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April 16, 2009
In the famous words of former Griz great Michael Ray Richardson, “The ship be sinkin’.” In this case, we’re talking about the leaky tugboat known as the government-led prosecution in the ongoing W.R. Grace criminal trial. By all accounts, the good guys—those attempting to prove Grace executives covered up knowledge of deadly asbestos in Libby—are taking on water like the Titanic.

It doesn’t take Johnnie Cochran to size up the situation. Just step into the courtroom and look for yourself. You’ll find enough defense lawyers to take up every seat on one side of the room. You’ll hear those same high-priced defense lawyers deftly cross-examine witnesses, rarely receiving any objections. And you’ll notice their questioning usually follows a pragmatic line that, in our experience, ends rather elegantly. The defense attorneys sound straight out of a TV courtroom drama.

On the other hand, when lead prosecutor Kris McLean takes the podium, he’s regularly bombarded with objections from the sizeable defense team. By the time the objections are sorted out, we can hardly remember McLean’s original question. The prosecution looks overwhelmed and outmatched, and nothing like Perry Mason.

The clearest example of the mismatch occurred last Wednesday when District Judge Donald Molloy launched into one of his signature rebukes. After a day filled with sloppy questioning and sustained objections—law professor Beth Brennan likened it to “a law school evidence exam” on the Grace Case blog—Molloy cleared the jury from the courtroom and bluntly told McLean the score.

“Six weeks we’ve been at this,” he said, “and I don’t know what the conspiracy is. Where’s the conspiracy? At some point you have to prove that there was a conspiracy to do something illegal. I have listened as carefully as I can. I have visited with my law clerk to test my memory. What is the agreement to do something illegal?”

McLean attempted to explain the government’s case, but Molloy immediately shot him back down. “Maybe you don’t like it, and maybe it’s morally wrong,” Molloy said, “but they have to have an agreement to do something illegal.”

Molloy’s second statement cuts deep to those who feel Grace executives are clearly deserving of severe punishment. But morally wrong doesn’t always equal criminally guilty, and this case seems to be underlining that harsh lesson. We’re not ready to call the case closed, but we’re certainly starting to reach for the life vests

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