Yesterday the criminal trial of the W.R. Grace & Co. and various responsible corporate officers began in U.S. District Court in Missoula, Montana. The trial is one of the most-watched environmental prosecutions by the Justice Department in recent memory, as it involves allegations of release of asbestos into Libby, Montana over the last several decades. Law professors and law students at the University of Montana School of Law are running this very interesting blog tracking the trial.

An extremely important crime victims' rights issue has come up during the case, which will be resolved this week by the U.S. Court of Appeals for the Ninth Circuit: Are persons who have been endangered by an environmental crime sufficiently "harmed" to obtain rights under the Crime Victims' Rights Act?

According to the indictment, over more than three decades, defendant W.R. Grace & Company mined vermiculite ore containing asbestos and released asbestos into the air around Libby. The indictment alleges a conspiracy to knowingly endanger persons in Libby as well as several substantive endangerment counts under the Clean Air Act, 42 U.S.C. § 7413(c)(5)(A).

The Crime Victims' Rights Act extends its rights to all "victims" of federal offenses, which it defines as persons "directly and proximately harmed as the result of the commission of a federal offense." 18 U.S.C. § 3771(e). In a pre-trial ruling, however, the U.S.District Judge presiding over the trial concluded that the charges involved mere "risk of harm" rather than "harm" itself. The district court stated in a short written order that the charges involved exposing the witnesses

to an imminent risk of harm. The [Crime] Victims' Rights Act, on the other hand, defines a crime victim as "a person directly and proximately harmed." . . . One plausible resolution of the issue here is to say that the federal offenses alleged in the Superseding Indictment have "victims" who have been exposed to an imminent risk of harm, but who have not necessarily been harmed. This interpretation leads to the conclusion that because victims of the federal offenses alleged are not necessarily harmed, they are not necessarily victims under the Act, which are by definition person directly and proximately harmed.

I am representing two residents of Libby, Montana, pro bono on this matter — Mel and Lerah Parker. This morning I am filing in the Ninth Circuit a petition for a writ of mandamus for them arguing that the district court's ruling was erroneous. Here is a summary of my argument:

The district court's conclusion threatens to strip crime victims of their rights in a whole host of federal criminal proceedings and should be reversed for three separate reasons.

First, the Superseding Indictment alleges that the Parkers have been placed in "imminent danger of death or serious bodily injury." Being placed in grave danger is, ipso facto, a harm sufficient to trigger the protections of the CVRA. Any other conclusion would mean that there would be no "victims" of a whole host of federal offenses that involve threat of injury rather than actual physical injury, including not only the most serious environmental crimes but other federal offenses such as attempted murder, drive-by shooting, assault, child endangerment, and mailing of threatening communications. These offenses are not "victimless" crimes because they create fear and other emotional injuries. The Parkers have been harmed by the defendants' crimes because of the obvious psychic harm stemming from being placed in the shadow of imminent death and serious bodily injury. Moreover, in this case the Parkers have suffered very tangible harm from being forced to undertake medical monitoring to detect any asbestosis that might develop. For reasons such as these, this Court has already held that a person who is knowingly exposed to a hazardous substance has been harmed. United States v. Elias, 269 F.3d 1003, 1021-22 (9th Cir. 2001).

Second, even if physical injury were a necessary precondition for the Parkers to claim their rights, they have suffered physical injury. Tragically, they both have asbestosis -- a clear physical harm that the district court simply ignored in denying them "crime victim" status.

Finally, for several years it has been the "law of the case" that the Parkers (and other victim-witnesses like them) were protected by the CVRA. Shortly before the trial, the district court abruptly changed their status by concluding that they were not protected victims under the CVRA. The district court violated the "law of the case" doctrine in reversing course without any good reason for doing so.

The Justice Department has also filed its own petition for a writ of mandamus.

The CVRA requires a decision by the Court of Appeals within 72 hours. Presumably, then, the Ninth Circuit will hand down a decision on this issue by Friday. Its ruling will presumably be quite important in establishing who can claim the protections of the Crime Victims Rights Act. More information can be found here.