W.R. Grace Judge Lets Trial Proceed, but Kirkland's David Bernick Roughs Up Key Government Witness
By Andrew Longstreth
April 29, 2009
Just what kind of law doesn't David Bernick practice? We've long known about his expertise in mass torts and product liability cases. And a couple months ago, we highlighted his work on behalf of Dow Chemical in a busted merger case against Rohm and Haas in Delaware Chancery Court. Now the Kirkland & Ellis partner is showing off his criminal defense skills, representing longtime client W.R. Grace in the high-stakes trial over Grace's alleged complicity in the release of deadly asbestos particles in its mining operations in Libby, Mont.That case, often described as the biggest environmental crimes trial in history, has been pretty hot lately. At a hearing Monday, Bernick and lawyers representing former Grace executives asked federal district court judge Donald Molloy to throw the case out. The defense lawyers complained about prosecutors withholding key documents and allowing one of their key witnesses--former Grace executive Robert Locke--to lie on the stand. Locke testified, for example, that he had met with prosecutors six times, but the number of meetings was actually more than 20, according to documents belatedly released by prosecutors to the defense. (For a look at all of the defense briefs on their motions for directed acquittal, check out the truly amazing University of Montana blog on the trial, which is staffed jointly by students from the university's law and journalism schools. The blog has links to key documents, background information, and a minute-by-minute account of courtroom proceedings.)
Despite declaring that prosecutors were guilty of "inexcusable dereliction of duty" in their handling of Locke's testimony, Judge Molloy on Tuesday ruled that he would not dismiss the case against Grace. But he did tell jurors that they should view Locke's testimony with "great skepticism," according to The New York Times. He also allowed the defense to take another shot at cross-examining Locke. Bernick, a fiery man, made sure the prosecution paid for its mistakes.
"The government, when they put you on the stand, knew about all the meetings," Bernick asked.
"Yes," said Locke.
Then, according to the Times, Bernick went in for the kill. "The purpose was to be candid--you failed that test, correct?"
"I was wrong," said Locke.
Defense lawyers have told Molloy that they expect to wrap up their case next week, so we'll soon find out how good a job Bernick did at discrediting the star government witness.
