Posted by Paul Cassell:
Who Are "Victims" of Environmental Crimes? Ninth Circuit Fight Brewing in the
W.R. Grace Prosecution:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235494553
Yesterday the criminal trial of the W.R. Grace & Co. and various
responsible corporate officers began in U.S. District Court in
Missoula, Montana. The trial is one of the most-watched environmental
prosecutions by the Justice Department in recent memory, as it
involves allegations of release of asbestos into Libby, Montana over
the last several decades. Law professors and law students at the
University of Montana School of Law are running [1]this very
interesting blog tracking the trial.
An extremely important crime victims' rights issue has come up during
the case, which will be resolved this week by the U.S. Court of
Appeals for the Ninth Circuit: Are persons who have been endangered by
an environmental crime sufficiently "harmed" to obtain rights under
the Crime Victims' Rights Act?
According to the indictment, over more than three decades, defendant
W.R. Grace & Company mined vermiculite ore containing asbestos and
released asbestos into the air around Libby. The indictment alleges a
conspiracy to knowingly endanger persons in Libby as well as several
substantive endangerment counts under the Clean Air Act, [2]42 U.S.C.
� 7413(c)(5)(A).
The Crime Victims' Rights Act extends its rights to all "victims" of
federal offenses, which it defines as persons "directly and
proximately harmed as the result of the commission of a federal
offense." [3]18 U.S.C. � 3771(e). In a pre-trial ruling, however, the
U.S.District Judge presiding over the trial concluded that the charges
involved mere �risk of harm� rather than �harm� itself. The district
court stated in a [4]short written order that the charges involved
exposing the witnesses
to an imminent risk of harm. The [Crime] Victims� Rights Act, on
the other hand, defines a crime victim as �a person directly and
proximately harmed.� . . . One plausible resolution of the issue
here is to say that the federal offenses alleged in the Superseding
Indictment have �victims� who have been exposed to an imminent risk
of harm, but who have not necessarily been harmed. This
interpretation leads to the conclusion that because victims of the
federal offenses alleged are not necessarily harmed, they are not
necessarily victims under the Act, which are by definition person
directly and proximately harmed.
I am representing two residents of Libby, Montana, pro bono on this
matter -- Mel and Lerah Parker. This morning I am filing in the Ninth
Circuit [5]a petition for a writ of mandamus for them arguing that the
district court's ruling was erroneous. Here is a summary of my
argument:
The district court�s conclusion threatens to strip crime victims of
their rights in a whole host of federal criminal proceedings and
should be reversed for three separate reasons.
First, the Superseding Indictment alleges that the Parkers have
been placed in �imminent danger of death or serious bodily injury.�
Being placed in grave danger is, ipso facto, a harm sufficient to
trigger the protections of the CVRA. Any other conclusion would
mean that there would be no �victims� of a whole host of federal
offenses that involve threat of injury rather than actual physical
injury, including not only the most serious environmental crimes
but other federal offenses such as attempted murder, drive-by
shooting, assault, child endangerment, and mailing of threatening
communications. These offenses are not �victimless� crimes because
they create fear and other emotional injuries. The Parkers have
been harmed by the defendants� crimes because of the obvious
psychic harm stemming from being placed in the shadow of imminent
death and serious bodily injury. Moreover, in this case the Parkers
have suffered very tangible harm from being forced to undertake
medical monitoring to detect any asbestosis that might develop. For
reasons such as these, this Court has already held that a person
who is knowingly exposed to a hazardous substance has been harmed.
United States v. Elias, 269 F.3d 1003, 1021-22 (9th Cir. 2001).
Second, even if physical injury were a necessary precondition for
the Parkers to claim their rights, they have suffered physical
injury. Tragically, they both have asbestosis � a clear physical
harm that the district court simply ignored in denying them �crime
victim� status.
Finally, for several years it has been the �law of the case� that
the Parkers (and other victim-witnesses like them) were protected
by the CVRA. Shortly before the trial, the district court abruptly
changed their status by concluding that they were not protected
victims under the CVRA. The district court violated the �law of the
case� doctrine in reversing course without any good reason for
doing so.
The Justice Department has also filed its [6]own petition for a writ
of mandamus.
The CVRA requires a decision by the Court of Appeals within 72 hours.
Presumably, then, the Ninth Circuit will hand down a decision on this
issue by Friday. Its ruling will presumably be quite important in
establishing who can claim the protections of the Crime Victims Rights
Act. More information can be found [7]here.
References
1. http://blog.umt.edu/gracecase/
2.
http://www.law.cornell.edu/uscode/uscode42/usc_sec_42_00007413----000-.html
3. http://www4.law.cornell.edu/uscode/18/3771.html
4. http://volokh.powerblogs.com/files/molloyruling.pdf
5. http://volokh.powerblogs.com/files/parkermandamus.final.pdf
6. http://volokh.powerblogs.com/files/governmentpetition.pdf
7. http://www.law.utah.edu/news/show-news.asp?NewsID=244
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