Bernick lives in Chicago and has spent 32 years at the law firm of Kirkland & Ellis. He made his name as a litigator during the tobacco and breast-implant wars, and has a reputation for using charts and visual aids to explain complex medical and scientific issues to jurors with aplomb.

The W.R. Grace case turned out to be one of the biggest corporate triumphs of the year, and ended with a breathtaking coup de grace when a federal jury acquitted the company and three of its executives on all criminal charges of conspiracy and obstruction of justice.

Many courtroom spectators came to watch the Grace trial play out at the Russell Smith federal courthouse in Missoula specifically to see Bernick’s theatrics, and few were disappointed.

He’s been riding a wave of success ever since, and in March will move to the shores of Switzerland’s Lake Geneva to begin work in one of the colossal cigarette company’s top legal positions.

The January 2010 edition of The American Lawyer gave Bernick and Kirkland & Ellis a big nod in its “Litigation Department of the Year” competition, calling the Grace trial “the biggest corporate roll of the litigation dice in the last two years.”

“A loss for Grace would have been dire,” the article continues. “The company and several Grace executives were essentially accused of covering up their complicity in the asbestos-related deaths of dozens of residents of Libby, Montana, where Grace once operated a vermiculite mine. A conviction could have meant prison for the executives
and a crippling fine for the company.

“The odds of an acquittal in Montana—where years of news stories about the tragedy in Libby had tarred Grace—seemed low. But with prosecutors
refusing to budge on a plea deal, Grace and its executives had no choice but to go to trial. Kirkland & Ellis’s David Bernick and Laurence Urgenson coordinated the efforts of the enormous
defense team, which included lawyers from Weil, Gotshal & Manges; O’Melveny & Myers; and Mayer Brown.

“The issues,” says Bernick, who took the lead at trial, “were: How do you defend [Grace’s history in Libby] without minimizing
the tragedy? And how do you get the jury to focus on the weaknesses of the government’s theories as opposed to just going with the flow?”

Bernick succeeded at disrupting said flow by shifting jurors’ attention from the widespread death and illness in Libby to allegations of prosecutorial misconduct and weaknesses in the government’s case. He convinced jurors that lawyers made deals with witnesses and hid evidence from the defense. By the third month of trial, even the judge was instructing jurors that the government had “violated its solemn obligation and duty.”

While in Missoula, Bernick’s dedicated work ethic was obvious. He spent his early morning hours eating a light breakfast at the DoubleTree Hotel’s Finn & Porter restaurant while poring over case documents in preparation for the day in court. The restaurant’s manager told me that Bernick was so focused on his work each morning that he barely responded to waitstaff’s inquiries, but after the the trial ended he personally thanked everyone for being so accommodating.

Over lunch breaks, the 5-foot-7, silver-tongued lawyer would sit at a table in the public space directly outside of the courtroom, sipping a bottle of diet root beer, studying documents, and scribbling marginalia on his yellow legal pads.

Walt Peschel, 67, of Missoula brought the suit in May 2008, alleging a host of civil rights violations he says occurred during a confrontation with police two years ago. Peschel was arrested after he repeatedly disobeyed police orders to leave the side of an armed suicidal woman he was trying to assist, and was pushed or tackled by an officer when he eventually complied. Peschel, who maintains he was duty-bound as a physician to stay by the woman’s side, was subsequently hospitalized for three days.

But police say the man was profane and belligerent during the encounter and made a dangerous situation worse by refusing to step aside. Peschel was charged with obstructing police after the encounter, though a jury later acquitted him of the misdemeanor charge at trial.

U.S. Magistrate Judge Jeremiah C. Lynch presided over Tuesday’s summary judgment hearing in Missoula federal court, serving as the pretrial “fact finder” to determine whether Peschel’s claims fall under the applicable laws.

During the nearly three-hour hearing, Lynch grilled attorneys on both sides about the legal reasons that either support or dispute Peschel’s lawsuit.

