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Not Guilty Verdicts in the W.R. Grace Prosecution:

The Justice Department just suffered a huge loss up in federal court in Montana. The jury just returned not guilty verdicts on all counts as to all defendants in the W.R. Grace environmental prosecution, which alleged that the company and some of its top corporate officers had knowingly endangered the residents of Libby, Montana through release of asbestos. A summary of the arguments to the jury can be found here on this excellent blog run by the University of Montana School of Law.

an outside observer:
Big news for those in Libby, but also noteworthy is how this represents another instance of a high-profile prosecution where the Dept of Justice attorneys appear to have grossly mishandled their case and ethical obligations to the defendants (a la Ted Stevens and the public integrity section). More than once, Judge Molloy took the prosecutors to task for their improper actions. See here and here.

The missteps in the W.R. Grace and Stevens prosecutions are separate and probably isolated instances, but I still hope the AG takes notice that something sure seems wrong inside the DOJ.
5.8.2009 3:39pm
Jim at FSU (mail):
A link to a blog about the case I found off Google.

http://blog.umt.edu/gracecase/
5.8.2009 3:46pm
Reduplicator:
A link to a blog about the case I found off this very post.

http://blog.umt.edu/gracecase/
5.8.2009 3:50pm
Jim at FSU (mail):
Crap, I didn't see the hyperlink. Sorry.
5.8.2009 3:55pm
rosetta's stones:

The missteps in the W.R. Grace and Stevens prosecutions are separate and probably isolated instances, but I still hope the AG takes notice that something sure seems wrong inside the DOJ.


I'll anecdotally throw in Ashcroft's showboat here in Detroit, with that first terrorist trial, and the prosecutor was brought up civilly I believe, for misconduct. He got off, but still.

This is just Beltway showboating, imo. Asbestos, the terrorists, Stevens, Microsoft, I believe they had that in their grasp. And all the special prosecutor circus over the decades.

Maybe now that Holder is in, he'll get this right. Can't do it any worse.
5.8.2009 4:12pm
Terrivus:
Maybe now that Holder is in, he'll get this right. Can't do it any worse.

Really? The administration has vowed to crack down on persons and companies who don't pay, in its words, their "fair share" of taxes. Get ready for some mind-bending uses of the criminal code to go after a few high-profile individuals or organizations in order to make an example of them.

Every administration has its own agenda and its own creative ways of pursuing them through prosecution. And invariably, several years down the road, they don't amount to much -- except lots of time, expense, and agony for those who are the targets of them.
5.8.2009 4:24pm
Cornellian (mail):
Reminds me of that Law &Order episode where someone asks the prosecutor, Jack McCoy "isn't justice the object?" McCoy replies "no, victory is the object, justice is the by-product." Perfectly encapsulates the prosecutor's mindset.
5.8.2009 4:54pm
levisbaby:
Let's see - W.R. Grack knew for decades that exposure to asbestos caused disease yet the Libby plant expelled so much asbestos into the air that it fell like snow flakes on the town.

No crime there. Move along.
5.8.2009 5:36pm
Jane (mail):
I litigated a case against WR Grace - actually a closely tied subsidiary, for over 7 years. They had a wonderful, skilled and honest lawyer on the other side, but the company itself was perhaps the most dishonest defendant in a civil case I ever dealt with. "Slime" would be too nice of a characterization.
5.8.2009 5:55pm
Soronel Haetir (mail):
Prof Cassell,

So much for your clients' compeled victim status.
5.8.2009 6:44pm
Jim Rhoads (mail):
Let's see - W.R. Grack knew for decades that exposure to asbestos caused disease yet the Libby plant expelled so much asbestos into the air that it fell like snow flakes on the town.

No crime there. Move along.


I suggest that it is pretty hard for a prosecutor to lose a jury trial against a pollutant spewing company in the same jurisdiction where the pollution happened and the company is a big out of state corporation.
5.8.2009 7:05pm
Volokh Groupie:
I wonder if Prof. Adler will post about the decision to follow the previous administration's stance on the designation of polar bears under the ESA. I imagine that this doesn't bode well for the arctic walrus.

Polar Bear ESA decision
5.8.2009 8:36pm
Fencer (mail) (www):
As usual, the defense didn't win, the prosecution lost. This should have been a slam dunk, but they got too cute.
5.8.2009 9:46pm
Soronel Haetir (mail):
What I especially love is how the UM blog site has been down most of the day.
5.8.2009 10:12pm
Jim Rhoads (mail):
I couldn't agree more, Fencer. Which is the way it usually is, BTW, in my experience both prosecuting and defending. Getting all of the elements of a crime proven beyond a reasonable doubt generally carries a greater degree of difficulty than shooting a rifle at one or two of he weakest links in the chain -- the job of a good defense lawyer.
5.8.2009 11:35pm
devil's advocate (mail):

I suggest that it is pretty hard for a prosecutor to lose a jury trial against a pollutant spewing company in the same jurisdiction where the pollution happened and the company is a big out of state corporation.


