The Libby verdict: Prosecutors make a fatal mistake

Aricka Flowers May 21, 2009, 1:00pm



As the people of Libby, Mont., come to grips with a jury's decision to acquit chemical company W.R. Grace of knowingly endangering their lives, legal experts are analyzing the process that led up to the controversial verdict.

One of the first issues to surface in analysis of the case is the prosecution's handling of testimony by Robert Locke, a former W.R. Grace employee, who was acting as a whistleblower of sorts.

Locke, the prosecution's star witness, lost much of his credibility with the judge and jury shortly after testifying that Grace executives not only knew about the asbestos and its negative effect on the health of Libby residents, but also tried to hide it.

Evidence quickly surfaced that Locke's interaction with the prosecution was severely understated in discovery, which ultimately helped destroy the government's case.

"I think the prosecution made a significant mistake in the discovery of Mr. Locke's testimony," said David Uhlmann, professor and director of the Environmental Law and Policy Program at the University of Michigan Law School. He led the U.S. Justice Department's environmental crime section when the government decided to bring charges against Grace. "It was a particularly bad mistake because even before they realized they had not included things, the judge was already skeptical of Mr. Locke."

As a result of the new evidence, U.S. District Judge Donald Malloy dismissed most of Locke's testimony and shrouded what was left of it in a cloak of doubt, stating that the witness had come "as close as I would ever want to see to perjury."

In the April order, Malloy had harsh words for the prosecution when it came to the Locke snafu, but stopped short of stating the omission was premeditated.

"These themes of poor planning and incompetence are common threads throughout the government's spotty compliance with its disclosure obligations dating back to the beginning of the case," Malloy wrote. "However, incompetence is not bad faith. Poor planning is not malice. A systemic flaw is not always flagrant conduct. And the damage, while serious, is not irreparable. The behavior of the prosecution is troubling and at times frustrating, but the record does not support a finding of prosecutorial misconduct. What is clear from the record is that the government's conduct creates a climate in which the Defendants' constitutional rights are at risk, and the Court's role of ensuring the fair administration of justice is complicated."

The mistake apparently was a fatal one, causing Tim Ranciot, an assistant U.S. Attorney to tell Malloy, "The truth of the matter is that we just dropped the ball."

Though the ball was dropped, Uhlmann agrees with the judge's assessment that the action was not deliberate.

"The information should have been produced sooner than it was; there is no question about that," Uhlmann said.

"They apologized and did everything they could to make the situation right. Then questions were raised about whether the mistake was intentional or inadvertent. To his credit, the judge answered those questions, even though he was highly critical of the prosecution in the courtroom, in his order. He said it was not intentional and that they were incompetent.

"But the prosecution turned over thousands and thousands of pages of evidence; and the emails with Locke didn't seem like they were really that important, so they didn't add them. I don't think it was incompetence. It was just a mistake, and a very unfortunate one."

Some people are not so sympathetic in their assessment of what went wrong in the Libby prosecution.

The prosecution's larger problem fell in proving parts of the indictment that alleged the company knowingly defied the Clean Air Act, some legal experts say. One charge alleged that Grace executives deliberately endangered the people of Libby and their staff before 1990, when the Clean Air Act became law, and continued to do so after that time.

This was tricky to prove because Libby closed the mine in 1990. Due to a statute of limitations, the prosecution also had to prove that the behavior continued after 1999, five years before the charges were filed against Grace.

A Chicago asbestos defense attorney who closely followed the Libby trial said he thinks the government government should have taken action against Grace years ago; and since it didn't, there were problems when it finally did.

"There were many things wrong with the prosecution, but the simplest point is that it was preposterous for the government to claim an extended 'cover-up' when in fact there were published scientific papers about Libby and disease in the 1970s, and by the mid-1980s, plaintiff's expert Barry Castleman had devoted a subsection of his book to Grace, the Libby mine and internal Grace documents about Libby," said Kirk Hartley, a partner at Butler, Rubin, Saltarelli & Boyd.

"Simply put, government personnel had to put their heads in the sand, so to speak, in order not to know what was happening in Libby."

There also has been speculation that the prosecution was considerably outnumbered by W.R. Grace's large legal team. It has been reported that the prosecution had less than a dozen people working the case between support personnel, investigators and attorneys.

Meanwhile, Grace is said to have had at least 50 people working on the case who served the courts with motions and briefs on an almost daily basis. Still, some say that should not be a consideration when discussing the possibility of prosecutorial misconduct in the Grace case.

"There is no question the prosecution was badly outnumbered," said Uhlmann. "But that doesn't necessarily mean much because the government is usually outnumbered in these white collar cases; yet, generally, they do well. I think there was a real dynamic in the courtroom with the judge and Grace had resource advantages over the government. But it's too easy to chalk up the prosecutorial misconduct claims to resource imbalances alone."

In the analysis that has followed the Libby case, Uhlmann believes the prosecution is getting a bum rap.

"There has been some suggestion, in the articles I've read, that the prosecutors were outclassed or didn't do a great enough job," he said. "That's not what happened here. In the best of circumstances this was a hard case to try. They worked very hard for three years on this case and the prosecutorial misconduct issues are what they regret the most."

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