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Judge Blasts Federal Prosecutors in Asbestos Prosecution

Posted Apr 28, 2009 7:32 AM CDT
By Debra Cassens Weiss

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A federal judge chastised prosecutors yesterday in a hearing on misconduct allegations in the two-month trial of W.R. Grace and five of its former executives. The company is accused of exposing residents of a Montana mining town to asbestos, resulting in hundreds of deaths.

Assistant U.S. Attorney Kris McLean bore the brunt of the judge’s wrath in the hearing yesterday, the New York Times reports.

U.S. District Judge Donald Molloy of Missoula said he couldn’t believe that prosecutors put fired Grace employee Robert Locke, a star witness, on the stand, according to Bloomberg News. “The guy will say anything, any time, any place, as long as he think’s it’s what somebody wants to hear,” Molloy said.

When prosecutors protested Molloy's assertion, the judge replied: “We have a disagreement about that. Probably hell would freeze over before we would come to any kind of agreement.”

Defense lawyers made several claims of prosecutorial misconduct in a motion filed last week, Bloomberg reports. Among the allegations: Prosecutors solicited testimony in the case that they knew to be false and failed to turn over e-mail messages showing an improperly close relationship between Locke and a government investigator. Locke allegedly lied when he said he rejected an immunity agreement from prosecutors, the motion claimed. In reality, the defense says, Locke had been offered assurances “with a wink and a nod” that he wouldn’t be prosecuted. Locke also falsely testified, defense lawyers claim, that he had met with prosecutors six times, when there were actually 20 or more meetings.

Molloy complained about 128 e-mails between Locke and the investigator that were never turned over. “My problem here is that you had an obligation to get the stuff on the table that was required by the Constitution,” Molloy told McLean. “And you didn’t do it.”

Prosecutors countered that Locke hadn’t lied and documents were not withheld on purpose. “I don’t operate that way,” McLean said.

At the request of prosecutors, Molloy yesterday dismissed charges against former Grace senior vice president Robert Walsh. McLean said the government can’t prove its case against Walsh because of evidence rulings by Molloy. The judge continues to consider other options in the case, the Times says.

“There’s a failure in the process here,” Molloy said. “The question is, What do I do about it?”

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