and read the numbers of the 12 people who would take on the important role as jurors for the duration of the trial. The jury consists of seven men and five women. The selected jury members were escorted by the clerk of court to the jury room to wait further instructions.
Judge Molloy graciously thanked all those who sat through voir dire. He expressed appreciation for the time they spent waiting and answering inquisitive questions, and for their travels far from their homes and families. Molloy went on to remind everyone that juries are the “essence of government,” that the Constitution begins with the treasured terms “We the People,” and as such we put our people before any executive, legislative or judicial post. With a final display of gratitude, the Court informed the excused jurors that they were free to go.
As the room cleared, the alternate potential jury members were left sitting behind the small partition waiting to learn their purpose. Judge Molloy instructed them that three of them would be chosen as alternates for the jury. The court then began the voir dire process for the alternates. — Katie Mazurek
Laura Lundquist will be covering the trial this morning. Other reporters include a representative from Bloomberg.