W.R. Grace claims prosecutors in Montana criminal trial are concealing evidence

Spring break is over for most.

Kids return to school and witnesses, lawyers, the judge and hopefully the jury in the W.R. Grace criminal trial will show up for work tomorrow in the federal courthouse in Missoula.

That’s where Grace and five of its former executives are on trial for poisoning the people of Libby, Mont., by knowingly exposing them to vermiculite ore from the company’s mine that was contaminated with deadly asbestos fibers. The scope of the criminal prosecution of company executives is unprecedented.uncivil-action

While U.S. District Judge Donald Molloy had some family business to tend to over the break, I doubt seriously that he had much time to play.

The trial docket is overflowing with motions from Grace defense lawyers asking Molloy prevent the type of prosecutorial misconduct that nullified the conviction of former Alaska Sen. Ted Stevens.

They also want his honor to exclude, strike and remove from the jurors’ minds part or all of the testimony by Drs. Alan Whitehouse and Aubrey Miller.  And they’ve asked Molloy to purge much of the information, knowledge and memories presented during three-plus days of grilling of government witness Robert Locke.

One of Grace’s lawyers accused Locke, a former Grace executive, of giving stolen corporate documents to the government.  The problem with that allegation is that most, if not all, of the Grace correspondence, memos and reports have been public for years.

They were presented as evidence in many of the personal injury trials of Libby miners and family members that occurred before Grace declared bankruptcy to put a screeching halt to their former employees’ day in court.

The now deceased Seattle Post-Intelligencer used many of the same documents in its investigative series on Libby in 1999. And David McCumber and I quoted from and foot-noted them in our book, “An Air That Kills.”

The brigades of Grace lawyers are tan, rested and ready and will undoubtedly continue to add their unique form of excitement to Molloy’s domain.

The vacation break didn’t slow down the entry of motions.

On April 5, Grace lawyers Kathleen DeSoto and David Bernick filed a motion alleging that chief prosecutor Kris McLean and his team were guilty of the same type of misconduct that just three days earlier moved U.S. Atty. Gen. Eric Holder to declare that Stevens was wrongly convicted.

The Grace motion called for the rough interview notes of a prosecution witness, taken by a government lawyer or a government agent, be released to the defense.

In the Stevens case, the government did not produce, until after trial, two prosecutors’ notes documenting a witness interview where no memorandum of the interview or agent notes existed.

“The U.S. Department of Justice’s recent decision to seek unilaterally to set aside the conviction of former Senator Theodore Stevens of Alaska stands as a stark warning of the consequences of the Government’s failure to produce attorney notes,” Grace’s team wrote in their request of the judge.

“The Justice Department said that the information withheld from  Steven’s lawyers could have been used by the defendant to cross-examine witnesses and in arguments to the jury,” the Grace motion continued.

Now we wait to see what his honor in Montana has to say about all of this.

Boring?  I doubt it.


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