MISSOULA — Defense lawyers in the W.R. Grace & Co. trial allege a key government witness had an undisclosed immunity agreement with prosecutors and they want to know if other witnesses have similar agreements.
The arguments came Monday after the jury was excused in the environmental crimes trial against Grace. The Columbia, Md.-based chemical and building materials company and five former company executives are charged with a federal conspiracy involving Clean Air Act violations and obstruction of justice.
“I think the fundamental integrity of this trial has been irreparably tainted,” Thomas Frongillo, who is representing former Grace executive Robert Bettacchi, told U.S. District Judge Donald Molloy.
The allegations emerged during the testimony of Robert Locke, a former Grace executive who testified that he helped the company’s executives suppress government studies about the health hazards at Grace’s vermiculite mine in Libby.
Under questioning from prosecutors, Locke said he was offered immunity in exchange for the testimony, but turned down the agreement, saying he wanted “to do the right thing.”
Defense attorney David Krakoff said a letter from special agent Robert Marsden urged the corporate insider to reject the immunity offer because it might damage his credibility with jurors. Other documents assure Locke that he wouldn’t be prosecuted based on his testimony, Krakoff said.
“This witness has effectively been given transactional immunity because with a wink and a nod, this gentleman understood exactly where he stood with the government,” Krakoff said.
Molloy scheduled a hearing Friday to hear arguments about whether prosecutors had working relationships with other witnesses, and to determine if Locke’s testimony should be stricken from the record.
Defense attorneys allege the revelation of additional agreements could affect how the remainder of the trial unfolds.
“If other witnesses have been tainted, then we need to know that, too,” Frongillo told Molloy.
David Bernick, lead attorney for Grace, said Locke has a personal ax to grind because he was fired from the company and later filed a lawsuit.
Bernick asked Molloy to compel prosecutors to turn over any recorded communications between investigators and witnesses to determine the scope of the alleged misconduct.
Assistant U.S. Attorney Kris McLean apologized to the court for not disclosing the information sooner, but said it was an unintentional oversight, not a calculated omission. McLean noted the defense still has the opportunity to cross-examine Locke.
“We will endeavor to show the court the other side of the story at the hearing on Friday,” McLean said.