Grace Trial Prosecutors Accused of Prosecutorial Misconduct

MISSOULA, Mont. – In what has been called the corporate pollution trial of the century, government prosecutors in the trial of five former W. R. Grace Company executives are facing a defense motion for dismissal that is accompanied by defense allegations of prosecutorial misconduct, including the suborning of perjury.

The former Grace executives are all being tried on criminal charges of allegedly conspiring to conceal the fact that the chemical manufacturing giant Grace was “knowingly” and “willfully” violating provisions of the nation’s Clean Air Act by exposing its workers to vermiculite asbestos at its Zonolite Mountain mine near Libby, Montana. Asbestos is a known cancer causing agent and hundreds in Libby have since died of asbestos-related disease while over a thousand have been sickened by the toxic mineral. If convicted, the former Grace executives could each face up to 70 years in prison.

Asbestos is a naturally occurring silicate mineral that is nearly fireproof, has superior resistance to harsh corrosives, possesses excellent insulating properties and more. Because of its numerous desirable qualities, industries around the globe used the material in countless products for commercial or individual use. In the early 1970s, however, it was medically confirmed that the inhalation of microscopic, airborne asbestos fibers could lead to serious diseases, including the deadly lung cancer known as malignant pleural mesothelioma. The government alleges that Grace executives and other employees knew full the dangers of asbestos, but elected to put profits ahead of its workforce’s safety.

Proving the government’s allegations hasn’t been easy, and some legal experts say the prosecution’s case is falling apart at the seams. Since the beginning of the trial in February, government prosecutors have faced a barrage of evidence limiting and other motions presented by the former executive’s defense attorneys, and to date, Federal Judge Donald W. Molloy, has repeatedly sided with Grace lawyers while publicly expressing doubts about the legitimacy of the government’s case in chief, having stated on several occasions that he sees “little evidence of a conspiracy”, which is the government’s predominant charge.

In the past few weeks, the government’s position has gone from bad to worse. On April 16, 2009, Grace defense lawyers filed a motion with the court that asks Judge Molloy to dismiss the case due to what defense lawyers characterized as a pattern of “repeated and intentional” misconduct by prosecutors that includes the allowance of perjured testimony. “We now know that the government deliberately solicited testimony from key witnesses that its own agents have conceded to be false,” reads part of the motion that further states, “The government’s malfeasance is not isolated, but pervasive.”

Grace Defense lawyers point specifically to the prior testimony of Robert Locke, a former and disgruntled Grace employee who Judge Molloy characterized as “probably a liar.” Locke is one of the government’s key witnesses and has, to date, furnished the government and trial jury with conflicting information about certain aspects of Grace’s vermiculite mining operation – conflicting information defense lawyers are labeling as perjury. Judge Molloy had more bad news for government prosecutors this past Thursday when he excluded from evidence dozens of prosecution exhibits — including internal Grace Company memorandums the government was relying on to help prove their case.

In his written decision to bar the evidence, Molloy made it clear that he no longer trusted prosecution lawyers to adhere to the cannons of ethical behavior. “The government’s practice of presenting incomplete proof calculated to exclude all evidence adverse to its litigation position”, states Molloy, “while permissible as a trial tactic, does not induce confidence that the government will eschew the opportunity to argue misleading inferences,” concluded the judge.

The government had planned to rest its case next week, but it must now await Molloy’s decision on the charge of official misconduct, as well as the court’s ruling on the defense motion to dismiss the case outright for lack of evidence.

Free Information Packet on Mesothelioma

If you would like to receive a FREE information packet on mesothelioma**, or if you have a comment or question, please complete the following:

**(Packet includes information on treatment, clinical trials, cancer links, how to access legal and financial resources, and frequently asked legal questions with answers provided by Cooper, Hart, Leggiero & Whitehead, PLLC). By filling out the above form you consent to being contacted by Cooper, Hart, Leggiero & Whitehead regarding potentially retaining legal services.