Grace lawyers seek delay in Libby mine trial’s start

MISSOULA – A full day of pretrial arguments in the government’s case against the W.R. Grace Co. and some of its top former officials ended Wednesday with a request to postpone the Sept. 11 trial by six months.

U.S. District Judge Donald Molloy adjourned immediately after the request and did not indicate how he would rule. Molloy noted some of the defense attorneys said earlier in the day that there was enough time to prepare for the scheduled trial.

A federal indictment accuses Grace and seven officials of conspiring to conceal health risks posed by the company’s mine in Libby. Hundreds of people in the northwestern Montana town have been sickened, some fatally, by exposure to asbestos from the mine. It closed in 1990.

Lawyers were given 18 months to prepare for the trial this September.

Defense attorney Ron Waterman said the four months remaining are inadequate for several reasons. They include the filing of 400,000 U.S. Environmental Protection Agency documents in the last week or so, he said. Those are atop 1.4 million documents filed previously, he said. Lawyers need more time to examine documents and the growing list of witnesses, Waterman said.

Prosecutor Kris McLean said the trial calendar remains workable. The latest EPA documents were available in Denver for some time and were not simply loaded on the defense as a surprise, McLean said.

He said presenting the government’s case, which involves about 240 witnesses and 750 exhibits, will take eight to nine weeks.

Waterman said that will leave the defense’s time for rebuttal chopped up by the winter holidays. Starting the trial early in 2007 would be smoother, he said.

Besides the request to delay the trial, Molloy is considering motions to dismiss charges on grounds that too much time has elapsed since offenses in Libby allegedly occurred.

“Memories have faded; witnesses have died,” said David Krakoff, representing defendant Henry Eschenbach, former Grace health director. Some of the dead were people who would have provided effective defense testimony, Krakoff said.

Federal prosecutors dragged their feet, said Krakoff, who suggested news coverage of conditions in Libby finally spurred the government into court action.

“For the government to say they were not aware of the fundamental facts in this case until 1999 or later simply cannot hold water,” Krakoff said.

Prosecutor Kevin Cassidy said the defense was speculating about the content of testimony that some from the Grace staff would give if they were alive. Other defense resources are accessible, and the unavailable testimony emphasized by Krakoff does not justify dismissing charges, prosecutors said. They also said the court case was not filed earlier because Grace hampered federal investigators as they tried to gather information about the mine’s environmental impact.