Entrevista a Doctora Berta, militante y periodista oxaqueña
Revolucionemos Oaxaca
Desde su regreso del exilio a Oaxaca, la Doctora Berta ha realizado reuniones abiertas con personas que participaron en el movimiento social del 2006, para exponer colectivamente un análisis sobre la APPO y sus posibles rumbos. En entrevista, la Doctora habló sobre la impotencia y desilución que ha observado en las reuniones que ha realizado y sobre la perspectiva que tiene de la APPO y su reorganización.
¿Cuál es su situación legal actualmente?
La semana pasada me dieron un amparo definitivo, sin embargo no es garantía de nada porque pueden recalificarme los cargos, es decir, cambiales de nombre y sacar otra orden de aprehensión.
¿Cómo observó el movimiento social cuando regresó a Oaxaca?
De todos los miles que participaron en el 2006 (lógico), ahora no hay ni la décima parte ¿Por qué? pues es simple. Primero el miedo, porque además hay acciones de represión, de amedrentamiento, si bien ya no son como en el 2006 y parte del 2007, siguen ahí. Han ultra armado a la policía, andan patrullando por todos lados, como si siguiéramos viviendo en un estado de sitio. Por otro lado, está la desilusión, el hecho que existiera una movilización de tal magnitud como la que hubo, que el movimiento se haya sostenido durante tantos meses y que no se haya tirado al desgobernador, con toda esa fuerza que teníamos, pues la gente se decepcionó y lo que dicen es – ya ven, no logramos nada, para qué le seguimos, lo único que logramos fueron presos, muertos y gente que siempre quiere sacar provecho de esto. También hay desconfianza, la gente ve la desorganización, las personas no están respondiendo como antes, un cambio llevará tiempo, e implicará un trabajo constante de las comunidades, de las colonias, barrios, para volver nuevamente a tener credibilidad y a crear confianza.
¿Qué camino debería empreder el movimiento social, es decir, cómo se debería reorganizar?
La realidad es que se tiene que empezar de abajo, no de arriba para abajo, sino de las colonias, barrios y comunidades. Cada colonia tiene sus propios problemas y es con base en esas necesidades, es que se tiene que empezar a trabajar. Además hay mucha desconfianza hacia muchas organizaciones políticas, y eso hace que la gente se margine, entonces tiene que ser la misma gente desde su lugar, la que tiene que empezar a organizarse.
¿Cuál es su percepción sobre la gente con la que se ha reunido los domingos?
La impotencia y la desilusión.
¿Es posible dejar atrás esa desilusión y volver a construir algo?
Yo creo que sí, pero con honestidad, y la gente percibe esto, la gente está decidiendo quiénes son honestos y quiénes no. Como cuando alguien dice - yo soy zapatista - y quiere formar un nuevo partido político, pues eso va contra el zapatismo. Un problema a nivel mundial, es que la gente busca un caudillo, un líder, un dirigente y no se trata de eso. Nos hemos cansado de decir que el movimiento es de bases y a la hora de la práctica, muchos compañeros-ras, andan buscando un dirigente y no es por ahí el camino. Los domingos, hablamos de los sentimientos, porque no hay que olvidar que al final de cuentas la mayoría de la gente que llegamos al movimiento del 2006, llegamos con los sentimientos, con el corazón por delante, no lo pensamos. Mucho de la decepción, del miedo, son sentimientos y hay que tratar de sacar todo eso a flote.
¿Cómo lograr que las personas que participaron en el 2006 y que se alejaron por decepción, regresen al movimiento y logren su auto representación, como por ejemplo en el reciente Congreso de la APPO?
Primero se tienen que organizar en su colonias, barrios, en su núcleo, ahí es donde se debe volver a crearse la confianza, una vez que se logre esto, ellos-ellas decidirán cómo participan, es decisión de ellos-ellas. Nadie, de fuera, tienen que decirle qué deben hacer. Si la gente decide mandar un representante lo hará, pero cada lugar decidirá cómo tomar sus decisiones. Lo primero es construir la confianza, la credibilidad en ellos mismos, eso es algo que está roto.
En este momento, ¿Qué opción considera para que exista un cambio social en el país?
Siempre he pensado que los cambios son de abajo, no de abajo hacia arriba, y que son las personas como una unidad, las que tienen que decidir. Así como nuestros pueblos indígenas lograron que se respetara su derecho de usos y costumbres y de nombrar a sus autoridades a través de una Asamblea, pues así, cada comunidad cada barrio tiene que decidir, pero la base es la organización, la disciplina y la unidad. Si hay una comunidad o barrio que dice - queremos el camino electoral, es su decisión, pero cada uno debe tomar su propia decisión, porque cada lugar es diferente, las circunstancias son diferentes.
La doctora Berta realiza las reuniones de análisis sobre la APPO, todos los domingos a las 12 del día, a un costado del Zócalo de la Ciudad de Oaxaca. Y conduce el programa De Ficciones y Realidades, a través de la señal de Radio Plantón, de lunes a viernes, a partir de las 7pm.
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3/3/09
Ruining Young Lives for Profit
Pennsylvania's Kickback Judges
By NICOLE COLSON
CounterPunch
"I felt like I had been thrown into some surreal sort of nightmare. All I wanted to know was how this could be fair, and why the judge would do such a thing."
Hillary Transue had good reason to question how the judge overseeing her case could have to come to the decision he did.
In 2007, after a hearing lasting just 90 seconds, the 17-year-old found herself hauled away from court in handcuffs and thrown into a juvenile detention center. She was sentenced to three months for the crime of harassment after she created a mock site on the social networking Web site MySpace that made fun of the assistant principal at her high school.
The sentence was incredibly harsh considering that Hillary was a stellar student who had never been in trouble before--and that she put a disclaimer on the site itself stating that it was a joke.
But now, it's clear why Hillary and hundreds of other kids like her received sentences in a juvenile detention center that were totally disproportionate to their crime.
In a word: money.
Earlier this month, two Luzerne County, Pa., judges--Mark Ciavarella Jr. and Michael Conahan--pled guilty to taking $2.6 million in kickbacks in exchange for throwing juveniles into two for-profit private detention centers, PA Child Care and a sister company, Western PA Child Care. Under a plea agreement, both judges will serve 87 months in federal prison and be disbarred.
BEGINNING IN late 2002, Conahan, as the president judge in control of the budget, and Ciavarella, overseeing the juvenile courts, moved to close the county-run juvenile detention center, arguing that it was run-down. They argued that the county had no choice but to send juveniles to the then newly built PA Child Care and Western PA Child Care.
The two facilities, according to the Pittsburgh Post-Gazette, "are [partially] owned by Greg Zappala, brother of Allegheny County District Attorney Stephen A. Zappala Jr. and son of former state Supreme Court Chief Justice Stephen A. Zappala Sr."
Conahan apparently secured contracts worth tens of millions of dollars for the two facilities to house juveniles, while Ciavarella made sure the centers stayed full--by railroading vulnerable teens into the centers after trials that sometimes lasted just a minute or two.
In the state of Pennsylvania, juvenile proceedings are closed to the public, and teens can waive their right to counsel at trial. It appears as though some of those who appeared in front of Ciavarella unknowingly waived their right to counsel--only to find themselves suddenly locked up after the abbreviated hearings.
In one case, a 17-year-old who stole a bottle of nutmeg appeared without a lawyer before Ciavarella--and ended up spending more than seven months at three different detention facilities.
Jamie Quinn, was sent away to PA Child Care and several other detention centers for 11 months when she was just 14 years old, after she got in a fight with a friend, and they both slapped each other. "[A]ll that happened was just a basic fight," Quinn told Democracy Now's Amy Goodman. "She slapped me in the face, and I did the same thing back. There [were] no marks, no witnesses, nothing. It was just her word against my word."
The effect on her life was devastating. "People looked at me different when I came out, thought I was a bad person, because I was gone for so long," Quinn said. "My family started splitting up...because I was away and got locked up. I'm still struggling in school, because the schooling system in facilities like these places is just horrible."
While in detention, Quinn was forced to take medication and began to suffer depression. She resorted to cutting herself. "I was never depressed," she said. "I was never put on meds before. I went there, and they just started putting meds on me, and I didn't even know what they were. They said if I didn't take them, I wasn't following my program."
Jesse Miers appeared before Ciavarella when he was 17. He had tried to return a stolen gun after seeing a friend's 13-year-old brother wave it around. When he couldn't find the owner, he turned the gun over to his boss, who later handed it over to police.
A year later, Miers was a passenger in a car that was pulled over for a moving violation--and when police checked his name, he was surprised to find he had a warrant for his arrest. Though Miers says he asked for a public defender, none was present at his hearing in front of Judge Ciavarella.
