Steve -- It seems unlikely that the prosecutors have a problem with the argument here, as they are joining me in the Ninth Circuit. Over the last four years, they have held a number of meetings in Libby, Montana, keeping the victims community informed about what was going on. My impression is that they viewed it as part of their duties to keep the harmed communities informed of what was happening.

Steve -- It seems unlikely that the prosecutors have a problem with the argument here, as they are joining me in the Ninth Circuit.

Well I should hope they feel that way, as they were committed enough to bring this case in the first place. But I suspect that not every prosecutor would have done the same. I have to imagine that a case of this magnitude against a major corporate defendant consumes a tremendous amount of resources, and prosecutorial discretion surely encompasses the judgment to refrain from spending the entire office budget on a single case.

But set that aside. If your interpretation of the CVRA is upheld, to what extent do you believe this would add to the cost or complexity of the proceedings, in an environmental case such as this one?

Steve -- The CVRA provided the Justice Department several million dollars to increase victim-witness services. All U.S. Attorneys Offices, to my understanding, have victim-witness coordinators who specialize in providing notices and other victim services. Also, for truly "mass" victim cases, web-based notification has been authorized by the courts. So I don't think there is a big burden that is associated with these cases.

Any thoughts on the relationship between the CVRA and the SarbOx whistleblower protection statutes? One of the protected rights under 18 U.S.C. 1513 is non-retaliation, and it would seem these overlap in at least that situation.

Let me explain slowly. The victims rights' movement is about nice, middle-class white people's catharsis when the lowlife mugger, burglar, or rapist (often of a darker-hued race) might get less than the maximum sentence or is about to get paroled. It does not apply in cases of white-collar crime, to the very limited extent that we concede corporations and officers thereof are even capable of crime.

I join "BarrySanders20" in questioning the "law of the case" argument. At least in my experience, the law of the case is normally only binding on the trial court where the earlier decision was made by a higher court or where the earlier decision was made by the trial court but there has been an intervening interlocutory appeal in which the question at issue could have been raised and wasn't. Otherwise, the doctrine operates as a "prudential" rule designed to deter parties from wasting the court's time with constant attempts to convince it to change its earlier rulings, but the trial court still possesses the discretion to change its mind.

I'm not a fan of the victims rights movement. But I have to give Judge Cassell props for applying his principles consistently when it's the victims of an environmental crime by a big corporation rather than the victims of a street criminal.

Abdul's cautions are useful, although the harms seem more proximate here. But were some prosecutor to decide to bring criminal charges against vaccine manufacturers for causing Autism, not really such an farfetched idea despite the science cutting against such theories (which is somewhat distinct from what I understand to be a real association with harm of significant exposure to certain forms of airborne asbestos) should any family with a vaccinated austistic child become a crime victim?

I think these are rational public policy questions, esp. where you have the problem of mass psychogenisis piled on top. I have seen EPA risk assessments of the sort discussed here make a mountain out of a molehill and probably do more psychological harm than any physical manifestation of the studied 'exposures' could ever possibly have done. It is a gross miscarriage of justice to portray someone responsible for any releases of hazardous substances are effectively culpable for EPA's agenda fueled incompetence.

These public processes did not result in criminal charges, although they might have under various theories of federal hazardous waste disposal statutes. And I blame the harm in those cases on poor risk communication and poor work by EPA, but society has all but insulated government contributions to the problem from challenge.

I have good friends in Libby, a community that has been victimized literally almost to the point of destitution by the environmental movement shutting down any logging or mining in the environs and I would argue have proximately harmed citizens from a psychological standpoint in a manner verging on criminal, indeed in a manner that I would think criminal if I didn't think various federal conspiracy charges to be inappropriate (see, e.g, Buddy Cianci who wasn't convicted of any underlying criminal acts there were supposedly part of the conspiracy to use the City of Providence as his own piggy bank, but was found guilty of the conspiracy...).