An attorney representing Peschel said testimony and evidence about the disappearance of an in-car police video of the arrest should be admitted at trial, including testimony suggesting that the tape was purposely deleted by a disgraced former police officer, who was one of the last known people to view the video on the department’s computer system.

“This tape was deleted. It was destroyed,” said plaintiff’s attorney David Paoli. “It was valuable evidence that should have been produced to us at the criminal trial, and it should be available to us now. It would show the whole picture.”

Natasha Prinzing Jones, an attorney for the city of Missoula and the Police Department, said the digital file was one of 72 recordings corrupted and lost due to a technical glitch around the time of Peschel’s arrest. She said Paoli’s argument was “mere speculation,” and that administrative officials hired a forensic expert to recover the files, but no trace was found.

Lynch has already ruled that the police department had a duty to preserve the tape for its value as evidence, but will soon decide the extent of what issues lawyers can raise at trial. For example, plaintiff’s lawyers hope to introduce evidence about former officer Jason Huntsinger, who gave the command to arrest Peschel and later resigned from the department after a federal probe showed he downloaded child pornography on a work computer.

Paoli said he believes Huntsinger deleted the tape, and that the recording is “the best evidence we have of disproving officers’ testimony” that the incident was handled according to law.

Lynch said he would rule on the city’s four pending motions for summary judgment “as soon as practicable.”

The defendants have challenged the legal basis for the following of Peschel’s claims against the police department: negligent hiring practices, assault and battery, insufficient training and negligent supervision. They have also challenged his constitutional claims of privacy violations, his claim that police lacked probable cause to make an arrest, and his claim that police used excessive use of force and denied him medical care.

In the three months that I covered the criminal trial of W.R. Grace & Co., I frequently parked outside the Russell Smith federal courthouse in Missoula, averaging about two parking tickets a day.

Most mornings I’d pump a buck in quarters into the meter and make a frenzied dash to the courthouse to watch the trial, but then I’d forget to re-feed the meter over the lunch break. Some days, I might not feed the meter at all, figuring that a $2 ticket was better than squandering all of my quarters in one place and getting punished regardless, since the meter maids circumnavigate the city center in search of expired tickers.

In the final weeks of trial, the heap of yellow tickets that had amassed on my passenger seat had become a symbol of my unflagging trial coverage, and I wasn’t about to start paying them after I’d come so far. Bad idea.

As soon as the trial wrapped up, I once again began spending most of my time  at the ultra-busy C0unty courthouse, where an assembly line of felons appear before four judges on a near-daily basis. I’d park my short on Ryman Street instead of Pattee, but in a matter of days I was greeted by a not-so amusing laurel for my distinguished slacker-tude – a bright orange boot immobilizing my Subaru.

There’s all kinds of measures I could have taken to avoid the daily tickets, like parking my whip in the downtown garage and walking to the federal courthouse. Or parking at the Missoulian and walking across the bridge. But I’m not that organized.

It cost me $160 to cover the parking violations and have the boot removed. But the really sad and pathetic thing is this was the fourth time I’ve been booted since I started working at the Missoulian in 2005, making regular downtown beat checks and earning plenty of yellow-enveloped parking violations.

I’m saying it right now, for the record, that was the last boot my poor station wagon is going to endure. I won’t swear off parking tickets yet, but I’m goning to be dang punctual about paying them on time.

David Bernick, lead counsel for W.R. Grace & Co., stands outside the Russell Smith federal courthouse on Friday, moments after a jury unanimously acquitted the global chemical company and three former executives. Photo by Michael Gallacher.

After deliberating one full day, jurors in the W.R. Grace & Co. trial unanimously acquitted the global chemical company and three former executives on Friday, ending the largest environmental crimes prosecution in United States history.

Grace and three individual defendants – Robert Bettacchi, Jack Wolter and Henry Eschenbach – were found not guilty of charges relating to a conspiracy involving Clean Air Act violations and obstruction of justice. The case began in 2005 when a federal grand jury handed down an unprecedented indictment, alleging a 30-year conspiracy to defraud the government and knowingly endanger the residents of Libby.