To listen to environmentalists, every home in American is a pollution spewing industry. Rhode Island did get a jury to civilly 'convict' companies for selling paint, but I don't think most folks are buying it.

After all, when you look in the mirror, these companies are us. They make what we want. Their ancillary sensitivity to the community in which they operate, or alleged lack thereof, has undergone a necessary reappraisal. But the ethos displayed in the past was against a backdrop where individuals generally exercised similar regard for the surroundings. You dumped waste oil in the sewer, or better yet on the dirt roads to keep the dust down!

These kinds of prosecutions (and lawsuits) are about rate of change, about whether industry should have lead the change rather than followed. They balance real time management decisions in this arena against Monday Morning Quarterbacking. It's not that the process has nothing to teach, nor that comparative knowledge can never make a firm negligent or culpable despite generalized acquiescence in its conduct. But I just don't buy the evil company-good citizen dichotomy.

The blog appears to be gone,it wouldn't load last night and has no content this morning, so I can't react to the arguments or other descriptions of the government's case. I can say that the people I knew in Libby did not think of themselves as victims of industry. They viewed themselves as participants in industry, so indicting Grace was indicting themselves.

Even where you had serious health effects, and I don't know the extent to which that is true, Libby works in logging and mining and is used to having the impacts of the those industries routinely overstated to the community's own detriment. So it wouldn't surprise me if the government overplayed its hand, as several commentors seem to say, that a jury of Libby peers would be skeptical.


They had a wonderful, skilled and honest lawyer on the other side, but the company itself was perhaps the most dishonest defendant in a civil case I ever dealt with.


Jane

There seems a bit of a disconnect here. If Grace's legal strategy was essentially unethical, as you allege, how do they retain and maintain an honest lawyer on their side?

What style or context of mendacity amounts to "slime" being the polite label and this lawyer sticks around. What kind of behavior are you criticizing here?
5.9.2009 7:12am
Jane (mail):
devil's advocate,

I actually agree with you about the disconnect. He manage to be the conduit and deliverer of their dishonesty, never getting himself involved enough to be tainted. It's not unusual for lawyers to be skilled at ignoring reality but rather dealing with selective delivery. In fact that is an essential skill if you are on the wrong side of the facts. He just did it with incredible aplomb.
5.9.2009 8:52am
rosetta's stones:

It's not unusual for lawyers to be skilled at ignoring reality but rather dealing with selective delivery.


Good to hear a lawyer acknowledge this, and probably the reason people view lawyers as they do.
5.9.2009 10:18am
Jim Rhoads (mail):
These kinds of prosecutions (and lawsuits) are about rate of change, about whether industry should have lead the change rather than followed. They balance real time management decisions in this arena against Monday Morning Quarterbacking. It's not that the process has nothing to teach, nor that comparative knowledge can never make a firm negligent or culpable despite generalized acquiescence in its conduct. But I just don't buy the evil company-good citizen dichotomy.

I agree with your analysis, da. But often, the citizenry does not always understand this, and many defendants don't take this rational approach, preferring a more "scorched earth" defense.

My observation was intended to express what I see as reality. Not what I think is the way it should be.
5.9.2009 2:06pm
Jane (mail):
"Good to hear a lawyer acknowledge this, and probably the reason people view lawyers as they do."

You are probably right. However sometimes the lawyer's job has more to do with protecting the constitution than protecting the person. The person is just the beneficiary. If you think about it, you want it that way.

Read "A civil action" which is the story of WR Grace and how their actions caused an enormous increase of cancer in Woburn MA. It's a fascinating book, and a much less fascinating movie.
5.9.2009 6:42pm
Terry Trent (mail):

Forget the prosecution's misconduct....which did exist.

It is EPA's misconduct on the subject of "asbestos" across America!! EPA brought the case at the head of a lynch mob started by one author writing a book adn numerous newspaper articles, that had very little clue as to what had happened or what teh science of he subject is. And a hand full of pitch fork wielding Libby residents. All held together by a glue fabricated by EPA's erroneous and misleading philosophies.

The Prosecution never had a chance even if they had acted properly. And what is really scary, is that there are dozens of other "asbestos" sites across America, where death rates vary (the largest by far is Jefferson County Louisiana...Libby was third only). All of them containing people that are as equally mislead by EPA and ATSDR as Libby residents are.
TTrent
5.9.2009 7:05pm
devil's advocate (mail):
TTrent


It is EPA's misconduct on the subject of "asbestos" across America!!



I am equally skeptical of EPA, and would argue they are often culpable as regards any mass psychogenic effects that cause harm to purported 'victim' populations.

