Feb. 27, 2009
Day 7: All blog posts filed Feb. 27, 2009, are duplicated here in reverse chronological order. Read from the bottom up.
Today, Friday, February 27, 2009, the 9th Circuit Court of Appeals reversed Judge Donold Molloy’s decision excluding 34 victim-witnesses from the courtroom. The 9th Circuit found that district court erred in ruling that the ”prospective victims do not meet the meaning of ‘crime victim’ set forth in the Crime Victims’ Rights Act.”
The 9th Circuit ordered the district court to conduct further proceedings to make “particularlized findings” as to each of the 34 individual victim-witness identified by the government. Such findings are necessary only if the lower court excludes the victim-witnesses from the courtroom.
Prof. Beth Brennan has considered this issue at greater length. The Victim’s Rights Order is shy of two pages, but debate over the ruling and the reversal is robust. Paul Cassell has been representing the Parkers and filed the appeal to the 9th Circuit on their behalf.
– Andrew King-Ries
With witness Paul Peronard on the stand and countless court documents in hand, the prosecution began to lay the groundwork for the obstruction of justice charge against W.R. Grace during the second week of trial.
Under careful questioning by attorney Kevin Cassidy, Peronard, an expert witness in Libby’s clean-up coordination, spent Thursday explaining the EPA’s investigation of Libby, Mont., and Grace’s alleged attempts to mislead and obstruct the EPA’s efforts.
After the prosecution finished its initial examination, Grace attorney David Bernick poked holes in the obstruction charges against his client, at times causing Peronard to appear confused and irritated. At one point, Peronard told Bernick, “Your words, I think, are nonsense,” in relation to an argument over Grace’s waste disposal techniques.
Week two also included opening statements from the prosecution and defense as well as testimony from a series of victim witnesses.
Seven victims spoke on Tuesday, and one, Wendy Challinor, appeared emotionally distraught during and after her testimony, in which she spoke about her and others’ frequent contact with vermiculite.
Trial recessed Thursday afternoon and will reconvene Monday at 9:00 am.
-Kelsey Bernius and Nate Hegyi
The court reconvened from afternoon recess at 3:15 with David Bernick, attorney for W.R. Grace, continuing his cross examination of Paul Peronard. The cross examination was aimed at rebutting elements of Peronard’s testimony on direct examination regarding the obstruction of justice charge against W.R. Grace. Bernick sought to establish that the 104(e) information request form that was issued to Grace by the EPA specified that information was to be gathered from past and present employees and directors of W.R. Grace, but not from corporate records. He went on to ask Peronard whether he thought that the 30 day deadline on the request was a sufficient amount of time to cull through ‘millions of pages of documents.’
Bernick’s cross examination also focused on the fact that the majority of Peronard’s contact with W.R. Grace and Company was through former mine manager, Alan Stringer. Bernick pointed out that because Stringer has died, the only version of what W.R. Grace did and did not divulge to the EPA is that of Peronard.
Seemingly for impeachment purposes, Mr. Bernick attacked Mr. Peronard’s lack of notes on conversation with Grace employees and residents of Libby, and his failure to retain certain correspondence. Bernick also inquired about a piece of evidence which had been eaten by Peronard’s puppy.
In an attempt to lessen the impact of Peronard’s prior testimony, Bernick pointed out that maps which were used as demonstrative exhibits by the United States did not illustrate the many soil samples that did not show asbestos contamination. Bernick produced several of his own maps which illustrated that the majority of soil samples taken in and around Libby did not detect asbestos. At the high school, 85 percent of the samples taken were ‘non-detects.’ Exhibit 699, a map of the middle school showing that 93 percent of the soil samples there were ‘non-detects,’ was received into evidence without objection. Exhibit 704, a map showing that 95 percent of the property around Plumber school did not contain asbestos was received into evidence, also without objection. Peronard explained that even at sites with a high level of asbestos contamination, it was normal that most soil samples would not contain asbestos.
Throughout the last part of the day, cross examination bordered on combative with Peronard being reprimanded by Judge Molloy multiple times for talking over the top of Mr. Bernick. At one point Bernick asked Peronard if he would agree that W.R. Grace ought not have have contemplated donated vermiculite in their responses to the EPA. Peronard responded by saying, “You’ve gotta be kidding me.” Twice throughout the afternoon Bernick interrupted Peronard and successfully moved to have portions of his testimony stricken from the record on the grounds that it was non-responsive.
Court adjourned for the evening at 5:00. Bernick’s cross examination of Paul Peronard will resume on Monday.