A mortality study at the Center for Asbestos Related Disease in Libby has identified 227 community members who are dead from asbestos disease, and lists more than 1,800 active cases resulting from exposure to the deadly fiber. The study also attributes scores of deaths to non-occupational asbestos exposures, and finds that 77 non-miners have died of asbestos disease since 1998.

“Nothing can erase the legacy of what happened many, many years ago in Libby. But the notion that the company for the last 30 years engaged in this criminal conduct is not grounded in fact,” said David Bernick, lead attorney for Grace, who has repeatedly called the prosecution a miscarriage of justice.

The jury of six men and six women received the criminal case Wednesday evening and reached their verdicts Friday morning. They faced the onerous task of interpreting evidence and testimony that was presented over the course of 35 days, as well as determining whether the alleged crimes conduct occurred within an applicable time frame. The criminal provision to the Clean Air Act, for example, wasn’t enacted until 1990, the same year the Libby mine ceased operations.

One juror, an employee at the Rocky Mountain Elk Foundation, blotted her eyes with tissue as the court clerk read aloud the lengthy verdict form, while the defendants, who faced up to 15 years in prison, exchanged expressions of relief with their attorneys and spouses.

As the hard-fought trial drew to a close, charges against one-time employees William McCaig and Robert Walsh were dropped at the request of prosecutors, who conceded they lacked the evidence needed to convict the men. A sixth defendant, O. Mario Favorito, in-house legal counsel for Grace, is scheduled to stand trial in September, though it’s unlikely the prosecution will go forward given Friday’s verdict.

“This is the longest trial that I have been involved in,” said U.S. District Court Judge Donald Molloy, having first rapped his gavel Feb. 23 to commence the proceedings. “It is, I think, truly a reflection of how we are supposed to govern ourselves. Ultimately, it is the people of the community who have to make a decision. This is a case in which very few people know all of the evidence, and you do. We appreciate your service.”

Members of the prosecution team declined to comment, saying Molloy’s long-standing gag order prohibited them from discussing the case. Officials with the U.S. Attorney’s Office said the order remained active because Favorito’s case has not been dismissed.

“The Jury has spoken, and we thank them for their service. We are refraining from further comment at this juncture because one individual awaits trial in connection with this case,” according to a joint statement released by the Montana U.S. Attorney’s Office and the Environmental Natural Resources Division.

On Wednesday night, after absorbing 35 days of testimony and evidence, jurors seated in the environmental crimes trial of W.R. Grace & Co. were spirited away to a remote chamber in the Russell Smith federal courthouse to begin deliberations.

There they remained Thursday, hashing out the proof for the first time since Feb. 19, when the case against Grace and five former executives began. Since then, the cast of individual defendants has been winnowed to three, but the jury has for the most part remained static – just one alternate was called on to relieve a juror. They’ve been prohibited from discussing the case (even with one another) or following reports of the proceedings in the media, and likely have a lot to chew on.

Before receiving the case, the dedicated group of six men and six women heard an impromptu pep talk from U.S. District Judge Donald Molloy about the sanctity of the criminal justice system and the value of the jurors’ civic duty. Court marshals and bailiffs were then administered their oaths as officers of the court and, flanked by a librarian’s cart filled with bound documents, ushered the jurors out of the courtroom. Legal instructions were finalized, brain food was ordered, but what follows will take place out of the public’s purview.

Today, a few of us reporters kept vigil in the upstairs lobby of the courthouse, but a verdict still seems distant. Extrasolar, even. That’s pure speculation, of course – predicting a jury’s behavior is like reading tea leaves – but given the length of the trial and the complexity of the charges, this could take a while.

I spotted the prosecution team having burgers at the Missoula Club, and they seemed upbeat, but reticent to talk about anything pertaining to Grace – Molloy’s gag order is apparently still active. A pair of defense lawyers dropped by the courtroom to retrieve a forgotten power cord, but things were otherwise quiet.

