Who Are "Victims" of Environmental Crimes? Ninth Circuit Fight Brewing in the W.R. Grace Prosecution:

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.

Briefs All Filed on "Crime Victim" Issue in W.R. Grace Environmental Case:

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.

Crime Victims Win in the Ninth Circuit:

The Ninth Circuit has justed entered an order, found here, granting the crime victims petition for a writ of mandamus in the W.R. Grace prosecution in Montana. At the same time, however, the court sent the case back for more particularized findings on whether or not the victims' testimony would be affected by watching the trial. So it looks like further proceedings will happen in Missoula.

It's disappointing that the Ninth Circuit didn't provide more information about why it reached the conclusion it did. This is an important question that will recur in many other cases.