Certainly, this is a case where the nominal accused criminal was exploiting resources, rather than exploiting their preservation and, as such, it is a balanced approach to victims rights to disregard the fact that the defendant is not some street thug but a once respected paragon of the Libby industrial community -- and to accept the government's theory of the crime in asserting the PArker's right to attend the trial (absent a narrow showing that their testimony might be affected).

I really cannot suggest an awareness of the state of mind or approach of the highest echelons at Grace. However, I know that management employees on the ground in Libby who were part of that community have been swept up and charged criminally. I know one in particular was viewed as an integrated corporate citizens commanding the highest respect of many in Libby and that the case has torn the town apart, as if the depradations of the protectionists hadn't laid it waste enough already. This is a tragedy on many levels and Shakespeare might do it more justice than criminal prosecutions, although that is strictly my heresay view.

On the technical point, since there is a criminal prosecution, I think Paul is right that even though the indictment does not allege that the crime was harming the Parkers, but rather placing them at risk of harm, I think if the acts alleged did harm them that probably meets the literal test of the victims statute. But I don't think that dispositive of the question whether they are victims under the Crime Victims Act and I don't think that is precisely the point with which the judge disagreed.

Additionally there is the question of whether a prudential absention from applying that to a case where the actual harm is not the gravamen of the charge is the kind of thing that courts might do from time to time, esp. given that victim status could conceivably be claimed by an exceedingly wide range of people with more tenuous relationship to the case than the Parkers. Of course this might not be relevant to the extent that most of these more attentuated 2000 "vicitims" can't possibly be on the list of potential witnesses which contains 34 names.

Nor does the debate over actual disease in the Parker, remove the element that they may have suffered mental harm from being placed in jeopardy. I'm sure Paul and others are better aware of the precedent for the inclusion of mental harm alone in the category of harm contemplated by the victims rights act.

So then I read the judge's "short written order". He doesn't seem too happy regarding either the government's or Counselor Cassell's representations as to the law of the case. And if Paul considers a 20 page decision on this question a "short" order, that does leave open the question of intellectual hyperbole sneaking in.

But I read the whole thing anyway despite whether Paul's representation was an innocent mistatement or a disingenuous attempt to get me to open a .pdf I would never have clicked to add another half hour to my avocational investment if he had fairly characterized it. And [this] one finds that the debate over victim status takes place against the backdrop of an unusual theory of the crime undertaken to avoid the criminal statute of limitations, although the judge does not expound on precisely how this impacts consideration of the Parkers's circumstances.

The judge obviously recognizes the extent to which, in the charged environment of risk communication that itself could give rise to mental jeopardy, a loose theory of who is a victim would be imprudent and preciptous. I can't say in full whether I would find identically to the judge, but there do seem to be considerable equities supporting his outlook.


Additonally, there may be prudential or legal reasons to draw some other lines here about presumptions regarding the correctness of the government case. The simple examples in the judges order show that if a victim of a robbery is allowed to attend a trial and testify and ultimately the individual charged is exonerated, that does not necessarily mean that the person was not robbed (the judge actually says bank...).Here if the government loses the case, there is not necessarily evidence that there was a crime at all. That is a very significant point.

Furhter, is the court required to accept the scientific as well as legal theories of evidence in order to conclude victim status before they are established. The judge quite well illustrates this is not a question about presumption of innocence but goes to the question of whether one can really assume there was a crime on tenuous theories and then afford victims rights in advance of such a finding during the charged environment surrounding the proceedings to determine if there was a crime at all.

I don't take issue with the notion that they should view as true allegations that Grace deposited asbestos containing material on the property it then sold to the Parker's, but I question whether this duty to view evidence in favor of the prosecution includes accepting the inherent scientific proposition that this was the proximate cause of harm along with the bifurcated statute of limitations. To the extent that there is dispute of this question in an expert way, that would make EPA as likely the culprit in mental harm cases. After all isn't President Bush guilty of forcing people to drink arsenic because he rescinded absurd Clinton administration regulations? And weren't a lot of people highly agitated about that. Let's get him in the dock.