Because he had heard of Ciavarella's reputation for not letting defendants have a chance to speak, Miers asked to be allowed to write a letter to the judge. "I wanted to state my case, but they only gave me five minutes to write it, and the judge didn't even read it anyway," Miers said.
"I had maybe 45 seconds in front of [Ciavarella]," he told the Post-Gazette. "He just said 'Remand him,' and they put me in shackles. I was shackled for 13 hours while I waited for them to take me" in a van from the Luzerne County Courthouse to the juvenile detention center in Allegheny Township, 270 miles away from his home.
ACCORDING TO the New York Times, youth advocates had been raising concerns about Ciavarella for years. Between 2002 and 2006, Ciavarella sent juvenile defendants to detention centers at 2.5 times greater rate than the state average. Fully a quarter of the children who appeared before him were locked away, and he routinely ignored pleas for leniency, even when they came from prosecutors and court probation officers.
In all, some 5,000 juveniles were sentenced by Ciavarella since the kickback scheme began in 2003. As the Times noted, "Many of them were first-time offenders and some remain in detention."
Moreover, when the Pennsylvania-based Juvenile Law Center began investigating after being contacted by Hillary Transue's mother, it found that Luzerne County had half of all waivers of counsel by young people in juvenile court in Pennsylvania. Despite the fact that the juvenile court in Luzerne County processes about 1,200 juvenile defendants a year, there is just one public defender on staff for juveniles.
"I've never encountered, and I don't think that we will in our lifetimes, a case where literally thousands of kids' lives were just tossed aside in order for a couple of judges to make some money," Marsha Levick, an attorney with the Juvenile Law Center, told the Associated Press.
Clay Yeager, the former director of the Office of Juvenile Justice in Pennsylvania, told the Times that Ciavarella and Conahan shouldn't have gotten away with railroading kids for as long as they did.
Although juvenile hearings are usually kept closed to the public, "they are kept open to probation officers, district attorneys and public defenders, all of whom are sworn to protect the interests of children," said Yeager. "It's pretty clear those people didn't do their jobs."
While both Ciavarella and Conahan are now headed to federal prison, the case exposes the way in which the trend towards privatization in the U.S. prison system has made money for some, at the expense of justice.
For-profit privatized prisons have become commonplace around the U.S. since the 1980s, when an explosion in the prison population due to the "war on drugs" left state facilities overcrowded. Today, corporations like GEO Group, Corrections Corporation of America and others run private facilities that promise to house prisoners for less than states are able to--by paying guards lower wages and fewer benefits, and cutting costs on inmate housing and care.
Whether anyone affiliated with PA Child Care or Western PA Child Care will face punishment for their role in locking up thousands of kids remains to be seen. So far, no official from either detention center has been charged with any crime. In fact, a letter sent last week from U.S. Attorney Martin Carlson to attorneys for the two detention centers stated that their corporate clients aren't the target of a probe and won't be indicted by a grand jury.
Although two class-action lawsuits have been filed on behalf of the teens who were wrongfully imprisoned, real justice won't be served as long as PA Child Care and other detention centers like it are allowed to remain open--and as long as the U.S. justice system is set up to prioritize profit over the lives of young people.
Nicole Colson lives in Chicago, where she works as a reporter for the Socialist Worker.
By NICOLE COLSON
CounterPunch
"I felt like I had been thrown into some surreal sort of nightmare. All I wanted to know was how this could be fair, and why the judge would do such a thing."
Hillary Transue had good reason to question how the judge overseeing her case could have to come to the decision he did.
In 2007, after a hearing lasting just 90 seconds, the 17-year-old found herself hauled away from court in handcuffs and thrown into a juvenile detention center. She was sentenced to three months for the crime of harassment after she created a mock site on the social networking Web site MySpace that made fun of the assistant principal at her high school.
The sentence was incredibly harsh considering that Hillary was a stellar student who had never been in trouble before--and that she put a disclaimer on the site itself stating that it was a joke.
But now, it's clear why Hillary and hundreds of other kids like her received sentences in a juvenile detention center that were totally disproportionate to their crime.
In a word: money.
Earlier this month, two Luzerne County, Pa., judges--Mark Ciavarella Jr. and Michael Conahan--pled guilty to taking $2.6 million in kickbacks in exchange for throwing juveniles into two for-profit private detention centers, PA Child Care and a sister company, Western PA Child Care. Under a plea agreement, both judges will serve 87 months in federal prison and be disbarred.
* * *
BEGINNING IN late 2002, Conahan, as the president judge in control of the budget, and Ciavarella, overseeing the juvenile courts, moved to close the county-run juvenile detention center, arguing that it was run-down. They argued that the county had no choice but to send juveniles to the then newly built PA Child Care and Western PA Child Care.
The two facilities, according to the Pittsburgh Post-Gazette, "are [partially] owned by Greg Zappala, brother of Allegheny County District Attorney Stephen A. Zappala Jr. and son of former state Supreme Court Chief Justice Stephen A. Zappala Sr."
Conahan apparently secured contracts worth tens of millions of dollars for the two facilities to house juveniles, while Ciavarella made sure the centers stayed full--by railroading vulnerable teens into the centers after trials that sometimes lasted just a minute or two.
In the state of Pennsylvania, juvenile proceedings are closed to the public, and teens can waive their right to counsel at trial. It appears as though some of those who appeared in front of Ciavarella unknowingly waived their right to counsel--only to find themselves suddenly locked up after the abbreviated hearings.
In one case, a 17-year-old who stole a bottle of nutmeg appeared without a lawyer before Ciavarella--and ended up spending more than seven months at three different detention facilities.
Jamie Quinn, was sent away to PA Child Care and several other detention centers for 11 months when she was just 14 years old, after she got in a fight with a friend, and they both slapped each other. "[A]ll that happened was just a basic fight," Quinn told Democracy Now's Amy Goodman. "She slapped me in the face, and I did the same thing back. There [were] no marks, no witnesses, nothing. It was just her word against my word."
The effect on her life was devastating. "People looked at me different when I came out, thought I was a bad person, because I was gone for so long," Quinn said. "My family started splitting up...because I was away and got locked up. I'm still struggling in school, because the schooling system in facilities like these places is just horrible."
While in detention, Quinn was forced to take medication and began to suffer depression. She resorted to cutting herself. "I was never depressed," she said. "I was never put on meds before. I went there, and they just started putting meds on me, and I didn't even know what they were. They said if I didn't take them, I wasn't following my program."
Jesse Miers appeared before Ciavarella when he was 17. He had tried to return a stolen gun after seeing a friend's 13-year-old brother wave it around. When he couldn't find the owner, he turned the gun over to his boss, who later handed it over to police.
A year later, Miers was a passenger in a car that was pulled over for a moving violation--and when police checked his name, he was surprised to find he had a warrant for his arrest. Though Miers says he asked for a public defender, none was present at his hearing in front of Judge Ciavarella.
Because he had heard of Ciavarella's reputation for not letting defendants have a chance to speak, Miers asked to be allowed to write a letter to the judge. "I wanted to state my case, but they only gave me five minutes to write it, and the judge didn't even read it anyway," Miers said.
"I had maybe 45 seconds in front of [Ciavarella]," he told the Post-Gazette. "He just said 'Remand him,' and they put me in shackles. I was shackled for 13 hours while I waited for them to take me" in a van from the Luzerne County Courthouse to the juvenile detention center in Allegheny Township, 270 miles away from his home.
* * *
ACCORDING TO the New York Times, youth advocates had been raising concerns about Ciavarella for years. Between 2002 and 2006, Ciavarella sent juvenile defendants to detention centers at 2.5 times greater rate than the state average. Fully a quarter of the children who appeared before him were locked away, and he routinely ignored pleas for leniency, even when they came from prosecutors and court probation officers.
In all, some 5,000 juveniles were sentenced by Ciavarella since the kickback scheme began in 2003. As the Times noted, "Many of them were first-time offenders and some remain in detention."
Moreover, when the Pennsylvania-based Juvenile Law Center began investigating after being contacted by Hillary Transue's mother, it found that Luzerne County had half of all waivers of counsel by young people in juvenile court in Pennsylvania. Despite the fact that the juvenile court in Luzerne County processes about 1,200 juvenile defendants a year, there is just one public defender on staff for juveniles.
"I've never encountered, and I don't think that we will in our lifetimes, a case where literally thousands of kids' lives were just tossed aside in order for a couple of judges to make some money," Marsha Levick, an attorney with the Juvenile Law Center, told the Associated Press.
Clay Yeager, the former director of the Office of Juvenile Justice in Pennsylvania, told the Times that Ciavarella and Conahan shouldn't have gotten away with railroading kids for as long as they did.
