Andrea Peacock analyzes the W.R. Grace not guilty verdicts, and finds there’s plenty of blame to go around.
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A collective stunned silence hit the state of Montana at lunch time on Friday, May 8, as news filtered out from U.S. District Judge Donald Molloy’s Missoula courtroom that W.R. Grace & Co. and three of its former executives had been acquitted of all crimes in connection with the asbestos poisoning of Libby, Montana.
Then the e-mails, phone calls and Facebook messages started: “We are sick to our stomachs…” “What an injustice, tell me who I can write to…” “Not guilty?? Pardon me, but WTF?? This is shocking.” “Surely 2,000 cases of illness and about 225 deaths in the Libby area are not their fault. B*tards.”
Court watchers were less surprised. From the nature of the charges themselves to the statute of limitations, from the rulings prohibiting evidence Molloy deemed prejudicial to the final jury instructions, Grace’s lawyers prevailed on nearly every point that gave them an edge, making it all but impossible for the 12 jurors to come to any other conclusion.
At issue were criminal charges for environmental crimes against the U.S. government and people of Libby, Montana: namely, that Grace and these men knowingly exposed generations of a small Montana town to lethal doses of a particularly virulent form of asbestos from its vermiculite mine there, violating the Clean Air Act in a conspiracy to defraud the federal government, and obstructing the subsequent investigation. More than 270 people from Libby lie in their graves due to asbestos from the mine, and another 1,800 (from a community of about 12,000) walk around with the likely death sentence of an asbestos-related diagnosis.
The government’s case walked a razor’s edge of dates and crimes. The Clean Air Act provisions Grace was accused of violating didn’t exist until 1990, the year the mine closed. Furthermore, the five-year statute of limitations began running at the end of 1999, when a newspaper series brought the tragedy in Libby to light. Since charges weren’t filed until 2004, that left a very thin sliver of time in which to find evidence of wrongdoing.
So while prosecutors were permitted to introduce evidence of the conspiracy dating back to 1976, they also had to prove that this conspiracy continued through the Clean Air enactments of 1990, and into the relevant time period after 1999. This was particularly problematic as it related to the human defendants: Robert Bettacchi, Henry Eschenbach, William McCaig, Robert Walsh and Jack Wolter. McCaig, for instance, retired before the 1990 Clean Air Act provisions came into existence. Wolter was fired in 1994, and Eschenbach retired in 1996. (There were originally seven defendants along with Grace: Alan Stringer died before having his day in court; O. Mario Favorito’s case was severed due to his unique status as Grace counsel. Charges against Walsh and McCaig were dismissed at the tail end of the trial, when the government realized the court’s restrictions on evidence made it impossible to prove the charges against them.)
The government’s theory was elegant despite these challenges: each charge complemented and necessitated the others. Grace knew the specific and unique toxicity of its tremolite asbestos fiber, prosecutors asserted, yet withheld crucial pieces of evidence from regulatory agencies in order to keep turning profits and avoid liability. Company memos discuss these goals in detail through the 1970s, as executives debated what to do about Libby product lines while federal regulations regarding asbestos were in flux. This, prosecutors said, was the conspiracy.
The deception took on some urgency in 1990, the theory continued, when federal law made it a crime to release a hazardous substance into the ambient air, knowing that it created the risk of imminent death or serious injury. Assistant U.S. Attorney Kris McLean accurately likened the vermiculite left around town to land mines set for Libby’s citizens to step on.
When W.R. Grace executives closed the Libby mine in 1990, sold off their properties, then split town, they did so knowing that the high school and middle school running tracks had been paved with mine tailings; that the Plummer Elementary School ice skating rink was constructed with its ore; that the former screening plant sold to a local family, the Parkers, for their nursery and storage businesses was blanketed with asbestos-contaminated vermiculite; that the export plant it donated to the town—which was leased for a family-run retail lumber and planing business—was also chock full of the stuff.
Grace was sloppy with a product it knew to be lethal, allowing it to be spread around the Little League baseball fields, to be used by a local sand and gravel company, to be loaded by pickup trucks and carried to gardens and yards throughout town, and to “sand” the dirt road running up Rainy Creek to the mine, frequented by locals to access hunting and by kids to get to a popular party meadow.