I tend to think the case for a crossover to physical harm stronger here, but I do see prudential and legal considerations that don't make victims in this case easily analogous to the plain class covered by the Victims Rights Act. There may also be prudential and legal reasons why you ought to extend them such status. I think one question that could have been considered is the burden the defendant would have sustained in offering an individual calculus as to each witness and why their testimony could be affected by attending the trial. You might have gotten to the same result while respecting the act although the time and expense for the defense, the prosecution and the court itself, offer considerations in opposition.

I will defer to experts,i.e. not Erin Brockavich, on statistical epidemiology on the proximate cause of the suffering pursuant to airborne asbestos exposure. My sense is that concerns about airborne asbestos are widely shared and bear scientific legitimacy, albeit the range of exposure concentrations and terms that can be reliably associated with the manifestation of asbestosis is probably not well established (which is distinct from EPA saying 'they can't announce a safe exposure' which is improperly taken to mean that any exposure no matter how small or shortlived is harmful or bears significant statistical potential for harm)but actual exposures are not really stipulated here. Only the deposition of asbestos bearing material. I don't think it is implausible that this lead to airborne exposure, but the question of how much and it epidemiological relevance isn't something to take for granted.

Paul's brief reports what is no doubt a statistically significant elevation of occurrence of asbestosis (40 to 80 times the rest of Montana and the US, can't tell if that is two numbers compared to two populations, e.g. the rest of Montana as distinct from the rest of the US. The range of the estimate leaves one to wonder the strength represented by sample size or other confounders but I haven't seen extensive discussion refuting the notion that this is an actual cluster)

However, to cast a skeptical eye, I think it is important to note that asbestosis is chronic inflammation, not to be confused with the manifestation of mesothelioma. Low level, i.e. wikipedia research, suggests asbestosis presents with shortness of breath, but not coughing, sometimes clubbed fingers (although the link for finger clubbing lists mesothelioma and not asbestosis amongst a list of lung diseases that could be causes). 50% of the time plaques are present in the parietal pleura In my limited understanding I couldn't say how one differentiates shortness of breath associated with asbestosis and other progressive degeneration of lung function, e.g. I get short of breath from exertion compared to earlier life experience because I don't exercise enough. I have had mild occupational exposure to asbestos in a lifetime of construction work, but it is the furthest thing from my mind to place the two ideas as coordinate.

There is no reference in any of these linked instruments as to the extent of pathology that presents and suggests a causative association. I don't wish to belittle what may indeed be highly aggravated and ebilitating cirucmstances that could indeed be asbestosis but these does seem to be another level of inquery or alternatively suspension of disbelief to establish a crime here.

I'm not expressing a high level of skepticism that asbestos bearing materials have been deposited by Grace in varying settings (I understand that their tailings were actually considered favorable fill during much of their tenure and sought after) The timing and extent of aerosol character that eventually obtained seems plausible enough, including some testiony at the UMT trial blog that the EPA project manager saw one of the Parker children throwing clods of surface soil at the side of the house to break them up. To take the medical history and associate it with certain symptoms in an objective, if not absoultist, framework does not to seem to be the subject of any of the many dissertations on the Parker's circumstances that jumped out of any of the links I read. I admit I did not read all 60 pages of Paul's Brief (guess maybe if you write 60 pages briefs you could call a judges 20 page order short). I thought I hopped to relevant subheads, but it could be in there and I missed it.

This whole set of circumstance and approach to this tragic community makes this seem a close question to me. I respect Paul for strong advocacy on the general point but pragmatic and legal considerations militate for good devil's advocacy in opposition to his position. I trust this may be appreciated in that spirit.

Sorry for the thesis.

Brian