Although juvenile hearings are usually kept closed to the public, "they are kept open to probation officers, district attorneys and public defenders, all of whom are sworn to protect the interests of children," said Yeager. "It's pretty clear those people didn't do their jobs."
While both Ciavarella and Conahan are now headed to federal prison, the case exposes the way in which the trend towards privatization in the U.S. prison system has made money for some, at the expense of justice.
For-profit privatized prisons have become commonplace around the U.S. since the 1980s, when an explosion in the prison population due to the "war on drugs" left state facilities overcrowded. Today, corporations like GEO Group, Corrections Corporation of America and others run private facilities that promise to house prisoners for less than states are able to--by paying guards lower wages and fewer benefits, and cutting costs on inmate housing and care.
Whether anyone affiliated with PA Child Care or Western PA Child Care will face punishment for their role in locking up thousands of kids remains to be seen. So far, no official from either detention center has been charged with any crime. In fact, a letter sent last week from U.S. Attorney Martin Carlson to attorneys for the two detention centers stated that their corporate clients aren't the target of a probe and won't be indicted by a grand jury.
Although two class-action lawsuits have been filed on behalf of the teens who were wrongfully imprisoned, real justice won't be served as long as PA Child Care and other detention centers like it are allowed to remain open--and as long as the U.S. justice system is set up to prioritize profit over the lives of young people.
Nicole Colson lives in Chicago, where she works as a reporter for the Socialist Worker.
Exigen Cancelar Luz y Sonido en las Pirámides de Teotihuacan
ANSA
Cientos de personas protestaron dentro de la zona arqueológica de las pirámides de Teotihuacán y exigieron cancelar el proyecto de luz y sonido en ese centro ceremonial prehispánico. Empleados del Instituto Nacional de Antropología e Historia (INAH), estudiantes y lugareños formaron una valla humana con la que rodearon tres de los lados de la Pirámide del Sol, el más grande e importante basamento de ese centro arqueológico.
Los manifestantes lanzaron consignas contra los gobiernos federal y en particular del estado de México, al que acusaron de promover un proyecto que afecta la conservación de esos vestigios construidos en el 200 DC. Alrededor de 800 personas participaron en la protesta en la que el diputado Alfonso Suárez, del centroizquierdista Partido Revolucionario Institucional (PRD), fue el orador principal en ese centro arqueológico ubicado a 48 kilómetros de la capital mexicana. "(Enrique) Peña Nieto entiende Teotihuacán no se vende", gritaron los manifestantes en referencia al gobernador del estado de México al que acusan de afectar ese patrimonio mundial en aras de comercializarlo con un "show multimedia". MCC
Cientos de personas protestaron dentro de la zona arqueológica de las pirámides de Teotihuacán y exigieron cancelar el proyecto de luz y sonido en ese centro ceremonial prehispánico. Empleados del Instituto Nacional de Antropología e Historia (INAH), estudiantes y lugareños formaron una valla humana con la que rodearon tres de los lados de la Pirámide del Sol, el más grande e importante basamento de ese centro arqueológico.
Los manifestantes lanzaron consignas contra los gobiernos federal y en particular del estado de México, al que acusaron de promover un proyecto que afecta la conservación de esos vestigios construidos en el 200 DC. Alrededor de 800 personas participaron en la protesta en la que el diputado Alfonso Suárez, del centroizquierdista Partido Revolucionario Institucional (PRD), fue el orador principal en ese centro arqueológico ubicado a 48 kilómetros de la capital mexicana. "(Enrique) Peña Nieto entiende Teotihuacán no se vende", gritaron los manifestantes en referencia al gobernador del estado de México al que acusan de afectar ese patrimonio mundial en aras de comercializarlo con un "show multimedia". MCC
The Judge Who Ruled Marijuana is Medicine
Pot Shots
By FRED GARDNER
CounterPunch
Most drug-policy-reform advocates know the name of Judge Francis Young and many can quote a line from his 1988 recommendation that the DEA remove marijuana from Schedule One: "Marijuana is one of the safest therapeutically active substances known to man."
Few if any activists know the name of Judge James A. Washington. And whereas Judge Young's recommendation was rejected by the DEA, Judge Washington's decision in United States v. Robert Randall had an actual and significant impact.
Randall, who faced blindness from glaucoma in his late 20s, would be the first patient to get marijuana from the federal government under an "investigational new drug" protocol. Some 30 other people with serious illnesses followed Randall into the IND program, which was closed to new patients in 1991. Four surviving patients receive federal cannabis to this day.
US v Randall was tried by Judge Washington in Washington, DC, Superior Court, over the course of two days in July, 1976. The prosecutor was Assistant US Attorney Richard Stolker. Randall's attorney John Karr recalled in a recent interview, "Judge Washington had been dean of the Howard University Law School before his appointment to the bench and I knew him to be extremely intelligent and compassionate. A non-jury trial was fine with me."
Randall relied on a "medical necessity" argument, which Karr summarized as: "faced with a choice of certain blindness or using marijuana to save your sight, a reasonable person would use marijuana."
The key witness was Robert Hepler, MD, a UCLA opthalmologist who had monitored Randall's use of all the pharmaceutical drugs then used to treat glaucoma, and confirmed that only marijuana could stop the progression to blindness.
Here are the facts as recounted by Judge Washington in his decision:
John Karr recalls: "Judge Washington was very careful. After the prosecutor had conducted his examination and I had conducted the cross-examination, he would conduct his own inquiries. It was apparent that he had read all the material we had put together on the history of marijuana as medicine. In his decision he referred to the 1937 Congressional hearings that led to the Prohibition, and a number of recent studies and reports."
"This is a case of first impression in this jurisdiction," wrote Judge Washington in his decision, "one which raises significant issues. Consequently, the Court recognizes its responsibility to set forth clearly and in some depth its understanding of the applicable law."
Citing case law, Washington concluded that "the common law recognizes the defense of necessity in criminal cases... where the actor is compelled by external circumstances to perform the illegal act." He listed three exceptions. The necessity defense cannot be used when "1) The duress or circumstance has been brought about by the actor himself; 2) The same objective could have been accomplished by a less offensive alternative which was available to the actor; or 3) The evil sought to be averted was less heinous than that performed to avoid it."
The first two exceptions clearly don't apply in US v. Randall, wrote Washington:
How's that for a soundbite? Washington's decision continued:
Judge Washington could have ended his decision at this point, but he went on to assert its applicability to other necessity-defense cases. He projected and refuted an argument that would deny the necessity defense based on the literal wording of the DC Code section, which makes no reference to extenuating circumstances. He also discussed whether a defendant should have to prove necessity "beyond a reasonable doubt" and concluded that "by a preponderance of the evidence" was sufficient.
As John Karr put it, "Judge Washington made an effort to find for Randall in every important way."
P.S.
Attorney Paul Smollar, who worked with Karr on U.S. v. Randall, recalls: "As a memento, Bob took two cigarettes out of the first pack he received from the government, removed the marijuana, and framed the papers -one for each of us to commemorate our victory in court...'Medical necessity' was then a new argument. It had been argued before in criminal cases, but never in connection with marijuana. John is a very creative thinker and an excellent trial lawyer. And he had a good working relationship with Judge Washington. They respected one another. Judge Washington was not only very bright, but he was willing to make a decision that might be unpopular or might be on the leading edge of the law. His decision for Randall was far ahead of its time.”
Some 35 years after Judge Washington found for Randall, attorney Robert Raich framed a "medical necessity" argument on behalf of the Oakland Cannabis Buyers Club in a case that went to the U.S. Supreme Court. Raich was unaware of Judge Washington's decision in support of Randall. "I wish I had known about it," he told us. "It was scholarly, well-reasoned and well written. I would have incorporated it... I wish we had more such judges these days."
Judge James A. Washington died in 1998 at the age of 83. His obituaries made reference to his five-year stint in the War Division of the Justice Department, joining the Howard faculty in 1946, his work as a lawyer in connection with Brown v. Board of Education and other cases leading to the end of public-school segregation in 1954, and a terrible fall that confined him to a wheelchair for the last 20 years of his life. His decision in U.S. v. Randall exonerating a marijuana user on grounds of medical necessity was too far ahead of its time to be recognized as a signal achievement.
Fred Gardner edits O’Shaughnessy’s, the journal of cannabis in clinical practice. He can be reached at fred@plebesite.com
By FRED GARDNER
CounterPunch
Most drug-policy-reform advocates know the name of Judge Francis Young and many can quote a line from his 1988 recommendation that the DEA remove marijuana from Schedule One: "Marijuana is one of the safest therapeutically active substances known to man."
Few if any activists know the name of Judge James A. Washington. And whereas Judge Young's recommendation was rejected by the DEA, Judge Washington's decision in United States v. Robert Randall had an actual and significant impact.