A friend in the service industry told me that a sizable portion of the defense team enjoyed a few glasses of wine last night at the Red Bird, and they’re probably nursing a collective hangover in the many office spaces rented across town.

With the cloudy weather and all, being posted out at the courthouse wasn’t half bad. Andrea Peacock, the author of “Libby, Montana: Asbestos and the Deadly Silence of an American Corporation,” lay sprawled out on a couch with her laptop, while the venerable Andrew Schneider, who broke the Libby story 10 years ago for the now-defunct Seattle Post-Intelligencer, researched the finer points of Rule 29 motions – requests to Molloy from the defense team for a judgment of acquittal. Amy Linn, who’s been covering the case for Bloomberg, worked away on one of the upholstered chairs, and yours truly opted for a hard wooden bench along the wall, not for its ergonomic comfort, but because of its proximity to an electrical outlet (the battery on my laptop is toast).

It was a good day to stay inside and smell the furniture. Let’s hope the jurors feel the same way; they could be at it for a long time.

Hotly contested by a determined fleet of defense lawyers, the motion-a-day trial plodded along arrhythmically at times, and the presentation of evidence hardly emerged as a single, neat narrative. But on the final day of proceedings, attorneys from both sides endeavored to sum up their cases with lengthy closing arguments.

For 10 hours, jurors scribbled on legal pads, listening as prosecutors described an environmental tragedy that has claimed the lives of hundreds of Libby residents, and which continues to sicken community members with asbestos-related disease.

Defense lawyers agreed that a tragedy had indeed occurred in Libby, but urged jurors not to confuse tragedy with criminal actions. Moreover, the defense attorneys said government prosecutors had compounded the tragedy through numerous instances of misconduct and accused them of carrying a “political prosecution” too far.

Read more.

U.S. District Court Judge Donald Molloy is adamant that jurors will receive the case and begin deliberations by Wednesday evening, and said he’d rein back long-winded lawyers and shorten the lunch break to accommodate that schedule.

“You will get the case tomorrow,” Molloy told the jury. “We will place the case in your hands and trust your judgment to follow the law and arrive at a just verdict.”

Grace and three former employees are charged with a federal conspiracy involving Clean Air Act violations and obstruction of justice. The charges relate to whether the company and its top employees knew they were endangering the community of Libby by mining asbestos-laced ore, and whether they did so in violation of federal law.

After 11 weeks of testimony, jurors were excused early on Tuesday afternoon, though lawyers on both sides worked into the evening, hashing out the final jury instructions in Molloy’s chambers.

Last week, Molloy proposed that the process of drafting final instructions be held in open court for the sake of “transparency.” While the undertaking typically occurs in a private conclave and is off the record, Molloy noted that the Grace case has drawn wide public interest, and suggested that forthrightness might help clarify the complex legal details.

Instead, the judge summoned lawyers for an in-chambers confab, excluding the media and other courtroom spectators. The about-face prompted some observers to wonder if the judge might be winnowing certain charges out of the eight-count indictment, a decision he has full authority to make.

Molloy has yet to rule on a host of defense motions for acquittal, and previously intimated that he would reserve judgment until after the jury returns a verdict; however, he may do so at any time.

Most daunting for the government is whether the evidence shows that Grace’s alleged criminal actions occurred within an applicable time frame, which has been narrowed by statutes and deadlines. The criminal provision to the Clean Air Act, for example, wasn’t enacted until 1990, the same year the Libby mine ceased operations. Prosecutors therefore face the difficult task of proving that Grace committed overt criminal acts not only after 1990, but also after 1999. That’s when the contamination was discovered, triggering  a five-year statute of limitations.

The environmental crimes trial wrapped up much like it began, with testimony from two key government witnesses – Paul Peronard, an emergency coordinator for the U.S. Environmental Protection Agency, and Melvin Parker, a sickened Libby resident who bought asbestos-contaminated mining property from Grace.

“Life is a circle,” quipped Grace’s lead attorney, David Bernick, as he commenced a final round of legal sparring with Peronard.

