WR Grace owns a now closed vermiculite mine in Libby in northern Montana. Mining vermiculite, used for insulation, involves production and dissemination of asbestos. As mine tailings were hauled about the countryside, it appears that homesites, farms, racing tracks and lots of places in Libby were contaminated by asbestos.
This contamination is related to significant, by any measure horrifying, occurrences of asbestos-related illnesses and many deaths.
I do not know when W.R. Grace bought this property; disclaimer, I represented W.R. Grace on a few oil and gas related cases in Wyoming in the 1980s.
The U.S. Attorney in western Montana decided to prosecute the company for criminal offenses; the case was tried in 2009 for 11 weeks in federal court in Missoula, and the company was acquitted.
The chief witness against Grace was a former Grace employee. This is not surprising, as it is hard to prove a case against a corporation without a whistle-blower.
The whistle-blower in this case was a disgruntled former managerial employee, Robert Locke. Like many corporate whistle-blower cases, the witness had run-ins with managers and had a grumpy if not a retribution- motivated attitude.
Key issues at the trial involved discussions between Locke and his bosses about sales of contaminated land to loyal company employees who were later horribly sickened.
A family who bought contaminated land sued Grace for terrible health problems. One of the hotly disputed issues was whether Grace knew the land was contaminated before the sale. Locke testified at trial that his boss knew, and said “caveat emptor” (buyer beware). But Locke had stated during his pretrial deposition that he had no meeting about the sale.
This sets the stage.
Journalists in Montana have been promoting experiments in coverage of high-profile trials. The W.R. Grace trial became part of this experiment. Nadia White is a former Casper Star-Tribune reporter and press secretary for one-time gubernatorial candidate, Kathy Karpan. Nadia is now a professor of journalism at the University of Montana, participated in coverage of the trial and wrote an article for the journal of the Montana Bar Association.
Part of the experimental coverage of Montana trials involved real-time postings of testimony from the courtroom. Volunteer students provided constant coverage. The goal was to allow Libby residents and others to have constant updates on a trial of great importance. Journalists and volunteers could provide instant transparency.
Here comes the conflict. Courts routinely rule that witnesses may not talk to other witnesses once the trial begins. This is an important due process requirement. If a witness testifies to a certain course of events or conversation, and another witness who was present is called to the witness stand, the witnesses should not be allowed to confer and reconcile their testimony before the second one testifies.
Judges routinely order the parties and witnesses to not talk about testimony.
In the Grace case, the in-court journalists were posting real-time accounts of testimony. Locke, outside the courtroom, read the posts. He later testified, contrary to his pre-trial testimony, that he met with his boss who stated the “caveat emptor” bit.
Locke’s change of recollection generated a firestorm of controversy in the courtroom. Grace’s attorneys accused him of changing his recollection after he read the posts from the courtroom. The judge was furious. The jury, whose thought processes we will never know, acquitted Grace.
People with ink in their veins champion transparency. People who value due process, sometimes defense attorneys, and those who want successful prosecutions to not be derailed probably don’t want so much transparency. This is a very complicated set of questions.
What do you think? Should journalists twitter and post in the courtroom, or not?