U.S. v. Grace
| Decision Date | 30 September 2005 |
| Docket Number | No. CR 05-07-M-DWM.,CR 05-07-M-DWM. |
| Citation | 401 F.Supp.2d 1057 |
| Parties | UNITED STATES of America, Plaintiff, v. W.R. GRACE, Alan R. Stringer, Henry A. Eschenbach, Jack W. Wolter, William J. McCaig, Robert J. Bettacchi, O. Mario Favorito, Robert C. Walsh, Defendants. |
| Court | U.S. District Court — District of Montana |
William B. Jacobson, Laurence A. Urgenson, Kirkland & Ellis LLP, Gary A. Winters, Mayer Brown Rowe Maw LLP, Washington, DC, Carl J. Oreskovich, Holden & Oreskovich, Spokane, WA, Charles E. McNeil, Stephen R. Brown, Jr., Kathleen L. Desoto, Garlington, Lohn & Robinson, C.J. Johnson, Kalkstein Law Firm, Missoula, MT, Ronald F. Waterman, Gough Shanahan Johnson Waterman, Palmer A. Hoovestal, Hoovestal Kakuk & Fanning, Helena, MT, Elizabeth Van Doren Gray, Sowell Gray Stepp & Lafitte, Columbia, SC, William A. Coates, Roe Cassidy Coates & Price, Greenville, SC, Stephen A. Jonas, Wilmer Cutler Pickering Hale, Boston, MA, Keith Strong, Dorsey & Whitney, PC, Great Falls, MT, Tyler D. Mace, for Defendants.
Defendant W.R. Grace seeks to compel the government to comply with rules governing public statements about this case. All of W.R. Grace's co-Defendants have joined in the motion. The issue involves public statements by the prosecuting attorneys and their agents which are allegedly improper attempts by the United States to taint the jury pool and prejudice the Defendants. The United States opposes the motion. I have grave concerns that my message to counsel was not heard or perhaps not understood. Nonetheless, the motion is denied for the following reasons.
The prosecutorial conduct Defendants complain of begins with the public announcement of the Indictment in this case on February 7, 2005. In particular, Defendants take issue with statements by United States Attorney William Mercer that "[a] human and environmental tragedy has occurred in Libby," and that the prosecution in this case "seeks to hold Grace and its executives responsible for the misconduct alleged." Attorney Mercer's press play was unfortunate. The Court addressed the manner of his announcement of the Indictment at the scheduling conference on March 9, 2005, stating,
I set forth my general expectations regarding pretrial publicity, saying:
I do know one thing. It's very hard to rule on objections that are in the newspaper. I will expect everybody in this room to understand what I'm saying. I don't want to take it any further than that. I don't want lawyers quoted in the paper ... [T]his case will not be tried in the press. I hope I am being clear.
The following day, on March 10, 2005, a Victim Witness Specialist from the United States Attorney's Office met with members of the Libby community at a Community Action Group (CAG) meeting. The United States Attorney's Office purportedly held the meeting pursuant to the Justice For All Act, which enumerates the rights of federal crime victims and requires the Department of Justice and its employees and officers to make best efforts to inform victims of their rights under the Act. While the entire community of Libby is affected by asbestos issues, I am confident in this case the word victim was not intended to mean community. The Defendants object to several statements made at the CAG meeting by the Victim Witness Specialist and by a representative of the Environmental Protection Agency (EPA).
The objectionable statements by the Victim Witness Specialist include the following:
— The Specialist's statement that "the damage that was done... was probably, by far, one of the largest environmental crimes."
— The Specialist's statement that this prosecution "might open up some eyes for those other districts" and lead to future prosecutions in other districts.
— With regard to who may be a victim, the statement that
[Y]ou don't have to be physically diagnosed with an asbestos-related disease to be considered a victim. Many people are victims without being ill. There's financial hardship. There's just a number of avenues. The U.S. Attorney is adamant that everybody that feels they're a victim will be considered a victim and treated as such. So please don't think, well, I haven't been diagnosed or I don't have any family members that are ill. If you want to be a part of this, you're absolutely entitled to.