Thomas Frongillo, who represents former Grace vice president Robert Bettacchi, conducted a quarrelsome examination of Parker, contesting the veracity of the Libby man’s earlier testimony.

Specifically, Frongillo grilled Parker about previous statements that he made about having no knowledge about the health hazards associated with asbestos-laced vermiculite, which was scattered across the property when he bought it.

Frongillo concluded the examination by accusing Parker of lying outright, saying he feigned ignorance about the asbestos hazards when the EPA arrived in order to recoup his financial losses, and to justify a lawsuit.

Parker had a clear motive for “sticking to his guns,” Frongillo said.
“If you changed the story and you admitted you knew as far back as 1993 that there was asbestos contamination on your property, then you wouldn’t have gotten to keep the $1.3 million the EPA gave you for the property,” Frongillo said. “And if you had told the truth, your lawsuit against Grace, which is based on the allegation that all this information had been hidden from you, that lawsuit would have been a total fraud.”

Frongillo accused Parker of knowing all about the extent of the contamination, and yet “decided to go forward [with the land purchase] with your eyes wide open.”

But Parker, who bought the land in 1993 in order to build a tree nursery with his wife, Lerah, stood his ground. He maintained that neither Grace officials nor government agents ever told him the vermiculite-strewn property posed a danger to him or his family, who lived on the property for a half-dozen years.

I’ve also been having way too many Grace-induced dreams, which all play out like a Fellini movie, but are populated by various courtroom characters. Last night, I found myself in a dimly-lit parking garage, perhaps searching for some sage advice from a Deep Throat, but I wound up having a bubble-gun fight with defense lawyer David Bernick. Go figure.

At the same time, the sheer length of the trial has created a sort of cohesive bond, a fellowship that transcends partisanship and factionalism. This was never more evident than today.

Early in the morning, Assistant U.S. Attorney Kris McLean moved to dismiss charges against defendant William McCaig, who, on his courtroom exodus, bade the prosecution team a fond farewell with handshakes all around.

The jubilation continued throughout the day, during recesses in the court proceedings, and at one point defense lawyer Carolyn Kubota even placed a hand on McLean’s shoulder and made a patting motion. Both lawyers smiled, chuckled and exchanged pleasantries that I couldn’t quite make out.

In the evening, Judge Molloy excused the jurors and the lawyers until Tuesday, and everyone expects deliberations to begin by next Friday.  Out-of-town lawyers are only too happy to go home to their respective metropolises and decompress for a few days, while local counsel will take advantage of this weekend’s spring weather.

But just because folks in the courtroom are breathing a sigh of relief doesn’t mean we should forget that scores of people in Libby are gasping for air – and growing less confident every day that Grace will be held criminally accountable for their suffocating.

Of course, as we all saw in the classic film “12 Angry Men,” anything can happen when a group of people gather in a room and start confabbing about a case that began nine weeks earlier, debating evidence and testimony for the very first time over soggy pizza.

Whatever the outcome, let’s not forget about Libby. It just wouldn’t be right.

When it was determined that Locke would again take the stand and resume cross-examination, Molloy had to explain to jurors why the government would not have a second chance to examine the witness, a tactic known as re-direct.

Here’s the instruction he drafted. His honor doesn’t mince words:

“In this case, the Department of Justice and the United States Attorney’s Office have violated their constitutional obligations to the defendants, they have violated the Federal Rules of Criminal Procedure, and they have violated orders of the Court.

“The United States Supreme Court has determined that when a defendant is on trial in the federal court, prosecutors have a constitutional obligation to turn over to the defendant evidence that is favorable to the accused either because it is exculpatory or because it is impeaching, that is, the proof may provide information that undermines the credibility of any witness called by the prosecution in the case.

“The government and its agents cannot suppress any such proof either willfully or inadvertently. The rules of criminal procedure place an obligation on the government and its agents, to produce certain kinds of evidence or proof if it is requested by the defendants or ordered by the court.”

Read the instruction to jurors in its entirety (Judge Molloy did).