Randall, who faced blindness from glaucoma in his late 20s, would be the first patient to get marijuana from the federal government under an "investigational new drug" protocol. Some 30 other people with serious illnesses followed Randall into the IND program, which was closed to new patients in 1991. Four surviving patients receive federal cannabis to this day.
US v Randall was tried by Judge Washington in Washington, DC, Superior Court, over the course of two days in July, 1976. The prosecutor was Assistant US Attorney Richard Stolker. Randall's attorney John Karr recalled in a recent interview, "Judge Washington had been dean of the Howard University Law School before his appointment to the bench and I knew him to be extremely intelligent and compassionate. A non-jury trial was fine with me."
Randall relied on a "medical necessity" argument, which Karr summarized as: "faced with a choice of certain blindness or using marijuana to save your sight, a reasonable person would use marijuana."
The key witness was Robert Hepler, MD, a UCLA opthalmologist who had monitored Randall's use of all the pharmaceutical drugs then used to treat glaucoma, and confirmed that only marijuana could stop the progression to blindness.
Here are the facts as recounted by Judge Washington in his decision:
"The government has established, and the defendant has not attempted to refute, that on or about August 21, 1975, police officers in the course of their normal duties noticed what they believed to be cannabis plants on the rear porch and in the front windows of defendant's residence… A warrant was issued and a search of the premises conducted on August 23, 1975. Several plants and a dried substance later identified as marijuana were seized and defendant's arrest followed.
"At trial, the government's evidence demonstrated that the substance seized at defendant's residence was marijuana, possession of which is prohibited by D.C. Code Section 33-402, thus establishing all the elements of the crime charged. Moreover, defendant admitted that he had grown the marijuana in question and that it was intended for his personal consumption. He further testified that he knew that possession and use of this narcotic are restricted by law.
"Defendant nonetheless sought to exonerate himself through the presentation of evidence tending to show that his possession of the marijuana was the result of medical necessity. Over government objection of irrelevancy, defendant testified that he had begun experiencing visual difficulties as an undergraduate in the late 1960s. In 1972 a local opthalmologist, Dr. Benjamin Fine, diagnosed defendant's condition as glaucoma, a disease of the eye characterized by the excessive accumulation of fluid causing increased intraocular pressure (IOP), distorted vision and, ultimately, blindness.
"Dr. Fine treated defendant with an array of conventional drugs, which stabilized the intraocular pressure when first introduced but became increasingly ineffective as defendant's tolerance increased. By 1974, defendant's IOP could no longer be controlled by these medicines, and the disease had progressed to the point where defendant had suffered the complete loss of sight in his right eye and considerable impairment of vision in the left.
"Despite the ineffectiveness of traditional treatments, defendant during this period nonetheless achieved some relief through the inhalation of marijuana smoke. Fearing the legal consequences, defendant did not inform Dr. Fine of his discovery, but after his arrest defendant participated in an experimental program being conducted by opthalmologist Dr. Robert Hepler under the auspices of the United States Government.
"Dr. Hepler testified that his examination of the defendant revealed that treatment with conventional medications was ineffective, and also that surgery, while offering some hope of preserving the vision which remained to defendant, also carried significant risks of immediate blindness. The results of the experimental program indicated that the ingestion of marijuana smoke had a beneficial effect on defendant's condition, normalizing intraocular pressure and lessening visual distortions."
John Karr recalls: "Judge Washington was very careful. After the prosecutor had conducted his examination and I had conducted the cross-examination, he would conduct his own inquiries. It was apparent that he had read all the material we had put together on the history of marijuana as medicine. In his decision he referred to the 1937 Congressional hearings that led to the Prohibition, and a number of recent studies and reports."
A Case of First Impression
"This is a case of first impression in this jurisdiction," wrote Judge Washington in his decision, "one which raises significant issues. Consequently, the Court recognizes its responsibility to set forth clearly and in some depth its understanding of the applicable law."
Citing case law, Washington concluded that "the common law recognizes the defense of necessity in criminal cases... where the actor is compelled by external circumstances to perform the illegal act." He listed three exceptions. The necessity defense cannot be used when "1) The duress or circumstance has been brought about by the actor himself; 2) The same objective could have been accomplished by a less offensive alternative which was available to the actor; or 3) The evil sought to be averted was less heinous than that performed to avoid it."
The first two exceptions clearly don't apply in US v. Randall, wrote Washington:
"While the exact cause of defendant's glaucoma is unknown, neither the government nor any of the expert witnesses has suggested that the defendant is in any way responsible for his condition. Similarly, no alternative course of action would have secured the desired result through a less illegal channel. Because of defendant's tolerance, treatment with other drugs has become ineffective, and surgery offers only a slim possibility of favorable results coupled with a significant risk of immediate blindness. Neither the origin of the compelling circumstances nor the existence of a more acceptable alternative prevents the successful assertion of the necessity defense.
"The question of whether the evil avoided by defendant's action is less than the evil inherent in his act is more difficult. It requires a balancing of the interests of this defendant against those of the government. While defendant's wish to preserve his sight is too obvious to necessitate further comment, the government interests require a more detailed examination.
"One of the oldest recognized drugs, marijuana was not regulated in the United States until the Pure Food and Drug Act of 1906, which required that the presence of marijuana be indicated on the labels of products of which it was a component. The modern prohibition began in 1937, in response to primarily economic pressures -- 21 -- without significant inquiry into its effects on users. [Washington's footnote 21: "Liquor manufacturers and distributors, still recovering from the effects of Prohibition, were interested in eradicating the potential competition from a drug often used for recreational purposes. In addition, criminalizing marijuana simplified the task of eliminating the competition for jobs during the Depression posed by the principal users of the drug, Mexican migrant laborers."]
"The 1970 Controlled Substances Act continued the prohibition of the use of marijuana, but a Presidential Commission was appointed to study its effects. Pending receipt of this report, marijuana was classified as a non-narcotic and although its use was still prohibited, the penalties were considerable reduced, with first offenders being discharged conditionally. The District of Columbia law, however, was not changed, and retains the narcotic classification based on the 1937 Uniform Narcotics Act.
"Medical evidence suggests that the prohibition is not well founded...."
How's that for a soundbite? Washington's decision continued:
"Reports from the President's Commission and the Department of Health, Education and Welfare have concluded that there is no conclusive scientific evidence of any harm attendant upon the use of marijuana. According to the most recent HEW study, research has failed to establish any substantial physical or mental impairment caused by marijuana. Reports of chromosome damage, reduced immunity to disease, and psychosis are unconfirmed; actual evidence is to the contrary.
"Furthermore, unlike the so-called hard drugs, marijuana does not appear to be physically addictive or to cause the user to develop a tolerance requiring more and more of the drug for the same effects. The current HEW report also notes the possibility of valid medical uses for this drug...
"The Court finds that this defendant does not fall within the third limitation to the necessity defense. The evil he sought to avert, blindness, is greater than that he performed to accomplish it, growing marijuana in his residence in violation of the District of Columbia Code. While blindness was shown by competent medical testimony to be the otherwise inevitable result of defendant's disease, no adverse effects from the smoking of marijuana have been demonstrated...
Judge Washington could have ended his decision at this point, but he went on to assert its applicability to other necessity-defense cases. He projected and refuted an argument that would deny the necessity defense based on the literal wording of the DC Code section, which makes no reference to extenuating circumstances. He also discussed whether a defendant should have to prove necessity "beyond a reasonable doubt" and concluded that "by a preponderance of the evidence" was sufficient.
As John Karr put it, "Judge Washington made an effort to find for Randall in every important way."
Recollections from Karr
"Randall came to me through Alice O'Leary, who was an employee of a client of mine at the time, a company called The American Theater. Her story was very touching: 'My boyfriend has this problem. He's been busted for growing marijuana on our back porch on Capitol Hill and he's going blind from glaucoma.' So I said 'Okay, bring him in...'
"He told me his very interesting story. So I called a Dr. Brown either at NIH or NIMH and said, 'What's current on the use of marijuana as a medicine?' And he said there were three programs ongoing that NIH knew about. One, I think, in Alabama; one in North Carolina; and one out at the Jules Stein Institute [UCLA]. He said one involved a THC solution delivered intramuscularly; one program reduced it to a pill taken orally; and the one in California was doing it by smoking marijuana.
"So I called the people in North Carolina and I think it was Alabama and they said that their results were very mixed. But Dr. Hepler at UCLA said 'I got this program going and it looks like a real winner.' So we sent Randall out to UCLA and Hepler tested him-
"He had no money for the defense. In fact, we never got paid for this. It may have been Alice who put together enough money for the trip. She was the real driver in this thing because she was very concerned about him. Anyway, he went out there for about 10 days and Hepler said 'It's a winner.' I asked Hepler if he would come and testify. We advanced the money for that, I think it was 13 hundred bucks but it didn't matter because at this point we were all excited about the case...Sure enough, he came and he was a terrific witness.
