Lawyers for Powers Fasteners Inc., the epoxy company charged with manslaughter in the Big Dig tunnel ceiling collapse, will ask a judge next week to dismiss the indictment against the firm or disqualify Attorney General Martha Coakley from prosecuting the case.
The company, facing the only criminal charges brought in the accident that killed 38-year-old Milena Del Valle, will argue at a Dec. 5 hearing that Coakley should not have gotten involved in the prosecution because her office had previously launched a civil case seeking millions in damages for the ceiling cave-in from Powers and other companies.
Because she was also seeking civil damages, she could not be a "disinterested prosecutor," a right guaranteed by the US Constitution and federal and state law, lawyers for the company wrote in a 32-page memorandum filed last week. They argued that Coakley ignored evidence of errors made by state officials because indicting someone would help her chances of recovering millions in the civil case.
"Suffice it to say that the Attorney General's characterization of the facts cannot be seen to be anything less than advocacy, transparently driven by a client's very significant financial interest, and far from the disinterested search for truth to which the defendant was entitled," wrote Powers Fasteners' lawyers, Max Stern and Martin Levin, in the document filed in Suffolk Superior Court Nov. 21.
Emily LaGrassa, spokeswoman for the attorney general, declined to comment, saying the office is legally barred from speaking publicly about the pending case.
When Powers Fasteners first leveled the conflict-of-interest charge in August, Coakley called it "totally without merit. The defendant should file whatever motions it chooses after it is arraigned on the involuntary manslaughter charges on September 5, and those motions will be addressed in the only appropriate venue - in court . . . We are confident that we will successfully resolve these issues in court," she said at the time.
The legal action springs from the July 2006 tunnel accident in which concrete ceiling panels in an Interstate 90 connector fell and crushed the car Del Valle was riding in. Federal investigators concluded the accident was caused by faulty ceiling bolt epoxy that was used to hold the panels in place. Powers is one of more than a dozen companies and agencies involved in the design, construction, and inspection of the ceiling.
In the criminal case, New York-based Powers Fasteners is accused of failing to warn construction contractors and project managers of the potentially deadly consequences of using a fast-drying glue to secure the ceiling in the tunnel.
In their motion to dismiss, lawyers for Powers Fasteners denied the allegations, saying the company did nothing wrong and briefed state highway department officials that fast-set epoxy was not safe for overhead use long before the tunnel ceiling was built.
They argued that Coakley ignored that information to bolster the prospects for a hefty civil settlement. They also alleged Coakley violated the law by pursuing criminal charges and a civil settlement at the same time.
The attorney general has used the threat of criminal prosecution as leverage in the civil case and violated the sanctity of the secret grand jury by allowing lawyers working on the civil case to appear before the grand jury that was convened earlier this year to decide whether anyone should be criminally charged, they argued.
That alone is grounds to dismiss the indictment, lawyers for Powers wrote.
"Because the Attorney General has represented, and continues to represent, various entities in a civil action based upon the same facts . . . the . . . principles of law prohibited the Attorney General from conducting the grand jury investigation, from seeking from that grand jury an indictment against this defendant, and from appearing in this prosecution," the lawyers wrote.
If the judge, Patrick Brady, does not dismiss the charges, the lawyers argued that he should remove the attorney general and her special assistant attorney general, Paul F. Ware Jr., head of the litigation department of the firm Goodwin Procter, and appoint an independent prosecutor to "prevent the continuing objective of the Commonwealth to seek millions of dollars in damages from infecting the proceedings going forward."
Ware, who was appointed by Coakley in March to oversee the Big Dig investigation, has billed the state close to $1 million. Besides prosecuting Powers, Ware and two other lawyers from his firm are also negotiating with Bechtel/Parsons Brinckerhoff, the consortium that managed the Big Dig, seeking a settlement of hundreds of millions of dollars.
