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Asbestos acquittal: It's the judge's fault

From AP:

"This is a joke and a travesty of our justice system. This judge should be impeached," said Brent Skramstad, who lost his father, Les, to mesothelioma in January 2007.

Supporters of the criminal prosecution of W.R. Grace and its former executives in Libby, Montana, have decided it's U.S. District Court Judge Donald Molloy fault. From the website of Andrew Schneider, a former investigative reporter for the Seattle Post-Intelligencer, which made the Libby asbestos story a cause celebre, "Jury acquits W.R. Grace of all criminal charges. Many wonder how it happened."

The verdict, joyful to some and painful to many, was no surprise. Most of the observers in the court gallery expected, at the most, a guilty verdict on only one of the eight counts, such as obstruction of justice.

The heavy charges of conspiracy and knowing endangerment that carried long prison sentences were taken out of play early as Molloy imposed repeated restrictions and limitations on what evidence and witnesses the prosecution could use.

"It's unfortunate that so much evidence was withheld from the jury by the district court's evidentiary rulings, including some of the most compelling internal memos written by W.R. Grace officials about the harmful effects of their mining operations," said David Uhlmann, who led the U.S. Justice Department's environmental crime section when the Montana U.S. Attorney's office sought to bring the charges in this trial.

More on Molloy's response to the prosecutors' handling of the case in this AP piece, "Analysis: Prosecutors Struggled in Grace Trial."

The Washington Post also turned to Uhlmann as a source of its Saturday story, "W.R. Grace Acquitted In Mont. Asbestos Case":

"So much of the last three and a half months has been dominated not by the lawyers for the government or the defense, but by the district court and its rulings," said Uhlmann, who approved the indictment against Grace when he worked in the federal government. "That's the story within the story here. . . . The verdict is a fair reflection of the evidence that jurors were allowed to hear. But the question that hangs over this case is what would have happened if the government were allowed to present all of the evidence that it had amassed in this multi-year investigation.

Seems tautological: The case would have been different if the case had been different.

Uhlmann, obviously not a disinterested party, notes one potential factor that crossed our inside-the-Beltway mind, too: "In the aftermath of the Ted Stevens dismissal, any errors by prosecutors, particularly when it involves discovery violations, become a big deal."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.