The Libby verdict: Did the judge play favorites?

Aricka Flowers Jun. 4, 2009, 3:00am


The acquital of W.R. Grace in Libby, Mont., brought cheers among asbestos defendants who for decades have had little to celebrate in courtrooms across the country.

But rumblings that the judge allegedly favored the defense are also being voiced by legal observers who followed the nearly three-month long trial.

The now bankrupt chemical company was accused of knowingly endangering the health of Libby residents by mining, processing and exporting asbestos-tainted vermiculite.

Early on in the government's prosecution of Grace, U.S. District Judge Donald Molloy dismissed many components of the prosecution's case during pre-trial rulings. These rulings raised eyebrows about the judge's intentions as the case played itself out; ending with an acquittal of Grace on May 8.

"This became a much more difficult case when the federal district court judge dismissed so much of the government's case during the pre-trial," said David Uhlmann, professor and director of the Environmental Law and Policy Program at the University of Michigan Law School.

Uhlmann led the U.S. Justice Department's environmental crime section when the government decided to bring charges against Grace. "The prosecution was able to get the charges he dismissed reinstated, but he remained skeptical, if not hostile, to the prosecution going forward," he said.

"There is an assessment that judges don't like being reversed and maybe he didn't take it well," Uhlmann continued.

"It appeared by his demeanor in the court that he was angry at the prosecution, even angrier that they were able to get his rulings reversed and that he took his anger out on the prosecution over the course of the case. I'm not a psychologist, but he certainly carried himself in a way that made you question if he was able to accept having his rulings reversed and whether he was mad at the government for appealing."

According to Uhlmann, Judge Molloy's alleged disdain for the overturning of his rulings was made evident by his actions in the courtroom. Uhlmann said he believes this was apparent in the judge's February 2009 ruling that there were no "identifiable victims" in the case, despite the fact that 200 Libby residents have died from asbestos-related diseases and thousands more have become sick due to exposure.

The ruling meant that many of the prosecution's witnesses were to be excluded from testifying in front of the jury.

"The defense would say Judge Molloy wasn't showing preferences and was instead calling it like he sees them," said Uhlmann. "But it manifested itself in many ways, for instance when he refused to acknowledge there were victims in the days leading up to the trial, which showed his thoughts on the merits of the government's case. The judge told the jury to disregard information they heard and took extraordinary action in front of the jury to discredit the prosecution. In a whole host of ways, the judge demonstrated his displeasure for the government."

But some legal experts say the judge's behavior could stem from his beliefs about the integrity of the case as opposed to his personal feelings about the prosecution or its ability to get many of his rulings reversed.

"The government's theory of the case presented a novel use of the Clean Air Act, so the judge had to make a lot of decisions without any guidance and it was very difficult for him to do," said Andrew King-Reis, law professor at the University of Montana. "This is a totally different conception of the Clean Air Act and it's never been done before, its not dumping or something like that."

Uhlmann says there is also a potential problem with the endangerment charges brought against Grace. According to Uhlmann, the conflict surrounding the charges could have greatly affected the way Judge Malloy presided over the case.

"There is one possibility that it wasn't so much a matter of the judge being unhappy with the prosecution or hostile to the government, instead it was just his belief that the endangerment charges brought by the government weren't valid," said Uhlmann.

"I think his actions reflected his honest assessment of the law," he said. "The judge dismissed the endangerment charges because he didn't think it could legally be brought. He was reversed, which means the judge was wrong. Yet, he even said he didn't think he was wrong. At a very real level, he was clearly struggling to reconcile himself with the decision of the ninth circuit to overturn his ruling. He could have just disagreed with it, but he carried it forward to how he presided over the trial."

Some say another sign that Judge Molloy may not have been playing favorites comes in the consistency of his orders and rulings. King-Reis said he believes the judge interpreted the law a certain way and ruled accordingly.

"The judge also said there is an interpretive approach which is that statutes should be strictly construed in favor of the criminal defendant because the state bears the burden to convict that person and prove guilt beyond a reasonable doubt," he said. "Therefore, ambiguity should be in favor of the defendant and you can see that all the way down the line; in every single decision you see the judge adhering to that interpretive approach."

"There were a hell of a lot of ambiguities because no one had done this before," King-Reis continued. "And then all of the decisions went in way of the defense, so it looks like preferential treatment in terms of the pre-trial rulings. But I think more of a consistent judicial philosophy; an appropriate judicial philosophy. All the power is with the government and the way we have set up the rules is so that the government has to overcome this huge burden, which I think is appropriate."

"It seemed like the judge berated the prosecution a number of times and that may have been justified," he continued. "But what you didn't see was him berating the defense counsel for any of their conduct. From a perspective of watching in the courtroom, again, it gave an impression of preferential treatment because the prosecution was beat up over and over again by the judge, but I don't know if there is any validity to that argument."

When the jury came back with an acquittal, Judge Molloy expressed his satisfaction with their decision.

"It is, I think, truly a reflection of how we are supposed to govern ourselves," said Judge Molloy. "Ultimately, it is the people of the community who have to make a decision. This is a case in which very few people know all of the evidence, and you do. We appreciate your service."

More News