Don Robinson - June 03, 2009
American Board of Trial Advocates
Response to Criticism of W.R. Grace trial
Montana Chapter of ABOTA Responds to Criticism of W.R. Grace Trial
The undersigned are members of a national trial lawyer organization, the American Board of Trial Advocates (ABOTA), whose mission is to preserve and protect the 7th Amendment right to a jury trial and to foster understanding of and respect for America’s justice system. ABOTA members represent both plaintiffs and defendants and some have experience in both criminal prosecution and defense. Membership is limited to those who satisfy stringent qualifications for experience and character. We have read and heard criticism of the jury’s verdict in the criminal trial involving W.R. Grace’s mining operations at Libby and criticism of U.S. District Court Judge Donald W. Molloy for his handling of the case.
ABOTA members, like all citizens in Montana, are saddened by the tragedies in Libby. It is natural, when a tragedy of that magnitude occurs, to blame someone. Certainly, no one – including lawyers, jurors or judges – is immune from legitimate criticism for inappropriate or illegal conduct. But where criticism arises largely from disappointment in or disagreement with the end result, it is necessary to respond.
As attorneys with substantial trial experience in federal and state courts, we believe public criticism of judges or juries who faithfully discharge the obligations of their respective roles is unfair and misleads those who did not participate in or fully observe the trial itself. As in every case, there were a small number of people with a sworn duty to consider and pass judgment solely on the testimony and evidence presented in the courtroom – the 12 jurors and the presiding judge. The rest of us, including the press, did not have access to or fully participate in the entire process. Indeed, the jury was instructed daily to avoid press accounts because even skilled media personnel do not have time or space to report important facts presented to or excluded from the jury’s consideration. Nor can press accounts make non-participants aware of the difficult legal and factual nuances presented to a principled trial judge with a sworn obligation to both uphold the law and, at the same time, protect the rights of citizen defendants.
Much of the criticism seems based upon misconceptions about the difference between criminal and civil law. Unlike a civil case, the judge and jury in the Grace criminal trial were required to find “beyond a reasonable doubt” that corporate employees conspired to violate a criminal law that was not even enacted until after a number of the industrial activities and business decisions had already occurred. Both federal and state constitutions prohibit the enactment of ex post facto laws that criminalize conduct retroactively.
In addition, the criticism appears based upon a misconception about the role of the criminal and civil laws as they pertain to the Libby tragedy. Whether or not the corporate defendant and its individual employees are ultimately liable in money damages for the indisputably terrible consequences of asbestos mining has nothing to do with the results of the criminal case. The criminal “not guilty” verdict does not make the defendants more or less vulnerable to civil law claims for money damages. Those issues are governed by civil law courts, workers compensation courts and environmental agencies. From a recent report of the Montana Trial Lawyers Association, it is clear there have already been civil actions with results in favor of injured Libby residents, including punitive damages. The result in the criminal trial will have no effect on future civil claims against Grace by Libby residents.
Another complicating factor, as disclosed by news accounts, was the government’s decision, inadvertent or otherwise, to withhold evidence that might favor the individual defendants. That Judge Molloy was critical of these actions – a violation of basic constitutional rights and rules of criminal procedure and evidence – should be reassuring to all citizens. Judge Molloy has an obligation to protect the rights of all citizens – no matter their station in life – against the power of the federal government.
While we cannot comment on whether the judge, the jury or prosecutors made mistakes in their handling of this case, we can say from our experience that whether or not a case can be successfully prosecuted is often more complicated than simply a person’s “gut reaction” to the result. That is so because the rules of law and evidence are sometimes difficult to understand or have not been fully explained in news accounts. The Grace criminal prosecution was, in many ways, unprecedented in terms of the difficulty of the legal issues presented. Indeed, one can review the judge’s legal instructions to the jury and, by that review, gain an appreciation for the complexity of the job performed in this case by Judge Molloy. (The instructions can be accessed at http://www.mtb.uscourts.gov//mtd/imagines/1187.pdf).
It is vital that non-litigants – as well as litigants – know and believe the courts, their procedures and their decisions are fair and impartial, even if we disagree with a specific result. Because it is unethical for a judge or jury to directly answer criticism of their actions, those of us who work within the system have the right – and the obligation – to make our best efforts to respond on their behalf. In this case, the criticism of the Grace trial judge and the Grace jury is unwarranted and unfair. We hope that the media and others would use some wise restraint in analyzing the issue. Jumping to conclusions and placing blame on any particular participants in our criminal justice system does little good and can undermine confidence in a system that, while not perfect, is nevertheless a guardian of our constitutional rights and the best system in the world.
This letter is signed on behalf of the Montana ABOTA chapter by its president and national representatives. Not all members of ABOTA share the opinions expressed and at least three have specifically declined to support it because of their representation of Libby residents. Nevertheless, a substantial majority of ABOTA members have endorsed the views stated herein and all ABOTA members endorse and defend the right to jury trial and preservation of that right for all American citizens. Individual signers are listed below by hometown.
/s/ Randy J. Cox, Attorney, Missoula (President)
Donald Robinson, Attorney, Butte (chapter delegate to National ABOTA)
Robert C. Phillips, Attorney, Missoula (chapter delegate to National ABOTA)
List of individual ABOTA members endorsing this letter, by hometown:
Mikel Moore, Kalispell
Robert James, Great Falls
Doug Wold, Polson
Jim Goetz, Bozeman
Jim Regnier, Lakeside
Dave McLean, Anaconda
Alexander “Zander” Blewett, Great Falls
Robert Sheridan, Missoula
Curt Drake, Helena
John Bohyer, Missoula
Elizabeth Best, Great Falls
Joe Bottomly, Kalispell
Tom Beers, Missoula
Monte Beck, Bozeman
John Alexander, Great Falls
Larry Riley, Missoula
Cal Stacey, Billings
Paul Meismer, Missoula
John Gordon, Missoula,
Carey Matovich, Billings
Bill Rossbach, Missoula
Jake Heckathorn, Kalispell
Ronald Bender, Missoula
ABOTA is dedicated to preservation of the right to trial by jury guaranteed to all citizens under the 7th Amendment to the United States Constitution. ABOTA engages in a number of national and local programs to educate school students and the public generally about this important provision of the Bill of Rights.
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