May 5, 2009
Unfortunately, the media was not allowed to sit in on jury instruction argument this afternoon. Judge Molloy called all of the remaining attorneys into chambers for about 20 minutes, and they emerged with what appeared to be a packet of jury instructions from the Court. Molloy gave the attorneys fifteen minutes to review the instructions, and during this time the courtroom was closed to all viewers. Beginning at 8:30 tomorrow morning, Molloy will read the jury instructions, followed by the prosecution’s closing arguments, a short lunch break, and the defense will begin its closing arguments after lunch.
– Katy Furlong (posted 5:25 p.m.)
Last week, Molloy said that jury instruction would be argued before the public. But the clerk of court told reporters and onlookers differently Tuesday.
After Molloy dismissed the jury, attorneys for both the prosecution and defense met in Molloy’s chambers to discuss the instructions. The lawyers emerged from the judge’s chambers, left court out the backdoor to review what they had just come up with, and the sparse audience was told the remainder of court for the day would be off the record.
Molloy told the court last Wednesday that he had heard only one other case in front of an audience, and in the name of transparency, he said, jury instruction in this case would be argued before the court.
Jury instruction will precede closing arguments and will be open to the public Wednesday morning.
–Will Grant (posted 5 p.m.)
Defense attorney David Bernick concluded the defense case by calling the EPA’s Libby On-Site Coordinator, Paul Peronard, back to the stand. Bernick and Peronard sparred for over an hour, with Bernick asking questions regarding EPA Region 8’s role within the larger agency.
Bernick showed Peronard several letters and memoranda to, from, and between EPA employees and administrators, including a few statements in which Peronard purportedly stated that he would not return to Libby unless he could be “king.” Peronard showed great unwillingness to give simple responses to Bernick’s questions, instead vociferously objecting to Bernick’s questions and giving long and difficult responses. Bernick several times asked for Judge Molloy to instruct Peronard to answer the questions, and occasionally moved the court to strike Peronard’s testimony as non-responsive.
Once Bernick finished, prosecutor Kevin Cassidy asked Peronard a much shorter series of questions to clarify Peronard’s difficulty with Bernick’s questions. Peronard reiterated his concerns with Bernick’s questions, and also stated that he had wanted to be “king” in the sense that he wanted to be in charge of the EPA operation in Libby, as the EPA effort had previously suffered from several people concurrently sharing authority, which had led to confusion and wasted effort.
At the conclusion of Peronard’s testimony, the three individual defendants rested. Bernick, for W.R. Grace, wanted to introduce one last exhibit, a summary of Peronard’s statements to the Libby Community Advisory Group made in 2003. This required the jury to return for just a few minutes, at which time the exhibit was introduced and Cassidy asked a few questions.
At this point, the evidentiary portion of the trial was done. Molloy told the jurors to return tomorrow at 8:30 a.m. for closing arguments, with Molloy promising to hold the attorneys to strict time limits. With the jury excused, Molloy then prepared to hold argument on jury instructions for the rest of the afternoon, and if need be, into the evening.
Mark Lancaster – posted 5 p.m.
Molloy will instruct the jury first thing in the morning, and the jury will begin to deliberate by tomorrow, Molloy said.
“Life’s a circle,” defense attorney David Bernick told Peronard as he took the stand for a second time Tuesday afternoon.
Peronard was first called as a witness for the government at the beginning of the trial in February.
Bernick focused his questions on letters and emails that Peronard sent to officials within in the EPA in 2002
Bernick emphasized Peronard’s reference to himself as “King of Libby.” Peronard said the remarks were taken out of context and that he was working under several limitations in the EPA when he was in charge of the Libby cleanup in 2002.
“It wasn’t the war powers act, I couldn’t put a missile base up there,” Peronard said in reference to his power in Libby.
Tensions thickened between Peronard and Bernick at many points during direct. Bernick moved to strike two of Peronard’s answers because they didn’t answer his question. Molloy also had to tell the two to not argue over each other.
“You’re not on trial here, I’m not saying you are,” Bernick told Peronard. “You don’t have to defend yourself.”
