Getting on the witness stand to be cross-examined by New York attorney David Bernick looks an awful lot like stepping into a boxing ring with Mike Tyson. Bernick is skilled and brutal; in the last seven weeks I’ve listened to him take apart some of the most articulate, intelligent people I’ve ever met. Last week in Missoula, Montana, he turned his sights on a mild-mannered EPA investigator named Bert Marsden.
The ring in this case is Judge Donald Molloy’s federal courtroom where the W.R. Grace corporation and five of its former managers face 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 death sentence of an asbestos-related diagnosis.
Halfway into the trial, the prosecutors are on the ropes. They began the process hamstrung by statutes of limitations, and by week seven found themselves forced to jettison witnesses and defend themselves against accusations of misconduct.
The government attorneys have been off-balance from the start, when the unfortunate timing of an appellate court ruling compelled them to put on their grand finale—the sorrowful tale of the Parker family who bought from Grace contaminated land for their nursery business—just as the case had barely begun.
Prosecutors Kris McLean and Kevin Cassidy stumbled through the first weeks of the trial at a stuttering pace, continually interrupted by defense lawyers who always seemed to have some objection to evidence, to questions, to the entire proceeding. Too often, the feds had no answer. They just couldn’t seem to get their rhythm on.
Bernick emotes outrage for the injustice done to his client week in, week out. So confident in his objections, he occasionally has to be reminded by the judge to wait for a ruling before continuing. As the trial progressed from weeks to months, Bernick lost none of his fervor, and he doesn’t save it up for the jury. Even with the panel out of the room, Bernick will burst into histrionics at some unfairness inflicted on the Grace company.
(“They don’t have conspiracy, they don’t have the science, the obstruction case is gotchas!” he shouted the other day.)
Then, when one somewhat unsavory witness appeared to perjure himself, attorneys McLean, Cassidy and agent Marsden were accused of orchestrating the mess. While Judge Molloy read the incident as the witness attempting to “hijack” the government’s case, the defense gave no quarter alleging all kinds of outrageous acts on the part of the frazzled prosecutors.
It happened like this:
Robert Locke is a former Grace vice president, a Harvard business school grad who suffers from disabling depression, anxiety and attention deficit disorder. His 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.”
From the prosecution’s point of view, Locke was perfectly positioned to help their case: he spent 25 years with Grace mostly in the Construction Products Division that ran the Libby mine. He also had an axe to grind, a discrimination lawsuit pending against Grace, and so proved receptive to the government’s overtures. As Bernick put it, the man was directly out of “central casting,” an ideal witness who could be the “voice of the documents” the jury would be considering. And for four days of direct and cross-examination, he delivered. Locke kept meticulous notes going back decades, 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 said something that set in motion a series of events that may yet turn the largest criminal environmental case in U.S. history into an embarrassment that will haunt the government’s lawyers for the rest of their careers.
Locke 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. 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…
When it came his turn to question Locke, Bettacchi’s attorney Tom Frongillo accused him of telling “an outright lie.” Indeed a transcript of his sworn testimony from a 2004 interview with government agents reveals Locke saying he had not been part of the talks regarding the sale of the screening plant to Mel and Lerah Parker. Taken as such, it appeared Locke had made the statement up right there on the witness stand.
But the 2004 transcript continues with Locke saying he had been at many meetings where the sale of Libby property was discussed. In later interviews, Locke told prosecutors that was the context in which he had aired his concerns to Bettacchi and been given the now infamous line.
Here, things get complicated. Locke had been offered immunity from prosecution in exchange for his cooperation, but turned down the deal; defense lawyers assert 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 turns out EPA investigator Bert Marsden failed to turn over all his email 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, Bernick reasons.
“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.”
Over spring break, the defense attorneys filed motions to compel discovery of any remaining documents in the prosecution’s files that they were entitled to; they moved to strike Locke’s testimony in its entirety; and they accused the U.S. attorneys of working with Locke to cook up the whole exchange. That was the stage set for last Friday’s hearing. With the jury dismissed for the weekend, Bernick was given free reign with agent Marsden.
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 emails 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—because the implication was the jury could not judge Locke’s veracity as a witness without knowing this context—but Marsden steadfastly refused to bend: Locke was unique, he was mostly cooperative, but he was not part of the team.
