April 28, 2009 in City

Grace judge slams prosecutors

‘You don’t understand the evidence yourself,’ he says; one executive’s charges dismissed
Susan Gallagher Associated Press
 

MISSOULA – The federal judge considering motions to dismiss charges in the W.R. Grace asbestos case told prosecutors Monday that they “presented discombobulated allegations and you don’t understand the evidence yourself.”

U.S. District Judge Donald Molloy did not rule immediately on the defense motions for dismissal of charges against Grace and several former executives.

But acting on a motion from the prosecution, he did dismiss charges against one former executive, Robert Walsh. Prosecutors said they lacked evidence to continue their case against Walsh.

The government had alleged that Columbia, Md.-based Grace and five former executives concealed health risks posed by asbestos-laced vermiculite from a northwestern Montana mine that closed in 1990. Lawyers for some residents of Libby say asbestos has sickened about 2,000 people in and around the community, and killed about 225.

Molloy raised the possibility of declaring a mistrial in the case, which has been before a jury for two months. Jurors, absent during the hearing Monday, were due back in court today.

The judge said he mistrusts the testimony of a key government witness, Robert Locke, a former Grace executive who testified that he helped the company impede a government study of health issues related to the mine near Libby. “Do you want to have these jurors convict someone on perjured testimony?” Molloy asked. “We don’t believe it’s perjured testimony,” said Assistant U.S. Attorney Timothy Racicot.

Another federal attorney, David Cassidy, said that Locke’s testimony was “more consistent than inconsistent” and that documents corroborate much of it.

Molloy raised questions about the number of meetings between Locke and the prosecution team, noting there were many more than the six that jurors were led to believe had occurred.

“You’re playing games with the jury,” the judge said.

He also said that “probably hell would freeze over” before he and prosecutors would agree on whether Locke lied.

Assistant U.S. Attorney Kris McLean tried to refute judicial suggestions that his witness questioning was crafted to mislead the jury. “I’ve been in front of you for 13 years, and I’ve never done that,” McLean told Molloy. “I wasn’t doing anything different here than I’ve done in the other trials – 40, 50, 60 trials.”

Grace lawyer David Bernick said the case has been litigated for political reasons, aimed at advancing the agenda of the U.S. Environmental Protection Agency, which oversaw years of environmental cleanup in Libby.

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