Bernick asked Peronard about Libby attic insulation cleanup and tried to prod Peronard into saying the EPA didn’t want to bring national attention to the cleanup. Peronard insisted this was not the case.
“Isn’t it true, in 2000, there was discussion between you and EPA headquarters about known risks to Libby residents in the late ’80s?” Bernick said.
The government’s redirect was short as the prosecution tried to subdue the drama that Bernick attempted to stir that afternoon.
Under cross-examination, Peronard told the jury that he never bullied anyone within the EPA, nor did he exert selfish desires to be the “King of Libby.”
–Kelsey Bernius (posted 4:45 pm)
The four remaining lead defense attorneys claimed to have rested their case Tuesday morning, but their stipulations prompted Judge Donald Molloy to recess the jury for a brief hearing. When the jury came back into the courtroom, Molloy said the case could go before them Wednesday.
After resting its case, the defense moved to admit a slew of new documents into evidence, including published animal studies on the effects of tremolite and the e-mails of a dissenting Environmental Protection Agency employee named John Malone, whom neither legal team could find. Molloy asked whether Malone was even still alive. Bernick assured him that he was.
The e-mails supposedly show EPA internal disputes over how best to proceed in Libby and differences of opinion about asbestos science. Government prosecutor Kevin Cassidy argued that the e-mails were not relevant to the case, as they do not reflect official actions and statements made by EPA. Besides, he said, there should always be internal discussion in government agencies to decide the best course of action.
Cassidy said defense witness William Corcoran painted the EPA Region 8 team as a bunch of cowboys out in Denver trying to make waves. The Malone e-mails, though irrelevant, would corroborate this sentiment and undermine the EPA’s credibility with the jury, Cassidy said.
After arguing to omit the e-mails, Cassidy asked that Paul Peronard, EPA director in Libby, be allowed to return to the witness stand to offer testimony rebutting the damaging statements made by Corcoran. Peronard had been sitting in the gallery all morning, his first appearance in court in weeks.
Molloy asked what specific charge Peronard’s testimony would go to, but Cassidy simply expanded on his point about EPA’s credibility.
At first, Bernick seemed opposed to the letting Peronard back on the stand. But as Cassidy got into issues of EPA’s official statements versus the apparent infighting suggested in the Malone emails, Bernick’s demeanor changed.
Molloy remained opposed, saying, “Relate it to a charge, please.”
Bernick jumped in, though, and offered to call Peronard as the defense’s next witness, saying, “If you pull this little string, the whole thing unravels.”
Molloy agreed to allow Peronard back on the stand. He called the jury back, only to dismiss them for lunch. He apologized for wasting their time and said there was a real possibility that the case could go to them tomorrow.
-Alex Tenenbaum (posted 1:45 p.m.)
Bettacchi’s defense was in full force today as witnesses were called to demonstrate Grace’s complete transparency regarding the health risks of the Libby property that was sold or transferred after the closure of the mine.
The first witness of the morning, former Libby city attorney Mark Fennessey, testified to the environmental concerns the city had with property Grace donated to the city. While the city planned to use the property to attract industry to the area, the environmental concerns of asbestos contamination and diesel fuel spills raised red flags.
However, Fennessey testified that he, city council, and the mayor had been advised of the location of the hazards and the specific type of risks they threatened. In fact, the city acknowledged that it has been given sufficient opportunity to examine and assess the three subject areas that were at risk. Further, the city said it would assume full responsibility for the costs of operating, maintaining, and removing or remediating the three subject areas as may be required by law. However, Fennessey said Grace took further action to clean up the area, and even postponed closing on the property in order to mitigate potential risks.
On cross, Kris McLean brought out that while everyone was aware of the asbestos issues, not everyone was clear on the immediate health problems associated with the property. In fact, none of Grace’s disclosures spoke directly to the health problems of the property.
Then, Patrick O’Toole for Mr. Bettacchi called the next witness. Joseph Rogan, a former Grace controller, further testified to the donation of Grace property to the city of Libby. While the city would not agree to provide indemnity to Grace against third party claims or against currently unknown issues on the land, Rogan said Grace did not have any reason to believe that any further environmental issues would be identified in the future.
