W.R. Grace lawyers seek change of venue

Lawyers for seven indicted W.R. Grace executives compared the extraordinary media coverage of their case to the Oklahoma City bombing trial as they argued in U.S. District Court on Thursday for an out-of-state change of venue.

The high-profile news coverage that prompted a federal judge to move bombing suspect Timothy McVeigh's trial from Oklahoma City to Denver is the same kind of media exposure that has tainted Montana's jury pool, the defense counsel argued.

An indictment in February charged that Grace and its top managers knew the company's vermiculite mine at Libby produced toxic asbestos but concealed the health hazards from miners and Libby-area residents. The case is scheduled to go to trial Sept. 11 in Missoula.

Defense lawyers said unbiased jurors are more likely in large cities such as Minneapolis, Denver, Salt Lake City or Boise, Idaho, and suggested those cities because they're easily accessed by air travel.

Chief U.S. District Judge for Montana, Donald Molloy, has not ruled on the change-of-venue request.

The defense set the stage for the change-of-venue hearing by showing a tape of a recent TV news story about the Libby asbestos saga produced by Missoula NBC affiliate KECI. Then California State University-Chico political science professor Edward Bronson testified why he believes the case should be moved out of Montana.

Bronson was contracted by Grace to provide 200 hours of consultation, at a rate of $250 an hour.

"This does seem to pick up on the theme - the pathos, the tragedy, the anger that was felt and directed toward Grace," Bronson said about the KECI story. "It opens the scab, and the healing effect is interrupted."

Other national TV news coverage, along with a mountain of written articles about Grace and the Libby mine, has become so "embedded in the psyche" of Montanans that an impartial jury would be nearly impossible to find in state, Bronson maintained. He also pointed to a portion of the news clip that showed a Missoula man worried about the asbestos in his own attic and the health of his son, who had played with toy trains in the attic.

"The jury pool is now worried that Grace is perpetrating the same horror on them and their own," Bronson said.

In cross-examination, Kevin Cassidy, a trial attorney with the Environmental Crime Section of the U.S. Department of Justice, asked why Billings wasn't included in the defense's survey of more than 4,000 potential Montana jurors. The study found roughly half of those surveyed believe Grace is guilty of concealing the health hazards of asbestos. Cassidy said that Billings is far removed from federal courts in the western half of the state, and its daily newspaper has published the fewest articles about Grace.

Bronson said he was told by defense attorneys not to review any Billings data because it wasn't under consideration for a potential change of venue. Molloy later said the defense may have misconstrued a statement he made that questioned whether Billings would be an appropriate place to hold the trial because of asbestos found at the Billings courthouse.

"I didn't intend to rule out Billings," Molloy said.

Grace attorney Larry Urgenson said the defense is willing to consider Billings as an option, but wondered whether the courthouse would be a sufficient facility, and whether the asbestos contamination of the courthouse would play into more media frenzy.

"We assumed, perhaps wrongly, that Billings was not a practical alternative," Urgenson said.

Although Missoula may have the most tainted juror pool, the repeated news coverage about Grace has affected the entire state, lawyers argued.

"There's a very real sense in which Montana became a community, just as Oklahoma became a community for the Oklahoma City bombing," Bronson said. "I do think there's less salience the farther away you get from the epicenter."

Ron Waterman, an attorney for indicted Grace executive Henry Eschenbach, said the state's mining history, particularly the Anaconda Co., has painted a negative picture of the state's extracted industry.

"It sets a unique backdrop. We all have a common history, and you can't take Grace away from that history," Waterman said.

Prosecuting attorney Kris McLean maintained that Grace's survey of potential jurors, "a series of leading questions done by cold calling," was weighted with calls made within the Missoula court division. Roughly 45 percent of the respondents were from the Missoula area, while only 12 percent were from Helena, skewing the results, he said.

Molloy asked defense attorneys whether they thought their case meets the criteria established by the Daniels v. Woodford case in the U.S. 9th Circuit Court of Appeals. One of the determining factors for a change of venue is whether a barrage of inflammatory publicity that evokes a "huge wave of public passion" occurs immediately before the trial.

"Does that exist here?" Molly asked. "We're a year away from the trial. I don't know what a 'huge wave of public passion' is."

Molloy said the Constitution requires the case to be tried in Montana.

"It seems to me I ought not be looking for a way to get out of Montana, but for a way to have it in Montana," the judge commented.

He also asked the defense counsel whether it had reviewed how many cases are acquitted in Montana. Molloy said between July 1, 2003, and Oct. 31, 2005, 121 federal criminal trials were held; only 50 percent of the defendants were convicted on all counts. Twenty-three percent were fully acquitted, and another 23 percent were acquitted on some charges.

Bronson replied, saying "this case is extraordinary from the social science point of view."

Urgenson argued that 92 percent of the 4,000 people contacted in Grace's juror survey had heard about the case, and that in itself should be enough to move the trial out of state.

Molloy mulled options brought up at the hearing that would allow the trial to stay in Montana, such as striking Lincoln County (of which Libby is the county seat) from the juror pool and drawing jurors largely from eastern Montana.

In response to Waterman's suggestion that the trial will take roughly six months, Molloy said the defense and prosecution should "think more in terms of two or three months."