May 7, 2009
After each defendant had pled his case to the jury, the government was given one last chance to speak to the jury and prove it had met its heavy burden of proving the charges beyond a reasonable doubt. Kris McLean rose to rebut the closing arguments by defendants W.R. Grace, Robert Bettacchi, Henry Eschenbach, and Jack Wolter. It was after 5:30 p.m. when McLean got back to the podium on rebuttal.
Attorneys for each of the defendants had levied harsh criticisms on the prosecution and McLean acknowledged it stung a little; however, he said it is a common and occasionally effective tactic to deflect attention from themselves. But other than calling the approach a distraction, McLean did not directly address the holes illustrated by the defense.
McLean drew attention to the closing by David Bernick, which pounded on themes of “credibility” and “the whole truth.” McLean reminded the jury, “The documents don’t lie. They were created by the defendants. Please read them. They will tell you the whole story.”
When McLean tried to turn attention to the citizens of Libby by rhetorically asking, “Who followed up with the citizens of Libby?” Bernick objected. The whole courtroom seemed to be caught off guard by the interruption—the nine previous hours of argument had gone entirely uninterrupted except for stretch breaks. Judge Molloy sustained the objection as improper rebuttal and McLean stood for a long time gathering his thoughts again.
Some of the issues McLean addressed on rebuttal were accusations about the EPA’s own failings, questions about the corrupt intent elements, statements by deceased-defendant Alan Stringer regarding products with less than 1% tremolite in Libby vermiculite, how chronic exposure can still be an imminent danger, the impossibility of quantitative health risk assessments, and the plan developed under Chip Wood.
The Wood plan was characterized by the defense as a business strategy and not a conspiracy. While the defense claimed it was in direct conflict with a conspiracy concept, McLean argued that during Wood’s 1977 to 1982 CPD tenure improvements were made and good things done, but that defendant Henry Eschenbach’s 1983 disclosure to the EPA was business as usual—incomplete and misleading. McLean charged that the “core conspirators” carried on in secret under Wood, and went back to their secretive ways once Wood left CPD. McLean used the 1983 letter to point out the “remarkably similar statements” found in Grace’s 2002 response to EPA’s Request for Information letter: there is no reason to expect hazardous exposure levels from airborne fibers. “It’s the same plan, the same language to the government, for twenty years,” McLean said.
McLean took an especially hard line on defendant Jack Wolter. He acknowledged that Wolter toiled to reduce exposures to mine workers, evidence Wolter was well-aware of “the propensity to release.” Wolter, he argued, had been present from the beginning, had received “every memo on every topic,” was the chair of the tremolite study committee, and owned the flyway property at one point. This type of evidence, McLean argued, could be used to infer the defendant’s criminal conduct.
McLean made a final plea for the jurors to apply their collective common sense to “the law the court gave you and the facts we presented” and to find the defendants guilty as charged.
Before sending the jury off to deliberate, Molloy called the marshals and bailiffs forward. All took an oath to protect the jury until it has reached a unanimous verdict. The judge gave a brief constitutional lecture, drawing particular attention to the Sixth Amendment: the accused has a right to a speedy and public trial by an impartial jury. He implored the jury to remember its obligations for full and fair consideration of the arguments and evidence within the confines of the jury instructions he gave at the start of the day.
“Your judgment is extremely important to all of us,” said Molloy. The jury was escorted out by the marshals to begin deliberations.
–Kirsten Madsen (posted at 9:17 a.m.)