Finally, Frongillo called Melvin Parker back to the stand. What started as a professional exchange quickly escalated to a battle of divergent viewpoints with coarse words and harsh accusations. Frongillo’s main attack centered on the date of Parker’s awareness of the health risk of his property.
Frongillo pressed Parker about a conversation he had with Patrick Plantenberg who had worked for the state on the reclamation of the Grace property. Plantenberg had done an extensive analysis on the mine, and claimed to have supplied Parker with language that specifically warned Parker of the health risks associated with the property. However, Parker stood strong in claiming that he had never seen the analysis, and that he did not base any of his actions on the information contained within it.
To emphasize his point, Frongillo compared the language in Parker’s management plan with that of the environmental analysis Parker claimed to have never seen. He took Parker word for word through two paragraphs of the environmental analysis, and then compared it side by side to language from his own management plan. Frongillo started accusing Parker of plagiarizing the analysis, which would make it impossible for Parker to have never seen the document. Parker maintained, as he had testified before, that the language came from an independent source, and that Mr. Frongillo was welcome to investigate the language from that document if he liked.
Frongillo then launched his full-scale attack on Parker, claiming he lied and plagiarized to protect his own interests. “You care more about the money that is sitting in your pocket than you care about this criminal trial,” cried Frongillo. Frongillo then told Parker he had one more issue he needed Parker to resolve before he could go back to where he came from.
Over Parker’s objections, Frongillo attempted to corner Parker into saying he wanted to keep the vermiculite on the property. Parker resisted Frongillo’s advances by claiming that the vermiculite was no good to him unless it had already popped, and further stated that he had done Grace a favor by relieving them of their obligation to remove the material. Frongillo never quite got the words of surrender he was looking for, but he continued to press Parker further. Parker finally called the last shot when he told Frongillo that he was starting to sound like he was done.
Frustrated, Frongillo spouted, “You went forward with the deal with your eyes wide open,” and the morning was called for recess.
– Kathryn Mazurek (10:25 a.m.)
Attorneys representing Robert Bettacchi called several witnesses Tuesday morning in order to discuss the export plant that W.R. Grace & Co. donated to the city of Libby, and Mel Parker’s purchase of the screening plant from Grace.
Thomas Frongillo, representing Robert Bettacchi, said that Parker was called to testify again because additional information had surfaced since Parker’s first testimony. Frongillo asked several questions regarding the Parkers’ proposal to buy the mine from Grace and the Parkers’ intention in buying the land for its timber.
Frongillo asked Parker about an Environmental Assessment document of the land. According to the document, the vermiculite ore on the mine land had asbestos in it, which posed a health hazard. Parker made clear that he had never received this document, though the author testified earlier in the case that Parker had received the assessment.
Frongillo showed Parker a transcript from his first testimony, claiming that Parker plagiarized language in his first testimony out of the Environmental Assessment, which would indicate that Parker had seen the Environmental Assessment before. Frongillo showed an illustration comparing the draft Environmental Assessment and Parker Land Management Proposal, showing the two documents to be very similar in wording. Parker repeated that he had never seen the Environmental Assessment.
Defense attorney, Brian K. Gallick representing Robert Bettachi, called Mark Fennessy, a lawyer from Butte, Mont. He has practiced law since 1971 and from 1981 to 2000 worked for Libby as the city attorney.
Fennessy’s testimony focused primarily on several documents outlining communication between Grace and the city of Libby concerning Grace’s donation of the export plant to the city.
The prosecution’s cross-examination focused on whether the city of Libby was made aware of potential health hazards of the land donated from Grace.
The defense then called Joseph Rogan from Winchester, Mass. He worked for Grace from 1988 to 1999 as a controller responsible for accounting, insurance and cash management for the company. The direct-examination focused on showing that the city of Libby agreed to the donation of the land despite knowledge of contamination.
-Kalie Tenenbaum (Posted 10:30 a.m.)