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Mont. Judge Allows Libby Asbestos Case to Proceed

(CN) - After blasting the government for charging "a larger case than the one it prepared to prosecute," a federal judge in Montana declined to dismiss criminal charges against W.R. Grace & Co. and four former executives over their alleged role in covering up widespread asbestos poisoning in Libby, Mont.

"[The] themes of poor planning and incompetence are common threads throughout the government's spotty compliance with its disclosure obligations dating back to the beginning of the case," U.S. District Judge Donald Molloy in Missoula wrote. "However, incompetence is not bad faith. Poor planning is not malice. A systemic flaw is not always flagrant conduct. And the damage, while serious, is not irreparable."

The defendants accused prosecutors of repeatedly violating court orders to turn over evidence that might have helped their defense. They also objected to the testimony of one of the prosecution's star witnesses, Robert H. Locke, saying his credibility has since been shot by information about his character and relationship with prosecutors.

On Monday, prosecutors apologized before Judge Molloy for any missteps, which they insisted were of minimal impact to the case.

"The truth of the matter is that we just dropped the ball," said Tim Racicot, an assistant U.S. attorney.

"Implicit in this line of argument is the complaint that the court has overburdened the government by issuing excessively broad discovery orders," Molloy wrote. He reminded prosecutors that the size of the case was the government's own choosing. "The Constitution and law do not yield when the government casts a wide net in the charging decision."

Molloy dismissed all charges against defendant Robert Walsh and declined to throw out Locke's testimony.

Prosecutors had argued that W.R. Grace executives knew since the 1970s that the asbestos-laced vermiculate mined outside Libby was poisoning workers and residents of the small town of about 2,600 in northwest Montana.

W.R. Grace sold vermiculite products under the brand name Zonolite, named for the Zonolite Mine where the substance was mined. The company shut down the mine in 1990, after several hundred residents of Libby died or became ill from asbestosis and other asbestos-related diseases.

If convicted of the most serious charges, the retired executives face up to 15 years in prison, and W.R. Grace could end up paying hundreds of millions of dollars in fines and penalties.

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