"There were some amusing moments in the trial. I remember the delivery of one of the plants from the FBI storeroom to the courtroom, wrapped as if it was a gift from a florist. It reminded me of a revue by the old comedy team, Olsen and Johnson, which began with a hotel bellhop crossing the stage and calling out 'Plant for Mrs. Jones. Plant for Mrs. Jones.' At the end of each act he would reappear and the plant would have gotten larger and larger and larger...The FBI agent carefully unwrapped the plant, which was mature and now withered, and the prosecutor asked him to roll a joint from it, which he did. This was to prove that it was a usable amount of marijuana...
"At one point I asked my contact at NIMH, Dr. Brown, whether there was a program to get him marijuana legally. And he said you've got to get an 'Investigational New Drug' approval from the FDA. We called FDA and they sent us the forms and we helped Randall fill them out and send them back and eventually an Investigational New Drug license was issued. And for I don't remember how long, Randall would show up at Morton's Drug Store in the 300 block of Pennsylvania Avenue Southeast, three blocks from the Capitol of the United States, and pick up his weekly supply of marijuana. Which looked like an olive-drab pack of cigarettes with a band around it saying 'Property of the United States of America.' I remember it vividly because it was just so perfect.
"I called FDA and was told that it was grown in Mississippi and processed and packaged in North Carolina, where all the cigarettes are processed and packaged..."
P.S.
Attorney Paul Smollar, who worked with Karr on U.S. v. Randall, recalls: "As a memento, Bob took two cigarettes out of the first pack he received from the government, removed the marijuana, and framed the papers -one for each of us to commemorate our victory in court...'Medical necessity' was then a new argument. It had been argued before in criminal cases, but never in connection with marijuana. John is a very creative thinker and an excellent trial lawyer. And he had a good working relationship with Judge Washington. They respected one another. Judge Washington was not only very bright, but he was willing to make a decision that might be unpopular or might be on the leading edge of the law. His decision for Randall was far ahead of its time.”
Some 35 years after Judge Washington found for Randall, attorney Robert Raich framed a "medical necessity" argument on behalf of the Oakland Cannabis Buyers Club in a case that went to the U.S. Supreme Court. Raich was unaware of Judge Washington's decision in support of Randall. "I wish I had known about it," he told us. "It was scholarly, well-reasoned and well written. I would have incorporated it... I wish we had more such judges these days."
Judge James A. Washington died in 1998 at the age of 83. His obituaries made reference to his five-year stint in the War Division of the Justice Department, joining the Howard faculty in 1946, his work as a lawyer in connection with Brown v. Board of Education and other cases leading to the end of public-school segregation in 1954, and a terrible fall that confined him to a wheelchair for the last 20 years of his life. His decision in U.S. v. Randall exonerating a marijuana user on grounds of medical necessity was too far ahead of its time to be recognized as a signal achievement.
Fred Gardner edits O’Shaughnessy’s, the journal of cannabis in clinical practice. He can be reached at fred@plebesite.com
El INAH: Entre la Dignidad y la Ignominia
Gilberto López y Rivas
La Jornada
El 12 de febrero pasado, los tres sindicatos coordinados de trabajadores del Instituto Nacional de Antropología e Historia (INAH) –arquitectos, administrativos, técnicos y manuales, investigadores y docentes– efectuaron un exitoso paro de labores en todas sus dependencias en el ámbito nacional: museos, centros regionales, zonas arqueológicas, escuelas nacionales y oficinas diversas. En mantas, volantes, asambleas, foros, debates, mítines improvisados y diversas formas de comunicación de acera y mediática, estos trabajadores no protestaron por cuestiones económicas, condiciones de trabajo o prestaciones gremialistas en momentos en que la mayor crisis que se recuerde golpea dramáticamente las economías de los asalariados. No eran estamentos corporativos luchando por sus intereses que, siendo legítimos, buscarían en última instancia el beneficio propio. Ellos se manifestaron por la defensa del patrimonio arqueológico de la Nación (así, con mayúscula); por la memoria histórica de los pueblos que la conforman y le dan su impronta, que siendo multiétnica y nacional, es un tesoro universal amenazado por la barbarie del capital y sus asociados en los gobiernos trasnacionalizados, las burocracias enquistadas en las instituciones y en quienes se han rendido a sus requerimientos, cooptaciones o amenazas.
Estos especialistas en investigación, conservación y custodia del patrimonio cultural tangible e intangible, después de un análisis concienzudo del proyecto llamado Resplandor teotihuacano y del avance de su instalación, expusieron a la ciudadanía que dicho proyecto, aprobado por el Consejo de Arqueología (INAH) en septiembre del año pasado, no cumple con los requerimientos académicos y técnicos indispensables; carece de guión y sustento científico y no cuenta con la información suficiente para evaluar la posible afectación de los monumentos. Incluso, el propio presidente del consejo reconoció públicamente el pasado 12 de enero que en esa aprobación se cometieron errores.
Además de esta anomalía de origen, suficiente para cancelar inmediatamente el proyecto, se instalaron 3633 lámparas, para lo cual se realizaron 6575 perforaciones, dañando los monumentos y provocando filtraciones que afectan la estructura. Igualmente, la instalación eléctrica y las luminarias alteran la visual y volumetría de los monumentos de la zona; todo ello en violación de la Ley Federal de Zonas y Monumentos Arqueológicos, Artísticos e Históricos en su artículo 42, e implica una afectación tipificada como delito en el artículo 52.
Las acciones realizadas también violan el decreto presidencial de 1988 que declara a Teotihuacán Zona de Monumentos Arqueológicos, cuyo artículo 13 establece: “En la zona de monumentos definida en este decreto no se autorizan construcciones cuya función, diseño o ubicación alteren, afecten o distorsionen los valores monumentales o el uso educativo y de investigación a que la misma esta destinada”. El proyecto viola asimismo varias normas jurídicas y recomendaciones internacionales sobre conservación de monumentos: la Ley General de Bienes Nacionales, la Carta de Venecia, la Declaración de Patrimonio de la Humanidad emitida por la UNESCO, el documento de Nara sobre autenticidad, la declaración sobre la conservación del entorno de las estructuras, sitios y áreas patrimoniales. Más aún, en el proyecto no se consideraron las repercusiones sociales y su impacto en las comunidades circundantes, ni mucho menos se tomó en cuenta la opinión de las mismas.
El director general del INAH, Alfonso de María y Campos, ajeno a la institución y sin especialización en alguna de las diversas disciplinas del organismo, y quien se ha distinguido por su desprecio a los trabajadores del instituto y sus afanes autoritarios-elitistas, no posee por ley la atribución de otorgar concesiones ni establecer convenios con instancias públicas o privadas para la comercialización de zonas arqueológicas.
Las asambleas generales de los sindicatos del INAH por unanimidad resolvieron presentar las denuncias penales correspondientes y exigir la destitución del director y de las demás autoridades involucradas en la afectación del patrimonio de todos los mexicanos.
Reclaman la cancelación inmediata del proyecto, la reparación de los daños y el retiro de todas las instalaciones colocadas sobre las pirámides del Sol y la Luna. Ante el silencio cómplice de las autoridades máximas del Ejecutivo federal, incluyendo a su titular, los sindicatos han pedido al director que renuncie para evitar dañar más a una institución que recientemente cumplió 70 años. Sin embargo, De María y Campos se aferra a su puesto y hace caso omiso de las llamadas de la UNESCO y la Comisión Permanente del Congreso para suspender las obras y hacer un análisis pertinente del proyecto. Las autoridades del INAH y el gobernador del estado de México, que pretende ser candidato presidencial (¡uno de los responsables principales del crimen de Atenco!), se han empecinado en minimizar los daños, estigmatizar a los trabajadores del INAH y encubrir sus delitos y componendas corporativas en declaraciones maniqueas que refieren a la politización del caso.
Teotihuacán expresa nítidamente la dicotómica realidad actual de México. Por un lado, la dignidad de sus trabajadores que representan los valores e intereses nacionales y universales; y por el otro, la ignominia de quienes detentan el poder económico y político para beneficio de una colusión apátrida e insensible al clamor ciudadano. Por incompetencia en el desempeño de sus funciones y violación a los principios de la institución, ¡renuncie, señor embajador!
