By KIRK JOHNSON
Published: April 24, 2009
In a federal courtroom in Montana, prosecutors have weaved a dramatic narrative tapestry over the last two months about industrial disaster in the small town of Libby, where over many years hundreds died of asbestos-related disease acquired, prosecutors say, by living near a now-defunct mining operation.
The chemical products company W. R. Grace and five of its former executives are charged with a variety of felonies in the case. For decades, the government says, they knowingly poisoned Libby with byproducts from the mining of vermiculite, a mineral with a number of uses, and then conspired to cover up the wrongdoing. In addition to those who died, many more were sickened.
Now the curtain has lifted on a drama within the drama, and the prosecutors are playing defense.
In a filing with the court late Thursday, lawyers for Grace asked Judge Donald W. Molloy of the Federal District Court in Missoula to dismiss the case because of a pattern of “repeated and intentional” misconduct by prosecutors that, the defense says, includes allowing perjured testimony.
“We now know that the government deliberately solicited testimony from key witnesses that its own agents have conceded to be false,” the company’s lawyers said in their motion. “The government’s malfeasance is not isolated, but pervasive.”
Defense lawyers are of course paid to go for the jugular. But legal experts who have been following the trial, one of the most highly publicized environmental prosecutions in American history, say the government’s problems transcend the usual sparring.
Judge Molloy has voiced doubts about the prosecutors in open court in recent weeks, though out of the jury’s presence. He has said, for example, that Robert Locke, a former Grace executive who is a star witness for the government, is probably “a liar.” It is Mr. Locke whose testimony is at issue in the defense’s accusation of suborning perjury.
The judge has also said repeatedly that little evidence of conspiracy, a major charge in the indictment, has been presented.
The news for the prosecutors only got worse on Thursday when Judge Molloy issued an order throwing out dozens of their recently submitted exhibits, including internal company memorandums. Part of the reason, he wrote in his order, is that he simply did not trust the prosecution to do the right thing.
“The government’s practice of presenting incomplete proof calculated to exclude all evidence adverse to its litigation position, while permissible as a trial tactic, does not induce confidence that the government will eschew the opportunity to argue misleading inferences,” the judge wrote.
Lawyers for the two sides have been barred by Judge Molloy from speaking to reporters, and as of Friday the prosecution had not filed any written response to the accusations of misconduct or the rulings on evidence.
The government is expected to rest its case next week. But first a hearing has been scheduled for Monday on the alleged prosecutorial misconduct and a further motion, filed Thursday by the defense, seeking a verdict of acquittal for lack of evidence.
Andrew King-Ries, an assistant law professor at the University of Montana who has observed much of the trial, said Judge Molloy’s often-stated skepticism, combined with the defense team’s direct assault on the prosecution team’s ethics, had created great uncertainty about the outcome.
“The government is in serious jeopardy,” said Professor King-Ries, who teaches criminal law and has been overseeing a daily blog from the courtroom, written jointly by students from the university’s journalism department and its law school. “When a judge makes statements in open court suggesting that your evidence is insufficient or that he doesn’t agree with your theory of the case, that’s a terrible position to be in for a prosecutor.”
By geological chance, vermiculite in Libby was layered millions of years ago with naturally occurring asbestos. Grace, which bought the vermiculite mine in 1963 and closed it in 1990, agreed last year in a civil settlement to pay $250 million for environmental cleanup in the town.
The company, which was driven into bankruptcy protection in 2001 by hundreds of millions of dollars in asbestos-related product claims mostly unrelated to Libby, reached tentative settlements last year to pay $3 billion to asbestos victims.
The five former Grace executives, all now retired, face up to 15 years in prison if convicted of the most serious charges. The company would face fines and other penalties totaling hundreds of millions of dollars.
Monday’s hearing will come loaded with history. Judge Molly has overseen the case since the indictment in 2005, and five major rulings of his, all against the prosecution, have been overturned on appeal.
The course of action he now takes will have big implications for the possibility of future appeals. He could, of course, deny the defense motions. Or he could dismiss the case for misconduct, a decision that could be appealed.
But an order directing a verdict of acquittal would end the case: acquittals cannot be appealed.
More Articles in US » A version of this article appeared in print on April 25, 2009, on page A9 of the New York edition.
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