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Libby follow-up, clamoring for continued prosecution

Andrea Peacock is a vociferous anti-W.R. Grace writer and she's writing in the hard-left Counterpunch, but her analysis of last week's jury decision in the U.S. District Court criminal trial of Grace and its former executives still contains interesting detail about the defense and prosecution arguments. The column is "No Justice for Libby." The second headline is, "Corporate Poisoners Walk in Sickening Verdict," so you get the drift.

Peacock now proposes state prosecution of Grace for criminally negligent homicide. One Libby activist, Norita Skramstad, whose husband Les died in 2007 of mesothelioma, reacts: "I think we'll just go on with our lives," she says.

A useful reminder: W.R. Grace reached a settlement with the EPA to pay $250 million for a Superfund clean-up of Libby and has proposed a $2.4 billion asbestos trust fund as part of its Chapter 11 reorganization.

There were many reasons criminal charges should not have been brought or allowed to continue by the 9th Circuit.

As my employers at the National Association of Manufacturers had argued, the prosecution could be seen as "collapsing the bright line between legal and illegal conduct and reducing the quantum of criminal intent the government must prove to secure a conviction." The NAM, American Chemistry Council, and National Council of Defense Lawyers had filed an unsuccessful brief seeking the Supreme Court's review of the circuit court ruling. (See NAM Legal Beagle entry.)

We'll give the final word here to the defense as contained in a brief interview with David Bernick, the lead defense attorney, in American Law Litigation Daily: Bernick describes the closing argument:

It was organized to pursue two major points that were united by a common theme. The first point was that the government had not been credible in its prosecution of the case, that the government had consistently presented narrow and misleading evidence and hadn't told the full truth. The second point was that the defense showed that evidence the government presented was insufficient, and that we undertook to tell a much more robust and truthful story of corporate responsibility. We urged upon the jury the idea that we weren't seeking an excuse in the government's poor conduct, but that we wanted a verdict based on the evidence and on vindication.

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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.