La Jornada
El 12 de febrero pasado, los tres sindicatos coordinados de trabajadores del Instituto Nacional de Antropología e Historia (INAH) –arquitectos, administrativos, técnicos y manuales, investigadores y docentes– efectuaron un exitoso paro de labores en todas sus dependencias en el ámbito nacional: museos, centros regionales, zonas arqueológicas, escuelas nacionales y oficinas diversas. En mantas, volantes, asambleas, foros, debates, mítines improvisados y diversas formas de comunicación de acera y mediática, estos trabajadores no protestaron por cuestiones económicas, condiciones de trabajo o prestaciones gremialistas en momentos en que la mayor crisis que se recuerde golpea dramáticamente las economías de los asalariados. No eran estamentos corporativos luchando por sus intereses que, siendo legítimos, buscarían en última instancia el beneficio propio. Ellos se manifestaron por la defensa del patrimonio arqueológico de la Nación (así, con mayúscula); por la memoria histórica de los pueblos que la conforman y le dan su impronta, que siendo multiétnica y nacional, es un tesoro universal amenazado por la barbarie del capital y sus asociados en los gobiernos trasnacionalizados, las burocracias enquistadas en las instituciones y en quienes se han rendido a sus requerimientos, cooptaciones o amenazas.
Estos especialistas en investigación, conservación y custodia del patrimonio cultural tangible e intangible, después de un análisis concienzudo del proyecto llamado Resplandor teotihuacano y del avance de su instalación, expusieron a la ciudadanía que dicho proyecto, aprobado por el Consejo de Arqueología (INAH) en septiembre del año pasado, no cumple con los requerimientos académicos y técnicos indispensables; carece de guión y sustento científico y no cuenta con la información suficiente para evaluar la posible afectación de los monumentos. Incluso, el propio presidente del consejo reconoció públicamente el pasado 12 de enero que en esa aprobación se cometieron errores.
Además de esta anomalía de origen, suficiente para cancelar inmediatamente el proyecto, se instalaron 3633 lámparas, para lo cual se realizaron 6575 perforaciones, dañando los monumentos y provocando filtraciones que afectan la estructura. Igualmente, la instalación eléctrica y las luminarias alteran la visual y volumetría de los monumentos de la zona; todo ello en violación de la Ley Federal de Zonas y Monumentos Arqueológicos, Artísticos e Históricos en su artículo 42, e implica una afectación tipificada como delito en el artículo 52.
Las acciones realizadas también violan el decreto presidencial de 1988 que declara a Teotihuacán Zona de Monumentos Arqueológicos, cuyo artículo 13 establece: “En la zona de monumentos definida en este decreto no se autorizan construcciones cuya función, diseño o ubicación alteren, afecten o distorsionen los valores monumentales o el uso educativo y de investigación a que la misma esta destinada”. El proyecto viola asimismo varias normas jurídicas y recomendaciones internacionales sobre conservación de monumentos: la Ley General de Bienes Nacionales, la Carta de Venecia, la Declaración de Patrimonio de la Humanidad emitida por la UNESCO, el documento de Nara sobre autenticidad, la declaración sobre la conservación del entorno de las estructuras, sitios y áreas patrimoniales. Más aún, en el proyecto no se consideraron las repercusiones sociales y su impacto en las comunidades circundantes, ni mucho menos se tomó en cuenta la opinión de las mismas.
El director general del INAH, Alfonso de María y Campos, ajeno a la institución y sin especialización en alguna de las diversas disciplinas del organismo, y quien se ha distinguido por su desprecio a los trabajadores del instituto y sus afanes autoritarios-elitistas, no posee por ley la atribución de otorgar concesiones ni establecer convenios con instancias públicas o privadas para la comercialización de zonas arqueológicas.
Las asambleas generales de los sindicatos del INAH por unanimidad resolvieron presentar las denuncias penales correspondientes y exigir la destitución del director y de las demás autoridades involucradas en la afectación del patrimonio de todos los mexicanos.
Reclaman la cancelación inmediata del proyecto, la reparación de los daños y el retiro de todas las instalaciones colocadas sobre las pirámides del Sol y la Luna. Ante el silencio cómplice de las autoridades máximas del Ejecutivo federal, incluyendo a su titular, los sindicatos han pedido al director que renuncie para evitar dañar más a una institución que recientemente cumplió 70 años. Sin embargo, De María y Campos se aferra a su puesto y hace caso omiso de las llamadas de la UNESCO y la Comisión Permanente del Congreso para suspender las obras y hacer un análisis pertinente del proyecto. Las autoridades del INAH y el gobernador del estado de México, que pretende ser candidato presidencial (¡uno de los responsables principales del crimen de Atenco!), se han empecinado en minimizar los daños, estigmatizar a los trabajadores del INAH y encubrir sus delitos y componendas corporativas en declaraciones maniqueas que refieren a la politización del caso.
Teotihuacán expresa nítidamente la dicotómica realidad actual de México. Por un lado, la dignidad de sus trabajadores que representan los valores e intereses nacionales y universales; y por el otro, la ignominia de quienes detentan el poder económico y político para beneficio de una colusión apátrida e insensible al clamor ciudadano. Por incompetencia en el desempeño de sus funciones y violación a los principios de la institución, ¡renuncie, señor embajador!
A Poisoned Town's Shot at Justice
Libby, Montana vs. W.R. Grace Corp
By ANDREA PEACOCK
CounterPunch
Missoula, Montana.
For nearly a decade, officials of the W.R. Grace corporation have declined to defend themselves publicly against accusations that they knowingly exposed generations of a small Montana town to lethal doses of a particularly virulent form of asbestos, profiting without a backward glance as the town’s cemetery filled with hundreds of victims. Last week, attorneys for the multi-national finally broke that silence and told their side of the story in federal court.
There are no significant amounts of asbestos in the mountains near Libby, Montana, they asserted, and Grace’s vermiculite-based products carry no death. “There is no question that miners and their families suffered tragic losses as a consequence of the operation of this mine,” conceded Grace defense attorney David Bernick in his opening statement. But those deaths were the result of unregulated fibrous minerals—not asbestos—and all related to the bad, dusty old days before Grace reformed its milling processes. It was a terrible tragedy, but no one’s to blame.
As for those others, the townsfolk whose hoarse voices foretell a relentless decline from oxygen tank to perpetual breathlessness, well, it may be they got their various asbestos-related diseases from doing brake jobs, or the sort of pick-up construction work men all across the rural West use to get by on. It may be that many of them are not sick at all, just walking around under the pall of false diagnoses. In fact, the lawyers said, the idea that more than 1,200 people in this tiny community have asbestos-related diseases from Grace’s now-defunct vermiculite mine is a grim fairy tail, the invention of one greedy law firm, two incompetent doctors, and three meddlesome federal agents.
That was the message delivered between the lines during opening statements in Judge Donald Molloy’s Missoula, Mont., courtroom, where five former Grace officials as well as the corporation itself stand accused of conspiracy, violations of the Clean Air Act and obstruction of justice. The men could go to jail with sentences ranging from five to 35 years. Fines could reach between $250,000 and $750,000 for the former executives. A guilty verdict for Grace might carry a $280 million price tag.
These arguments are believable, because the alternative—stated succinctly by one defense attorney—is horrific.
“What they are trying to say is that Harry Eschenbach is a bad man,” lawyer David Krakoff said plainly. “That he didn’t care about the workers of Libby and was willing to let them suffer death and disease.”
The case against W.R. Grace is of enormous consequence: in terms of potential jail time and fines, it ranks as one of the largest criminal environmental cases in the history of the United States. The Denver Environmental Protection Agency has been so closely tied to the matter—both in terms of the cleanup and the prosecution—that acquittals would be an enormous blow to the office’s credibility.
For those who have lost family members—the death list had hit 274 as of 2006—guilty verdicts will vindicate their humanity: the corporation treated the people of this community like dirt. Their pain, their suffering, their loss will matter in the eyes of the law.
As well, guilty verdicts would vindicate the EPA’s controversial cleanup in Libby, and might finally force the federal government to acknowledge and do something about the risk to those living in upwards of 15 million buildings in the United States insulated with vermiculite-based products from Grace’s Libby mine.
The truth is, Grace and its executives are not being charged with murder, nor with any actions that contributed to the deaths of those miners. The miners’ family members who died of the dust brought home on their husbands’ and fathers’ clothing are not being avenged directly here; nor are those whose disease stems from living in a home insulated with asbestos-contaminated vermiculite.
The charges prosecutors have been able to stick beyond the reach of statutes of limitation are environmental in nature: that Grace and its managers conspired to defraud the government and violate the Clean Air Act by knowingly releasing a hazardous material into the ambient air that would cause the imminent endangerment of those who came in contact with it.
This means that prosecutors can tell the jury of the lengths to which Grace contaminated the public space of Libby, to the point where anyone going about their business in town could end up breathing death that would take decades to manifest (asbestos-related diseases have long latency periods). And more to the point, that Grace and its men knew exactly the nature of the toxic legacy they were leaving behind.
