9th Circuit Reverses Judge Molloy on Victim Exclusion Order
View (all are pdf files):
- the Ninth Circuit’s order, Victim’s Rights Order
- the Parkers’ opening brief at the Ninth Circuit,
- the government’s brief,
- the defendants’ response brief,
- Judge Molloy’s response brief,
- the Parkers’ reply brief, and
- the government’s reply brief.
Are Libby Residents Crime Victims?
Judge Molloy’s Order Denying Motion to Allow Libby Witnesses to Observe Trial
By Beth Brennan
As the Grace trial began on Feb. 19, 2009, the local newspaper touted Judge Molloy’s refusal to recognize people who claim to have been harmed by Libby asbestos as crime victims under a federal statute giving victims certain rights. Tristan Scott, W.R. Grace & Co. Trial: Molloy rules witnesses must stay away from courtroom, Missoulian A1 (Feb. 19, 2009) (“When is a crime victim not a victim? When the person is from Libby and suffers from asbestos-related disease, according to a federal judge in Missoula.”) During voir dire the first day, the judge not only inquired of potential jurors whether they had read recent news stories about the upcoming trial and W.R. Grace’s history in Libby, he also noted that the news reports were inaccurate. Were they?
The Crime Victims’ Rights Act, 18 U.S.C. § 3771, was enacted by Congress in 2004. It creates a variety of procedural rights for “crime victims,” defined as those who are “directly and proximately harmed as a result of the commission of a Federal offense.” 18 U.S.C. § 3771(e). One of those rights is the right “not to be excluded” from public court proceedings. 18 U.S.C. § 3771(a)(3); Fed. Rule Crim. Proc. 60(a)(2). This right is worded in the negative because Federal Rule of Evidence 615 allows a court to “sequester” trial witnesses, i.e., exclude them from the courtroom to prevent them from hearing the testimony of other witnesses and possibly changing their stories as a result. Judge Molloy routinely sequesters witnesses under Rule 615.
Judge Molloy first noted his conclusion that Libby residents are not “crime victims” in a 2005 order: “While the entire community of Libby is affected by asbestos issues, I am confident in this case the word victim was not intended to mean community.” U.S. v. Grace, 401 F.Supp.2d 1057, 1059 (D. Mont. 2005). A year later, he ruled that the trial could not be broadcast via closed-circuit TV to Libby, in part because Libby residents are not crime victims. See Order at 3 (May 15, 2006) (Dkt. # 448) (“the government has pushed the definition of who might be a victim, if any, in this case, beyond reason.”) At a pretrial hearing in January 2009, the Court granted the defendants’ Rule 615 motion to exclude fact witnesses from the trial, and stated there are no “identifiable” crime victims in this case. Govt. Brief in Support of Motion to Accord Rights to Victim-Witnesses at 2 (Dkt. #897).
In response, on Feb. 2, 2009, the government moved for an order allowing 34 Libby residents who will be fact witnesses at trial to observe the court proceedings because they are crime victims. The government characterized the Court’s order as requiring a guilty conviction prior to making a determination of whether someone was a crime victim. Govt. Brief at 4 (citing Hearing Transcript at 304-305). The government instead characterized the issue as “whether the thirty-four victim-witnesses are part of a class of people who suffered an increased risk of asbestos-related disease due to the defendants’ actions.” Govt. Brief at 6 n.1.
On Feb. 11, 2009, Melvin and Lerah Parker filed a similar motion on their own behalf, requesting that they be allowed to observe the trial even though they will be testifying as fact witnesses as purchasers of asbestos-contaminated property from W.R. Grace. Motion and Brief in Support of Parkers’ Motion to Assert Rights Under CVRA (Dkt. #908, 909). The defendants opposed both motions, but did not file briefs. Reflecting the nature of the controlling statute, the Court was not so much resolving a dispute between the parties as a dispute between its interpretation of the law and the moving parties’ interpretation of the law.
The government’s and the Parkers’ argument goes something like this: Federal law gives crime victims the right to be present during the trial of the alleged offender; Libby residents are “victims” of the crime of “knowing endangerment”; therefore, even though Judge Molloy routinely sequesters trial witnesses, Libby residents who are trial witnesses should be allowed to observe the entire trial because they are victims of the defendants’ crime of “knowing endangerment.” Government Brief; Parkers’ Brief.
In its order denying the motions, the Court reiterated its conclusion from the Jan. 22 hearing that there are no identifiable crime victims in this case. The Court began with the crime victims’ statute, which defines a crime victim as someone who has suffered 1) direct and proximate harm 2) as the result of the commission of a federal offense. 18 U.S.C. § 3771(e). The Court agreed with the parties that the crime-victim statute must apply before a defendant is convicted, trying to clarify that the lack of identifiable victims in this case does not turn on the lack of convicted defendants. Order at 5. To illustrate its understanding, the Court used the example of a bank robbery: “[T]he court need not assume the accused is guilty in order to conclude the bank was robbed. The bank’s depositors have been victimized whether by the accused or someone else.” Order at 10. Thus, the Court insists its holding is not based on the no-victim-until-verdict rationale. Order at 6 (“Having brushed aside these simplistic and incorrect statements of the law of the case in this action, a careful and deliberate consideration of the Act and its application to this case is necessary.”).
In this regard, the newspaper reports (as well as the government’s and Parkers’ briefs) were apparently inaccurate. But what was the Court’s reasoning? It is not easy to discern. The Court made several observations that it did not explicitly connect to the CVRA requirement of “direct or proximate harm,” while suggesting that they establish that no one in Libby has been directly or proximately harmed. For instance, it noted that the government has charged the defendants with “knowing endangerment,” not with harming Libby residents. This suggests the Court believes no one could ever be a victim of the crime of knowing endangerment, because “endangerment” is not “harm.” The Court also noted that the statute of limitations requires the government to prove at least one overt act after Nov. 3, 1999, suggesting that it may need factual evidence linking a particular release of asbestos with the endangerment of a particular person’s health.
Finally, the Court appears to be looking not just for crime victims, but for identifiable crime victims. It uses the word “identifiable,” which is not part of the statutory definition, throughout its order. See Order at 4, 6, 10 n. 4, 11, 12, 16, 20, 21. Nowhere does the Court explain the legal meaning of that word, even though it appears to be central to its holding.
It seems possible that the Court’s decision reflects its difficulty believing the government’s theory of the case, which requires proof of acts after 1999 while simultaneously depending on proof of acts from as long ago as 1976. If that is true, though, the Court is deciding there are no crime victims because there has been no crime—which is the same thing as deciding there can be no victim until there is a verdict.
Similarly, the Court’s bank-robbery analogy might be an illustration of a different interpretation: a distinction between cases where the issue is not whether a crime was committed, but whether a particular defendant did it, and cases where the issue is not who did it, but whether what the person did was a crime. In the former, there is no question that person X was harmed when some person robbed the bank. In the latter, the Court suggested, there is some question as to whether person X was harmed because we’re not sure that what the defendant did was against the law. Therefore, according to this argument, there is no direct and proximate harm and no identifiable crime victim, until we identify the specific wrongful act.
Although initially compelling, this interpretation seems ultimately to return us to the very place where we started: requiring a guilty verdict before crime victims can be identified. As the Court itself noted, this cannot suffice to explain why Libby residents are not crime victims.
Whether this interpretation, or some other, is correct will be decided this week by the Ninth Circuit Court of Appeals. The Parkers are filing an appeal on Tues., Feb. 24. Under the CVRA, the appellate court must rule within 72 hours. 18 U.S.C. § 3771(3).