The number of defendants in the W.R. Grace criminal case dropped by one today as the prosecutors said that, because of restrictions on what evidence they were permitted to introduce, they could not prove their case against former Grace senior vice president Robert Walsh.
The rest of Monday was semi-high drama before a packed courtroom, and the bottom line was that Molloy is considering dropping the remaining charges in the nation’s largest environment crime case ever.
“One thing I can do is declare a mistrial,” the judge said at one point.
Molloy is faced with two sets of defense arguments: that prosecutors failed to prove their case, and so the defendants should be acquitted, and that the government has engaged in repeated misconduct by misleading jurors and concealing evidence.
Grace’s defense team – starting off with a two-hour plus speech by David Bernick – presented reasons why all charges against the company and its former executives should be dropped. Mostly, it was a repeat of earlier recitations lecturing the judge that he had two paths to take, both leading to dismissal of the all charges.
Bernick cited rampant prosecutorial misconduct and that the charges lacked merit and that prosecutors had failed to prove their case. He urged Molloy to pick any of those reasons to dismiss the case.
Asst. U.S. Attorney Timothy Racicot argued for the government and repeated many of the same responses that have been used against Bernick’s allegations before.
“Bernick talked about our weaknesses for over two hours and only mentioned two documents,” Racicot told the judge. He acknowledged that mistakes have been made in disclosing some evidence, but that they were not grounds for dismissal.
Molloy said the prosecution “put in 40 years of discombobulated evidence that they don’t understand themselves.”
“That’s the problem with a 50-year-old case.”
“I know your honor,” Racicot said.
“Others do not,” Molloy added.
“Trying to split hairs and justify unprofessional behavior will not work,” he said and added. “From the get-go, I trusted Mr. McLean. My trust probably kept me from doing what I should have done.”
A few minutes later McLean took the podium and appeared infuriated by the charges that the defense had thrown at him all day – lying, suborning perjury and more.
“I have never misled or lied to a jury,” McLean told Molloy.
“I’m standing here to answer your questions about my conduct,” he said to the judge. Once. Twice. A third time.
Molloy said nothing for a while.
“I don’t have any other questions, Mr. McLean,” he said finally.
“Are you sure?” the prosecutor asked.
“I’m sure,” the judge replied.
Molloy has given McLean two hours tomorrow morning to explain the merits of the government’s case and why the charges should remain. If the judge decides the trial should continue, the defense will then begin presenting its case.