In the prosecution’s narrative, the citizens of Libby became unwitting agents of Grace, indirectly causing the hazardous releases while going about their day-to-day lives. These were the Clean Air Act violations.
When people became sick, when people died, their families took Grace to court and won: sometimes settlements, sometimes guilty verdicts—all amounting to modest sums of money. To the company, it was the cost of doing business. Grace had profited from Libby, unloaded its contaminated properties, and gotten out of town more or less unscathed. This was the conspiracy in action.
Then in 1999, reporter Andrew Schneider published a series on Libby in the Seattle Post-Intelligencer. The Environmental Protection Agency (EPA) sent a team to town to find out what was really going on. As the EPA agents talked with Grace, the company stalled, banned the EPA from the mine site, misled and outright lied to government investigators, both in person and in writing, causing delay in the cleanup and yet more exposures to the deadly fibers. These were the obstructions.
“They tell a little bit of the story, they tell the wrong story, they deflect, they delay…” attorney McLean argued to Judge Molloy against the defendants’ motions to acquit. “They need to continue hiding the ball, otherwise the endangerment is going to be discovered. If Grace were to tell the EPA, ‘We knew the workers were going home with dust on their clothes,’ given the sickness that existed in the population, they would be responsible for that. It’s not the kind of statement they could make to the government and not let the cat out of the bag.
“This is the company line, this is what they had to say. They cannot tell the truth about this or they will suffer substantial liabilities and possible criminal prosecution.”
The prosecution’s case proceeded without incident until March 23. On that day, a former Grace vice president and unindicted co-conspirator named Robert Locke took the stand.
The government’s theory of conspiracy relied heavily on decades’ worth of internal Grace documents. Human memory is frail, and few people who had personal knowledge of Grace’s machinations were talking. Locke was the exception. He was, as lead Grace attorney David Bernick put it, to be “the voice of the documents.” Locke’s career with Grace is noteworthy in large part for a memo he wrote in 1980, laying out the company’s options for dealing with an impending federal investigation of Libby’s vermiculite and its toxicity. “Obstruct and block,” Locke wrote. “Be slow, review things extensively and contribute to delay.”
Locke was perfectly positioned to help the prosecution team. A Harvard business school grad, he spent 25 years with Grace mostly in the Construction Products Division that ran the Libby mine. He also suffers from disabling depression, anxiety and attention deficit disorder, and was fired from the company in 1998. Locke clearly had an ax to grind–he had a discrimination lawsuit pending against Grace, and so proved receptive to the government’s overtures.
And for four days of direct and cross-examination, he delivered. Locke kept meticulous notes going back decades and could recall vividly the details of Grace’s decision-making process. He nearly single-handedly made the government’s conspiracy case.
But on day three, Locke recalled a conversation that changed everything. He testified that during a meeting about the sale of the former Grace screening plant to the Parker family for their nursery business, he voiced concerns about the deal. He said that his boss, defendant and former senior vice president Robert Bettacchi, waved off Locke’s unease in a particularly callous manner.
Locke: I was told that we were—someone was going to buy the site of the former screening plant and the tunnel and grow mushrooms there or flowers or something or other. … I had real bad vibes about the site… I just said that it was a real bad idea to do that, we ought to just put loam over it and plant grass and keep people the hell out of it.
McLean: Did you say those things to Mr. Bettacchi?
Locke: Not those exact words, I imagine, but that’s what I said. I just thought it was a bad idea.
McLean: Did he make any response to your point?
Locke: Yeah, and that’s the only reason I remember that. He said caveat emptor.
McLean: What did that mean to you?
Locke: Well, it’s Latin and it means buyer beware…
Taken at face value, this was the nail in Bettacchi’s coffin. However, when Bettacchi attorney Thomas Frongillo got his shot at Locke, he confronted the former Grace vice president with a statement Locke had made to prosecutors in 2004 to the effect that he had not been involved in any conversations regarding the sale of the screening plant property. Frongillo accused Locke of perjury.
“You came up with a fabricated story, an outright lie…because you wanted to stick it to the guy who you sued and couldn’t get any money from,” Frongillo insisted.