When W.R. Grace executives closed the Libby mine in 1990, they did so knowing that the high school and middle school running tracks had been paved with mine tailings; that the Plummer Elementary School ice skating rink was constructed with its ore; that the former screening plant sold to a local family, the Parkers, for their nursery and storage businesses was blanketed with asbestos-contaminated vermiculite; that the export plant it donated to the town—which was subsequently leased for a family-run retail lumber and planning business—was also chock full of the stuff.
The jury will hear that Grace was sloppy with a product it knew to be lethal, allowing it to be spread around the Little League baseball fields, to be used by a local sand and gravel company, to be loaded by pickup trucks and carried to gardens and yards throughout town, and to “sand” the dirt road running up Rainy Creek to the mine, frequented by locals to access hunting and by kids to get to a popular party meadow.
Grace and the defendants counter that everyone in government from the EPA to Montana’s Department of Environmental Quality, that everyone in the town from the county commissioners to Mel and Lerah Parker, knew there was asbestos in the vermiculite. This argument must be read as the defense’s effort to cover all bases: there was no asbestos in our vermiculite—but just in case the jury decides there was, we’ll say the people of Libby made decisions with their eyes wide open.
The prosecution, in its opening statement, chose to tell a familiar story: that of a corporation with a violently impaired sense of moral responsibility. Attorneys for the government referred to Grace’s internal studies showing that their product, their ore, was far more deadly than other kinds of asbestos, that it was unusually friable (that is, susceptible to becoming airborne), and that its Libby workforce had been decimated by asbestos-related diseases. In one set of such tests, Grace was unable to find a level of contamination low enough that harmful levels of asbestos would not be released upon disturbance.
“It was not a secret that their vermiculite contained asbestos, and it was well known that asbestos was bad for you,” assistant US attorney Kris McLean explained to the jurors. “What the government intends to show is that these defendants kept a closely guarded secret: that their product—even when it contained only a small amount of asbestos—released hazardous levels of asbestos through the air when disturbed.”
The prosecution is walking the narrowest of ledges. The provisions of the Clean Air Act under which Grace and the men are charged didn’t exist until 1990, the year the mine closed. All testimony and evidence of Grace’s activities in Libby before that date must be carefully targeted to lay the foundation only for the defendants’ knowledge and actions as they relate to post-1990 releases. And since Grace and its employees were responsible for few overt acts in the 1990s, the prosecution’s theory is that they indirectly caused the hazardous releases through the actions of ordinary citizens, unwitting partners who could not help but disturb vermiculite while going about their day to day lives.
It’s an unconventional approach, and miraculous that prosecutors have gotten even this far with the case. In June 2006, Judge Molloy threw out the original conspiracy charges due to the statute of limitations, effectively gutting the government’s case. It was only because the judge allowed prosecutors to file a superseding indictment—adding accusations of obstruction for Grace’s heel-dragging in 1999 and beyond—that these men and their corporation are now called to account for themselves.
The defense is doing its best to limit the prosecution even further: to so much as mention the fact that there’s been a Superfund cleanup in Libby, insists attorney Bernick, is to imply that something is wrong up in Libby and prejudice the jury against his client. Bernick, one of the nation’s premier trial lawyers (he defended Philip Morris and others against tobacco litigation), reportedly earns $800 to $1,000 an hour, and he questioned EPA on-site coordinator Paul Peronard as though he planned to rack up the hours. Unable to keep Peronard, a bright, compassionate and charismatic man, off the stand entirely, the defense was able to restrict his testimony to the point where he was not even allowed to venture an opinion as to whether or not the situation in Libby was hazardous.
Peronard could, for instance, describe a scene in which Mel and Lerah Parker’s young granddaughter threw clods of rocks against a wall to bust them open, and add that these rocks came from the mine site. But when he mentioned that the rocks were full of asbestos, the judge struck his testimony, advising the jury to disregard it.
Though Judge Molloy ruled in his favor often as not, Bernick seemed frustrated by the proceedings, at one point even shaking his finger at the judge.
“I am trying to be patient with you,” Judge Molloy responded. “You make your objections and I’ll rule on them.”
The trial is expected to last three to five months. After opening statements, the courtroom cleared out quite a bit. The army of grey-suited attorneys representing the defendants (there are nearly 30 lawyers involved in all, only three of which sit at the government’s table), will likely stay on, but the press bench had dwindled to a skeleton crew and members of the public could finally find places to sit by the middle of week one.
So far, prosecutors have used a delicate touch. The first witnesses called included men who played Little League baseball next to the export plant, and a woman who spent her teenage years running track. While all testified they had contracted asbestos-related diseases, it was their hoarse voices, like static on the radio, which spoke loudest. Defense attorneys warned against overly emotional testimony, yet there was little of this. More moving than anything she said was Wendy Challinor’s labored walk to the witness stand, and her attempt to fight back tears after being asked of her disease. And Vernon Riley’s simple statement about his late wife Toni, “I had her for two and a half years after she got the cancer,” that described beyond testimony the depth of his loss.
Grace attorney Bernick confronted most of these defendants with medical reports from doctors stating that they were, in fact, disease free. None of the witnesses had seen these reports before, they testified. Interestingly enough, all were from the same two doctors. Later, asbestos victim advocate Gayla Benefield clued me in: “Those are Grace’s doctors,” she said. But the inference that Libby’s doctors were misdiagnosing people had an impact. One reporter confided to me he thought there might be some sort of mass delusion going on, at least as regards the number of sick people.
Two older women sat in the courtroom for most of the proceedings, one holding a Resistol cowboy hat decorated with eagle and pheasant feathers belonging to her late husband. Despite her unassuming presence, her name and fame precede her: Norita Skramstad is Les Skramstad’s widow. Together with Gayla Benefield, the trio were to a large degree responsible for setting in motion the events leading up to this day. Both their family trees are riddled with asbestos casualties.
Les died fighting. A few weeks before he passed in 2007, we spoke and he likened Grace officials to Saddam Hussein, who had just been hung. “They all shoulda been at that party,” he noted wryly. It is damn tragedy that Les died first. In the end, it was mesothelioma—a rare, asbestos related cancer—that got him, rather than the asbestosis he’d been living with for decades.
The defense paints their clients as family men from religious and blue collar backgrounds, old men in their seventies who if sent to jail might reasonably expect to die there. Montanans are a subtle people, and none of this is lost on the jury. Les may well get his justice.
Andrea Peacock is the author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation (Johnson Books, 2003). She lives south of Livingston, Montana, and can be reached at apeacock@wispwest.net
By ANDREA PEACOCK
CounterPunch
Missoula, Montana.
For nearly a decade, officials of the W.R. Grace corporation have declined to defend themselves publicly against accusations that they knowingly exposed generations of a small Montana town to lethal doses of a particularly virulent form of asbestos, profiting without a backward glance as the town’s cemetery filled with hundreds of victims. Last week, attorneys for the multi-national finally broke that silence and told their side of the story in federal court.
There are no significant amounts of asbestos in the mountains near Libby, Montana, they asserted, and Grace’s vermiculite-based products carry no death. “There is no question that miners and their families suffered tragic losses as a consequence of the operation of this mine,” conceded Grace defense attorney David Bernick in his opening statement. But those deaths were the result of unregulated fibrous minerals—not asbestos—and all related to the bad, dusty old days before Grace reformed its milling processes. It was a terrible tragedy, but no one’s to blame.
As for those others, the townsfolk whose hoarse voices foretell a relentless decline from oxygen tank to perpetual breathlessness, well, it may be they got their various asbestos-related diseases from doing brake jobs, or the sort of pick-up construction work men all across the rural West use to get by on. It may be that many of them are not sick at all, just walking around under the pall of false diagnoses. In fact, the lawyers said, the idea that more than 1,200 people in this tiny community have asbestos-related diseases from Grace’s now-defunct vermiculite mine is a grim fairy tail, the invention of one greedy law firm, two incompetent doctors, and three meddlesome federal agents.
That was the message delivered between the lines during opening statements in Judge Donald Molloy’s Missoula, Mont., courtroom, where five former Grace officials as well as the corporation itself stand accused of conspiracy, violations of the Clean Air Act and obstruction of justice. The men could go to jail with sentences ranging from five to 35 years. Fines could reach between $250,000 and $750,000 for the former executives. A guilty verdict for Grace might carry a $280 million price tag.
These arguments are believable, because the alternative—stated succinctly by one defense attorney—is horrific.
“What they are trying to say is that Harry Eschenbach is a bad man,” lawyer David Krakoff said plainly. “That he didn’t care about the workers of Libby and was willing to let them suffer death and disease.”