— With regard to whether a city or county may be a victim, the Specialist's response,
— In response to an inquiry about the quality of government counsel, the Specialist's statement in response:
And the judge made some very kind comments about [government counsel] in court the other day. There were the three attorneys for each defendant sitting there and the judge said,
— In response to an inquiry as to the possibility of a venue change, the Specialist's statement that "[F]rom the judge's comment [at the scheduling conference], he wants to keep it here in Montana."
— The Specialist's complimentary remark that the attorneys for the government did a good job of "selling their indictment [to superiors], showing that their proof was here before they could bring the indictment."
— the Specialist's statement that
The Defendants also object to an EPA investigator's statement at the meeting that "[t]here are certain categories of witnesses that we're going to be looking for, and so there's times that we'll still be making phone calls and still talking to people."
A number of the statements made by the Victim Witness Specialist at the CAG meeting were included in an article in the local newspaper the following week.
The Defendants contend that the statements listed above have improperly tainted the jury pool and prejudiced the Defendants by risking their right to a fair trial. They argue that the statements violate (1) the Court's orders in this case; (2) Local Rules 83.10(d)(6) and 83.13 governing release of public statements; (3) Department of Justice regulations regarding public statements, which are codified at 28 C.F.R. § 50.2; and (4) the United States Attorney's Manual § 1-7.500 regarding public statements. The Defendants ask the Court to "compel the Government to abide by the Local Rules of the District of Montana, the internal press guidelines of the Department of Justice, the United States Attorney's Manual, and this Court's previous rulings."
The United States contends that the statements by its representatives at the CAG meeting do not run afoul of the standards set forth in the various authorities listed by the Defendants. The prosecution argues that the statements made at the CAG meeting are not only authorized but compelled by the Justice For All Act, and therefore cannot be the basis for a violation of any of the controlling authorities.
The manner of the announcement of the Indictment by the United States Attorney on February 7, 2005 was addressed at the March 9, 2005 scheduling conference and, from my perspective, any issues arising from the presentation of the Indictment and the accompanying press release were resolved by the Court's warning at the scheduling conference. I thought my views about the events of February 7, 2005 were clear.
The United States Supreme Court has established an obligation on the part of district courts to take whatever affirmative steps may be necessary to protect a criminal defendant's right to a fair trial untainted by prejudicial comments in the media. See Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)("The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences."). The Court of Appeals for the Ninth Circuit has recognized that "the Sheppard court unequivocally imposed a duty upon trial courts to take affirmative steps to insure the fairness of a criminal proceeding in the face of excessive publicity." Levine v. U.S. Dist. Court for Cent. Dist. of California, 764 F.2d 590, 596 (9th Cir.1985)(citing Farr v. Pitchess, 522 F.2d 464, 468 (9th Cir.1975)). The Farr court noted that "[t]he most practical and recommended procedure to insure against dissemination of prejudicial information is the entry of an order directing that attorneys, court personnel, enforcement officers and witnesses refrain from releasing any information which might interfere with the right of the defendant to a fair trial." 522 F.2d at 468 (citing Sheppard, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600).
The foregoing cases require this Court to pursue whatever measures are necessary to insure a fair trial and prevent prejudicial pretrial publicity. As the Defendants point out, I have already taken such steps generally by and through Local Rules 83.10 and 83.13, and specifically in this case by informing the parties of my expectations at the scheduling conference. If it was not clear, then I hope to make it so now. This case will not be tried in the press. It will be tried in the courthouse and nowhere else.
Local Rule 83.10(d)(6) provides:
From the time of arrest, issuance of an arrest warrant or the filing of a complaint, information or indictment in any criminal matter until the commencement of...
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... ... otherwise.” Dep't of Just. Atty's Manual § ... 1-7.001; see also United States v. Grace, 401 ... F.Supp.2d 1057, 1062 (D. Mont. 2005) (§ 1-7.500 of the ... Justice Manual is “not enforceable by this ... Court.”); ... ...
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U.S. v. Grace, CR 05-07-M-DWM.
...were precluded from describing or identifying any witness as a victim. See dkt. # 714. And in a published Order, United States v. W.R. Grace, 401 F.Supp.2d 1057 (D.Mont.2005), the Court addressed the government's obligations under the Justice for All Act, which requires the government to co......