W.R. Grace Trial: Favorito, Stringer Will Be Tried Separately

The federal judge presiding over the trial of W.R. Grace & Co. and seven of its former and current executives is allowing two of the executives to be tried separately from their co-defendants.

W.R. Grace and the seven men were indicted on Feb. 7, 2005, on charges of conspiring to hide the health hazards of the company's asbestos-contaminated vermiculite mine in Libby, in addition to charges of obstruction of justice, wire fraud and violating the Clean Air Act.

In a 46-page order issued earlier this month, U.S. District Judge Donald Molloy granted requests by in-house legal counsel O. Mario Favorito and former mine manager Alan Stringer to be severed from the main trial, which is scheduled to begin Sept. 11.

Favorito and Stringer will be tried jointly beginning on March 19, 2007.

Molloy, however, denied requests by the other five defendants Robert Bettacchi, Henry Eschenbach, William McCaig, Robert Walsh and Jack Wolter to be tried separately from the company and, in some cases, from the other co-defendants.

The original 10-count indictment was revised on June 26 to drop two counts of wire fraud. All eight defendants on July 19 pleaded not guilty to the revised indictment.

Molloy: Jury Can Handle Trial

Defense lawyers contended, among other things, that a joint trial would compromise their clients' right to a fair trial and would increase the risk of a defendant being found guilty by association.

Molloy rejected defense attorneys' assertions that the jury could become overwhelmed by the length of the trial and the complexity of the evidence presented, ultimately leading to jurors confusing the defendants and producing "an unreliable verdict," in the words of Molloy.

"I do not believe that the alleged wrongdoing in this case and any defenses to the alleged wrongdoing are beyond the comprehension of the typical juror," Molloy wrote. "The jury in this case will approach their service with great care and attention and will strive to treat each defendant fairly and individually. They will be given detailed guidance and limiting instructions from the court."

Defense attorneys also argued that the W.R. Grace case qualifies as a "mega-trial," referring to a 9th U.S. Circuit Court of Appeals ruling that suggested district courts should be mindful of the potential need to separate defendants in multi-defendant trials.

Molloy also rebuffed this argument, asserting that the W.R. Grace trial will not last as long as the trial referenced by the appeals court ruling.

"The defendants' repeated predictions of a trial lasting longer than 6 months are inaccurate," Molloy wrote. "There are only eight defendants, and they have worked in concert throughout this proceeding. Every defendant is named in the conspiracy count that lies at the heart of this prosecution, meaning separate trials would multiply, rather than reduce, the courtroom time needed to try this case."

Exceptions to the Rule

That said, Molloy points out that the requests by Favorito and Stringer to be tried separately "present an exception to this analysis."

As W.R. Grace's in-house legal counsel, most of Favorito's conduct related to the indictment is protected by the company's attorney-client privilege, Molloy wrote.

Meanwhile, Stringer has submitted "documents of exculpatory value" that are "incompatible with Grace's right to a fair trial," according to Molloy.

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