This was no small feat. Bernick is relaxed on the court’s stage, blessed with infinite patience. And he knows his targets are largely uncomfortable in the same setting. He wears them down, wears them out til they seem ready to agree with practically anything he says just to get out of there.
“This isn’t going to get any easier, Mr. Marsden,” Bernick said three hours into the interrogation, when presenting the agent with a yes or no question intended once again to confirm the “specialness” of his relationship with Locke. “No one’s going to help you… Just answer the question.” The judge mercifully broke for lunch soon after.
In the end, the defense provided no actual evidence of collusion between the prosecution and its purportedly tarnished witness, only their own insistence that such exists. And a strict reading of both Locke’s testimony, and attorney McLean and agent Marsden’s notes support their version of his story: that Locke spoke of Bettacchi’s comment more than a month before the trial began (and that a note of this comment was provided to the defense a week before Locke took the stand).
After working to establish a “hand in glove” working relationship between Locke and the prosecution, Bernick went on to accuse the government’s lawyers of doing the opposite with its other witnesses: purposely hiding documents from them in order to manipulate their testimony.
Most troubling to Judge Molloy, however, was what Marsden termed an “oversight”: the government’s repeated failure to produce all documents the defendants were entitled to in order to properly cross-examine witnesses. These materials are commonly referred to as “Brady” documents (from the 1963 case, Brady v. Maryland) and apply to any papers that may be either exculpatory or used for impeachment purposes—that is, to cast doubt on the testimony of a given witness. It’s no small matter, but a constitutional right born of the due process clause of the 14th Amendment.
The U.S. Attorney’s office was wise to bring in a fresh lawyer to argue the government’s side, and after Bernick grilled Marsden for four plus hours, Timothy Cavan of Billings, Montana, calmly let Marsden explain himself.
Marsden was profoundly sorry he hadn’t turned over his emails. He is not a lawyer, and misunderstood his responsibilities under Brady. He said he discouraged Locke from investigating aspects of the case on his own. Marden’s job is to keep witnesses engaged, and that’s what his contact with Locke was designed to do. They never socialized. They once shared a working lunch.
Afterwards, the defense attorneys stood one by one urging Judge Molloy to find the case so rife with misconduct, he should strike Locke’s testimony, and ultimately direct a verdict of acquittal.
“The misconduct problems associated with the prosecution’s case are not isolated, they are pervasive. Not just the testimony of Mr. Locke, though even it were, he is such a central witness… the ramifications require a significant remedy,” Bernick said. “I know it’s affected every single one of the witnesses I’ve referred to. That can’t happen accidentally. That’s the way the entire prosecution team has conducted business. It’s canned from beginning to end.”
Three of the six defense lawyers who spoke urged Molloy to consider the human toll of this case. They weren’t referring to people in Libby, however, but to the stress placed on their clients’ lives.
Norita Skramstad had by this point left the courtroom. She told me over lunch she had intended to take up “smoking, drinking and chasing men” in her golden years, but instead was on her way home Friday afternoon to take care of her dying son. This just two years after losing her husband, Les, to Grace’s asbestos. She had said earlier in the day, laughing, that it was good Les was not here to see this debacle or she’d be bailing him out of jail. Norita could tell these people a thing or two about the human toll of this case.
While Molloy appeared receptive to at least part of the defense’s grievances, specifically with regards to document retrieval and witness manipulation, U.S. attorney Cavan refused to give up the fight.
“Everybody involved in this case has a thousand balls in the air. When you have a case of this magnitude, this length, this many witnesses, you’re going to have mistakes,” he said, adding that it was the jury’s responsibility to determine Locke’s truthfulness, and no one else’s. “The question is when they occur, can you cure them? And fortunately in this case you can. They’ve had the information for several days now. [Locke’s] still an active witness, put him back on the stand, have at him.
“I suspect they don’t want to cure this, but it’s there.”
Judge Molloy has scheduled further discussion of these matters for April 27. The defense expects to move for a judgment of acquittal by the end of this week. By that time, the prosecution should have called its final witnesses and rested its case.
ANDREA PEACOCK is the author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation (Johnson Books, 2003). She lives south of Livingston, Montana, and can be reached at firstname.lastname@example.org