I blogged recently about the W.R. Grace criminal trial, which started this Monday. As alleged in the indictment, the case involves crimes of "knowingly endangering" the residents of Libby, Montana. The district judge has ruled that these knowing endangerment crimes do not produce "crime victims" because they do not produce actual harm, only threatened danger. Accordingly, the victims could not exercise the right of crime victims to attend the trial, but instead were sequestered as witness.

Yesterday the defense filed their brief in the case. This excerpt gives a feel for the defense argument:

This case, however, is anything but run-of-the-mill, and it perfectly illustrates the dangers of departing from the hornbook rule that the CVRA's application to pre-conviction proceedings must be determined from the factual allegations in the indictment. That is so in part because the freestanding, postindictment allegations of harm made by Petitioners depend on complex scientific and medical judgments that are strongly disputed by Defendants—who will at trial vigorously challenge the Government's assertion that their alleged conduct endangered any alleged victim of the charges at issue in this case. But it is especially so because the indictment utterly fails to specify both the particularconduct upon which its broadly framed charges are based and the particular individuals against whom the alleged offenses were committed, and because the statute of limitations sharply circumscribes the extent to which the indictment's few particulars support chargeable criminal offenses in the first place.

The district judge also filed his own response to the petition, which argues:

I am absolutely convinced my pretrial ruling, based on the issues and complexity of the case, was correct. . . . In light of the testimony of the eight witnesses who have testified I have no doubt that if any of the witnesses is allowed to sit in the courtroom to listen before testifying, it will significantly impact the ability of any of all of the defendants to cross examine witnesses to point out lack of memory, bias, confusion, and any other matter inherent to the notion that cross examination and confrontation are the crucible in which the truth must be tested.

I filed a reply contending that:

knowing endangerment charges have "victims" within the protections of the CVRA. Many federal criminal offenses are defined in terms of "endangerment" or "risk" -- including the most important environmental crimes, attempted murder, drive-by shootings, assault, stalking, child endangerment, mailing threatening communications, and a whole host of other crimes where the essence of the offense is placing a person at risk physically, psychologically, or economically. These crimes are not by any stretch of the imagination "victimless" crimes -- particularly given Congress' "intentionally broad definition of 'victim' [in the CVRA]."

The Government has also filed a reply along similar lines.

The Ninth Circuit is working under the 72-hour decision requirement of the CVRA. Thus, it has to rule by tomorrow (Friday) evening. Its decision could be quite important in setting the boundary of who qualifies as a protected "crime victim" under the Crime Victims' Right Act.