There is a slight lingering stench in the Missoula courtroom where the criminal trial of W.R. Grace is two days from going to the jury.
Many blame it on the odorous performance of Grace’s star lawyer David Bernick and his repeated assertions that a Robert Marsden, an EPA criminal investigator had a “special relationship” with discredited witness Robert Locke.
With a theatrical delivery, feigned disgust, that a Shakespearian player would covet, Bernick read from innocuous emails between the agent and the witness as if they were confessions of drug dealings, or payoffs, or selling little children or possessing WMDs.
Few dispute that the prosecution screwed up its obligation under law to get information and documents on Locke — a former Grace official and crucial witness — promptly to the defense, and they’ve been punished for it. But that has nothing to do with the deceptive picture Bernick has painted for the jury on the spurious “special relationship.”
I shared some examples of language from some the emails that the enormously successful corporate lawyer used as the basis of his accusations with seven lawyers or law professors and past or current federal investigators.
All concluded that the electronic correspondence indicated that Marsden’s actions were appropriate, completely professional and just the way investigators routinely work to maintain contact with a witness. There was nothing “special” about it.
Some legal observers say it won’t matter in the end and that the jury will see through Bernick’s ploy.
I have greater concerns. While I know that the sometimes distasteful Bernick is considered by the business press to be among the best there is in defending corporations like Grace, tobacco companies and makers of breast implants, I am amazed that an experienced jurist like Judge Donald Molloy didn‘t yell foul at the “special relationship” ploy.
His honor has referred to the phrase from the bench — both verbally, and I’m told, in writing. Some people who say they have known or appeared before the judge for ten or more years say that with Molloy’s knowledge of how investigators function, they can’t believe that the judge permitted Bernick’s charade.
Molloy repeatedly insists that all of his rulings and action are based on law and not something he cobbles up behind the closed doors of his chamber.