I posted a rather extensive thesis in this regard on Paul's Victims Rights post on this same case. Being as many of you were so kind as to read my post on this thread and to respond, I shall not quote at length my asbeskepticism, but summarize briefly that my understanding is that serious occupational exposure to airborne asbestos has been linked to health results. Nothing in Paul's brief on behalf of specific proposed victims indicates the relationship of the exposures in this case to any reliable evidence of effect. You can't prove the negative of course, but there appears no effort to prove the positive.

HAve no idea the extent to which this was a problematic aspect of the government case, vs. the knowledge of proved health effects and the proximate knowing and negligent contribution to them of the individuals charged. (the Yniveristy of MOntana site remains dead - i.e. contentless)

However as regards victim status I will quote a snippet of my post [sock puppetry alert] that raised concern about how you can have victims when there is, as yet, no known crime:



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 . . . . Here if the government loses the case, there is not necessarily evidence that there was a crime at all.


Of course wait for the double jeopardy of the civil case coming down the pike.

Jane,

Thanks for your response. Are you unable to share with us any sense of what this kind of scorched earth questionably ethical approach actually is.

Jim Rhoads

So the dichotomy we are speaking of is maybe a pragamatic and principled disconnect. I wish that it was likely that juries would detect attempts to drive public policy through prosecution and could better place themselves in the role of corporate managers in attempting to determine whether the actions were reasonable in context and that this could inform a criminal jury — and a civil one for that matter.

I wish that judges would insist upon and facilitate such an approach. But that is not the course of American jurisprudence — especially as relates to environmental epidemiology. So I don't necessarily blame companies for hardball tactics, I respect it when they are up against Erin Brockavitch (sp?) types. most of them usually cave and settle and this sets the precedent capitalized on in copycat prosecutions and civil actions.

National Grid bought a local gas company here in Rhode Island and ended up owning the defendant's role in a lawsuit over materials deposited in 1905 by a precursor to a precursor of this corporate entity that manufactured lamp gas from coal and may have deposited the spoils on the lots in question.

No one ever showed any health effects and the so-called Republicans running our so called government here would tell me when I expressed skepticism on the question of health effects about how intransigent the company was being. Right, so you want to put an IV into their bank account and they are supposed to be all sugar and spice. (that said, National Grid eventually did settle on the eve of trial, and their clear commitment to a less than sympathetic approach no appeared to have leveraged a better result for them in my following of the case.)

So,Jane, in the Grace case, are we talking about looking into the personal habits of defendants that might have contributed to their complete state of health. Are we talking aggressive use of the corporate shield or shells. Are we talking instructing corporate employees to be evasive or less than fully cooperative in deposition. Are we talking destroying documents that were under some kind of presumption of preservation. What kind of 'slimey' behavior are we talking about. (all need question marks of course ?????, put them in where required. Suddenly I feel like e.e.cummings)

Brian
5.11.2009 10:31am
Terry Trent (mail):

At this web site you can find the jury instructions given to the WR Grace jury: http://www.mtb.uscourts.gov/mtd/images/1187.pdf

They are interesting in and of themselves, but there are some serious highlights. Notably is the Judge picking on EPA, which is not nearly enough, but it is a good start. Also notable are the instructions that indicate if scientific aspects are published, then EPA is "informed". Part of EPA's complaint against Grace was that Grace had not informed the government. However, in the 1980s Grace had caused an epidemiological study to occur that was published. Dozens of other publications prior to 1999 were caused by WR Grace on the subject. (It is no small irony that the World Health Organizations had previously tasked America with the responsibility to investigate Tremolite, which our government never did. But WR Grace did).

Although it does not become immediately clear from these instructions alone, what the answers are to the lingering questions such as Big money on trial, Lousy jury, Bad judge, Bad instructions, Disappointing verdict etc etc etc ad nauseam, I can tell you that all roads to clarity pivot around one single scientific/regulatory fact. That fact is that EPA declares all fibers are equal........The science shows Tremolite 500 to 770 times more toxic...EPA refuses to acknowledge the difference and has for 38 years. If Libby Montana had been Chrysotile asbestos, one would expect 1 mesothelioma, a handful of asbestosis cases among the workers and a handful of lung cancers caused by "asbestos" among the workers. Instead we get an environmental epidemic with 225 dead so far and deaths expected for the greater part of the next 100 years. All roads lead to this single concept and the criminal in many cases, refusal of EPA to adopt regulatory practices to meet the risk.
TTrent
5.11.2009 1:31pm
devil's advocate (mail):
TTrent

funny how when it is convenient environmentalists can split a species into almost infinite subspecies, but when it came to asbestos it was such a convenient regulatory boggeyman that they refused to make any such subtle distinctions. I can only assume that is because their regulatory ambit would have been so largely circumscribed.

Absolute power corrupts absolutely.

Are you saying, since I don't have the facts at my disposal, that the particular fibers distributed in and around Libby should have been recognized as more dangerous or not? That is what it seems in context.

Brian
5.11.2009 6:15pm

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