Judge Molloy reacted immediately, halting the proceedings and sending the jury off on spring break with Frongillo’s accusation left hanging. As court resumed the following week without the jury present, defense attorneys wasted no time accusing prosecutors of having colluded with Locke in cooking up his testimony, and asserted that the entire case was too tainted to continue. The prosecutors steadfastly maintained their innocence and Locke’s credibility.
The basis of accusations against Locke was circumstantial. First, Locke had been offered immunity from prosecution in exchange for his cooperation, but turned down the deal. Defense lawyers claimed this decision was made with a wink and a nod from the government, that they had no intention of going after Locke but wanted him to look neutral, independent and vulnerable to the jurors. Furthermore, it turned out EPA investigator Bert Marsden failed to turn over all his e-mail correspondence with Locke—notes showing Locke had a clear bias against Grace and Bettacchi in particular. Locke was therefore anything but the independent or vulnerable man presented to the jury, Grace attorney Bernick reasoned.
“His message to the jury was unmistakable: He was his own man, by saying he was willing to experience the threat of prosecution,” Bernick said. “That was a false impression, right? Designed to mislead the jury.”
With the jury gone, Bernick was given free reign to question Marsden one Friday morning. From the start, Bernick endeavored to pressure Marsden into saying that Locke was an integral part of the prosecution team—not a mere witness. He spent four hours picking apart e-mails spanning more than four years of communication between the two men, asking about books that Marsden had recommended to Locke, a meal they shared, and Locke’s apparent need to help out way beyond the scope of a normal witness.
“Mr. Locke got all these things he wanted,” Bernick insisted. “His own special [immunity] letter, special treatment, special input. Special, special, special! He had a special relationship with prosecution.”
Bernick never once let up on this theme. Partly the implication was the jury could not judge Locke’s veracity as a witness without knowing this context, but it was also an attempt to implicate prosecutors in the alleged perjury. But Marsden steadfastly refused to bend: Locke was unique, he was mostly cooperative, but he was not part of the team.
Before Locke had taken the stand, Judge Molloy was already signaling his impatience with prosecutors, whom he said were not providing any evidence of a conspiracy. Afterwards, Molloy pegged Locke as a liar, pronouncing the testimony “as close as I would ever want to see to perjury.” Though Molloy never seemed to buy the defense assertions that the entire Bettacchi-Locke exchange had been invented by prosecutors, he came awfully close to dismissing the whole case for prosecutorial misconduct, based on the hidden e-mail issue.
“From the get go, I trusted Mr. McLean. My trust probably kept me from doing what I should have done earlier,” Molloy said. “I have no confidence at all in anything the government says.”
As it turned out, the 2004 transcript Frongillo waved in front of Locke as evidence of his dishonesty revealed the situation to be more complex than Frongillo had let on. Locke testified he had not been involved directly in negotiations, but had been at many meetings where the screening plant sale was discussed. Prosecutors emphasized it was at one of these meetings that Bettacchi made the disputed comment to Locke. According to attorney McLean’s notes, Locke told the prosecution about the now infamous conversation nearly two months before the trial began.
With no evidence of perjury, and prosecutors’ insistence that Locke was credible and the e-mail fiasco was an honest mistake (pointing out that if they had meant to conjure up testimony, they would have done a better job at it), Molloy decided to let the trial continue. He admonished the jury to ignore Locke’s testimony as it related to Bettacchi (citing Locke’s obvious animosity toward his former boss), and castigated the government in front of jurors for failing in their duty to provide the defense with all required documents.
With the star witness for the prosecution turned into a perfect distraction for the defense, the chastened government team rested its case.
By my count, there were about a dozen different arguments put forward by Grace and the other defendants upon which the jury could legitimately have hung its not guilty verdicts. These included assertions that bordered on the absurd—like the notions that Libby’s fiber is not actually a regulated form of asbestos, and the sick folks up there are not really ailing, but misdiagnosed—but which might have found traction among the 12 people who haven’t spent the last 10 years researching the subject.
Other theories were designed to create confusion. Grace pounded away at the government’s science. Toxicology, geology, epidemiology and risk assessment are not easy subjects, and absent Grace’s specific knowledge about the asbestos in Libby, the rest of us have always been playing catch up. So when Grace attorneys put on experts who claimed the government got it wrong, how were the jurors to say, beyond a reasonable doubt, who had it right?
Grace attorney Bernick zeroed in on the unusual idea that Grace used innocent third parties to cause the release of asbestos. He likened it to having a bucket full of a hazardous substance. If he were to tell someone to kick the bucket, he reasoned, he’d be liable. But to set the bucket down on the ground and walk away, then be held liable 10 years later when someone kicked it, would be unfair, and not the intent of the law.
Grace argued that its internal debates on what to do about Libby were legitimate business discussions, not evidence of conspiracy. Attorneys, knowing full well that property rights play well in Montana, claimed Grace had every right to deny access to the mine to EPA investigators, given concerns about liability and its misgivings over the EPA’s cleanup plans. They claimed EPA questionnaires were intended as “gotchas,” an attempt to trick Grace into offering answers that would provide a basis for prosecution. They made full use of the stereotype that Montanans distrust the power of government, turning EPA team leader Paul Peronard into a megalomaniac who could do whatever he wanted. (“One word,” Bernick posited to Peronard on the last day of testimony. “King. K-I-N-G. Didn’t you describe your role as King of Libby?” Peronard responded the statement was taken out of context: There were too many supervisors in Libby so no one could be effective. His authority, Peronard said, sparring with Bernick, “was not the War Powers Act.”)
And, of course, the defense played up Locke’s testimony as proof of their misconduct allegations.
“What did [the prosecutors] show by their conduct?” Bernick asked in closing. “They care a lot about Libby, they had an allegiance to Libby; the somber tones of [government attorney] Mr. Cassidy talking about the toll of Libby. Their allegiance was to Libby, not to the law…
“They’ve taken a political story and criminalized it, want to bring it home to you and make it stick.”
It was a pretty slick argument, allowing the jury to have sympathy for Libby, empathy for the prosecutors, all the while voting for the defense.
Most convincing was evidence that matched my research and that of anyone else who’s taken a look at the historical record in Libby: The State of Montana and EPA knew enough of what was happening, and they should have been all over that town 30 years ago. There is blame to share, and while that does not release Grace and these men from their responsibilities, it is utterly true.
If 11 weeks of such confusing, conflicted testimony weren’t enough to raise reasonable doubts, the defense planted a couple ringers within the jury instructions, the court-approved guidelines sent with the jurors into their deliberations. One defined “imminent danger” as a command that the prosecutors must prove it was “more likely than not to cause death or serious bodily injury.” Defense attorneys construed this to mean that at least half the people exposed in Libby needed to be dying (instead of just the 20 percent of the community members showing evidence of asbestos-related lung disease). Another instruction specified that the releases of hazardous material placing people in such imminent danger must have happened “for the first time” after November 1999. By that logic, Bernick’s bucket metaphor applied—people had been kicking it for nearly a decade. There were no first times after November 1999.
Prosecutor Kevin Cassidy ended his closing statement to the jury with an aerial photo of Libby illustrating the EPA’s sampling efforts over the years. Green dots marked clean samples, red dots signified those than came back positive for asbestos. “Ladies and gentlemen, this is Libby when the EPA arrived there. The town is full of asbestos contaminated vermiculite.”
It brought to mind the day early in the case when Grace lawyers superimposed the green dots on top of the red, implying that the prosecution had done something wrong by showing the red dots at all. In the Grace version, all was green. There was no asbestos. It aptly illustrated the prosecution’s point, Grace’s company line for decades: “There is nothing to see here, it all comes out in the process, it’s less than one percent, there is no problem,” Cassidy said. “There’s nothing to see here. There is no risk.”
Gayla Benefield and Norita Skramstad were five minutes away from getting in the car to make the four-hour drive to Missoula when they got word the jury had a verdict. So the two women, long-time Libby residents and advocates for the asbestos victims, both carrying the scars of Grace’s tremolite in their lungs, were not sitting in the front row to see justice done in person, as Norita’s late husband Les had hoped for.
And certainly neither of them would say justice was done at all. “They got away with murder,” Norita told me on the phone. “Molloy was their best defense. He won it for them.”
She had a point. Judge Molloy kept out as best he could any evidence that humanized the victims in Libby: there was to be little talk of children’s exposure, no description of how it is to die from the slow suffocation of asbestosis, nothing that brought to life the cases of “occupational exposures,” the workers and their family members who were killed. This was his job—to a point.
Nearly any time Molloy had room for interpretation, his rulings came in for the defense: which witnesses could testify, the things they could testify to, the sorts of evidence that could be introduced. Many internal Grace documents that would otherwise have been relevant—memos, for instance, that debated things like the cost of showers and uniforms for its workers—were redacted or omitted all together because of their inflammatory nature. In one order, Molloy disallowed the use of 47 out of 54 of the government’s proposed exhibits, mostly on the grounds that they would be prejudicial—that is, their potential emotional impact outweighed their evidentiary value. The lesson seemed to be, if you’re going to conspire to break the law, make sure your documentation is too provocative to be seen by a jury.
It’s important to keep in mind that this was not a case about lives shortened or stolen. These were environmental crimes charged here. The defense attorneys referred often to the incidence of sickness and death among workers and their families—when they acknowledged it at all— as though it was a legitimate bargain for those men to hand over their lives (and those of their wives and children) in exchange for the privilege of earning a livelihood.
Furthermore, Molloy allowed the tenor of the case to be debased. Defense attorneys mocked their opponents outright, and called the government’s attorneys and witnesses alike liars (including a particularly merciless attack by Bettacchi attorney Frongillo on the character of nursery owner Mel Parker, who if defense lawyers were to be believed, cared more about having waterfront property than his family’s health). Molloy called the prosecutors “bullheaded,” and berated them for putting Locke on the stand, parroting the defense’s accusations against their witnesses and tactics.
To their credit, prosecutors McLean and Cassidy kept their composure throughout. Under a barrage of accusations, the pair defended themselves while maintaining an air of civility that had been abandoned by both the court and their opponents.
“The defendants have called me a liar today, they have said I suborned perjury. They have said I constructed a case that was misleading. They have said many things about my character as an attorney, about my character as a prosecutor that simply are not true,” McLean said in his defense. “It’s not how the U.S. Attorney’s Office works, it’s not how I work.”
The pair of prosecutors kept their focus on the real story at all times. When Grace lawyers in their closing arguments talked of how the company “followed up” with its industrial clients out of concern for asbestos levels those workers were exposed to, McLean posed a simple question drawing a chorus of objections (that were, of course, sustained): “Who followed up with the Libby residents?”
Norita asks if the verdicts can be appealed. I tell her that while they can’t, there’s still the possibility of state charges on homicide. But she has no appetite for this. “I think we’ll just go on with our lives,” she says. “Let it all go behind us.”
During the trial, an occasional posse of journalists gathered for lunch at the Union Club to swap impressions. At one point when Gayla and Norita joined us, Andrew Schneider commented he was tired of writing about Libby, and I fully understood how he felt. But I also had a pretty good idea what Gayla’s response would be: “I’m tired of living with it, but I’ve got five friends dying right now. There were six, but one passed away on Sunday.”
It never was Gayla Benefield’s or Norita’s or Les Skramstad’s job to get justice for Libby. It was the job of the EPA and Department of Justice. It was the duty of Montana’s media. And it remains the responsibility of the Montana Attorney General.
Montana law allows that, “A person commits the offense of negligent homicide if the person negligently causes the death of another human being.”
As of early 2007, there were 274 people on Libby’s self-kept scorecard of asbestos casualties—this includes 33 cases of mesothelioma identified by the Agency for Toxic Substances and Disease Registry (mesothelioma is a rare lung cancer associated exclusively with asbestos exposure), as well as miners, miners’ wives, miners’ children and scores of people who had no connection to the mine at all—they simply lived in Libby. Given the latency period of asbestos related diseases—which can stretch for as long as 40 years—the community will likely be burying people whose lives were shortened by the contamination Grace left lying around town well into the middle of this century.
Just because the rest of us are tired of the tragedy is no excuse. There are an awful lot of people still waiting for judgment day.
Montana Attorney General Steve Bullock can be reached at the Department of Justice, P.O. Box 201401, Helena, MT 59620, or via e-mail at firstname.lastname@example.org
Andrea Peacock is a former editor of the Independent, and the author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation (Johnson Books, 2003).