The case against W.R. Grace is of enormous consequence: in terms of potential jail time and fines, it ranks as one of the largest criminal environmental cases in the history of the United States. The Denver Environmental Protection Agency has been so closely tied to the matter—both in terms of the cleanup and the prosecution—that acquittals would be an enormous blow to the office’s credibility.
For those who have lost family members—the death list had hit 274 as of 2006—guilty verdicts will vindicate their humanity: the corporation treated the people of this community like dirt. Their pain, their suffering, their loss will matter in the eyes of the law.
As well, guilty verdicts would vindicate the EPA’s controversial cleanup in Libby, and might finally force the federal government to acknowledge and do something about the risk to those living in upwards of 15 million buildings in the United States insulated with vermiculite-based products from Grace’s Libby mine.
The truth is, Grace and its executives are not being charged with murder, nor with any actions that contributed to the deaths of those miners. The miners’ family members who died of the dust brought home on their husbands’ and fathers’ clothing are not being avenged directly here; nor are those whose disease stems from living in a home insulated with asbestos-contaminated vermiculite.
The charges prosecutors have been able to stick beyond the reach of statutes of limitation are environmental in nature: that Grace and its managers conspired to defraud the government and violate the Clean Air Act by knowingly releasing a hazardous material into the ambient air that would cause the imminent endangerment of those who came in contact with it.
This means that prosecutors can tell the jury of the lengths to which Grace contaminated the public space of Libby, to the point where anyone going about their business in town could end up breathing death that would take decades to manifest (asbestos-related diseases have long latency periods). And more to the point, that Grace and its men knew exactly the nature of the toxic legacy they were leaving behind.
When W.R. Grace executives closed the Libby mine in 1990, they did so knowing that the high school and middle school running tracks had been paved with mine tailings; that the Plummer Elementary School ice skating rink was constructed with its ore; that the former screening plant sold to a local family, the Parkers, for their nursery and storage businesses was blanketed with asbestos-contaminated vermiculite; that the export plant it donated to the town—which was subsequently leased for a family-run retail lumber and planning business—was also chock full of the stuff.
The jury will hear that Grace was sloppy with a product it knew to be lethal, allowing it to be spread around the Little League baseball fields, to be used by a local sand and gravel company, to be loaded by pickup trucks and carried to gardens and yards throughout town, and to “sand” the dirt road running up Rainy Creek to the mine, frequented by locals to access hunting and by kids to get to a popular party meadow.
Grace and the defendants counter that everyone in government from the EPA to Montana’s Department of Environmental Quality, that everyone in the town from the county commissioners to Mel and Lerah Parker, knew there was asbestos in the vermiculite. This argument must be read as the defense’s effort to cover all bases: there was no asbestos in our vermiculite—but just in case the jury decides there was, we’ll say the people of Libby made decisions with their eyes wide open.
The prosecution, in its opening statement, chose to tell a familiar story: that of a corporation with a violently impaired sense of moral responsibility. Attorneys for the government referred to Grace’s internal studies showing that their product, their ore, was far more deadly than other kinds of asbestos, that it was unusually friable (that is, susceptible to becoming airborne), and that its Libby workforce had been decimated by asbestos-related diseases. In one set of such tests, Grace was unable to find a level of contamination low enough that harmful levels of asbestos would not be released upon disturbance.
“It was not a secret that their vermiculite contained asbestos, and it was well known that asbestos was bad for you,” assistant US attorney Kris McLean explained to the jurors. “What the government intends to show is that these defendants kept a closely guarded secret: that their product—even when it contained only a small amount of asbestos—released hazardous levels of asbestos through the air when disturbed.”
The prosecution is walking the narrowest of ledges. The provisions of the Clean Air Act under which Grace and the men are charged didn’t exist until 1990, the year the mine closed. All testimony and evidence of Grace’s activities in Libby before that date must be carefully targeted to lay the foundation only for the defendants’ knowledge and actions as they relate to post-1990 releases. And since Grace and its employees were responsible for few overt acts in the 1990s, the prosecution’s theory is that they indirectly caused the hazardous releases through the actions of ordinary citizens, unwitting partners who could not help but disturb vermiculite while going about their day to day lives.
It’s an unconventional approach, and miraculous that prosecutors have gotten even this far with the case. In June 2006, Judge Molloy threw out the original conspiracy charges due to the statute of limitations, effectively gutting the government’s case. It was only because the judge allowed prosecutors to file a superseding indictment—adding accusations of obstruction for Grace’s heel-dragging in 1999 and beyond—that these men and their corporation are now called to account for themselves.
The defense is doing its best to limit the prosecution even further: to so much as mention the fact that there’s been a Superfund cleanup in Libby, insists attorney Bernick, is to imply that something is wrong up in Libby and prejudice the jury against his client. Bernick, one of the nation’s premier trial lawyers (he defended Philip Morris and others against tobacco litigation), reportedly earns $800 to $1,000 an hour, and he questioned EPA on-site coordinator Paul Peronard as though he planned to rack up the hours. Unable to keep Peronard, a bright, compassionate and charismatic man, off the stand entirely, the defense was able to restrict his testimony to the point where he was not even allowed to venture an opinion as to whether or not the situation in Libby was hazardous.
Peronard could, for instance, describe a scene in which Mel and Lerah Parker’s young granddaughter threw clods of rocks against a wall to bust them open, and add that these rocks came from the mine site. But when he mentioned that the rocks were full of asbestos, the judge struck his testimony, advising the jury to disregard it.
Though Judge Molloy ruled in his favor often as not, Bernick seemed frustrated by the proceedings, at one point even shaking his finger at the judge.
“I am trying to be patient with you,” Judge Molloy responded. “You make your objections and I’ll rule on them.”
The trial is expected to last three to five months. After opening statements, the courtroom cleared out quite a bit. The army of grey-suited attorneys representing the defendants (there are nearly 30 lawyers involved in all, only three of which sit at the government’s table), will likely stay on, but the press bench had dwindled to a skeleton crew and members of the public could finally find places to sit by the middle of week one.
So far, prosecutors have used a delicate touch. The first witnesses called included men who played Little League baseball next to the export plant, and a woman who spent her teenage years running track. While all testified they had contracted asbestos-related diseases, it was their hoarse voices, like static on the radio, which spoke loudest. Defense attorneys warned against overly emotional testimony, yet there was little of this. More moving than anything she said was Wendy Challinor’s labored walk to the witness stand, and her attempt to fight back tears after being asked of her disease. And Vernon Riley’s simple statement about his late wife Toni, “I had her for two and a half years after she got the cancer,” that described beyond testimony the depth of his loss.
Grace attorney Bernick confronted most of these defendants with medical reports from doctors stating that they were, in fact, disease free. None of the witnesses had seen these reports before, they testified. Interestingly enough, all were from the same two doctors. Later, asbestos victim advocate Gayla Benefield clued me in: “Those are Grace’s doctors,” she said. But the inference that Libby’s doctors were misdiagnosing people had an impact. One reporter confided to me he thought there might be some sort of mass delusion going on, at least as regards the number of sick people.
Two older women sat in the courtroom for most of the proceedings, one holding a Resistol cowboy hat decorated with eagle and pheasant feathers belonging to her late husband. Despite her unassuming presence, her name and fame precede her: Norita Skramstad is Les Skramstad’s widow. Together with Gayla Benefield, the trio were to a large degree responsible for setting in motion the events leading up to this day. Both their family trees are riddled with asbestos casualties.
Les died fighting. A few weeks before he passed in 2007, we spoke and he likened Grace officials to Saddam Hussein, who had just been hung. “They all shoulda been at that party,” he noted wryly. It is damn tragedy that Les died first. In the end, it was mesothelioma—a rare, asbestos related cancer—that got him, rather than the asbestosis he’d been living with for decades.
The defense paints their clients as family men from religious and blue collar backgrounds, old men in their seventies who if sent to jail might reasonably expect to die there. Montanans are a subtle people, and none of this is lost on the jury. Les may well get his justice.
Defendants W.R. Grace, William McCaig, Henry Eschenbach, Jack Wolter, Robert Bettachi and Robert Walsh all are charged with conspiracy to defraud the government and violate the Clean Air Act. Wolter and Bettachi are charged additionally with two counts of violating the Clean Air Act, Grace faces three such counts. Grace is also accused of four counts of obstruction of justice.
A sixth co-defendant, Alan Stringer, died in 2007 of a non-asbestos related cancer. Attorney Mario Favorito is a seventh defendant on the conspiracy charge, and he will be tried separately due to his position as counsel for Grace.
The trial is expected to last between three and five months.
Andrea Peacock is the author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation (Johnson Books, 2003). She lives south of Livingston, Montana, and can be reached at apeacock@wispwest.net
18 Meses de Huelga en las Minas de México
El gobierno de Calderón toma partido por la empresa minera
Matteo Dean
Diagonal
El 30 de enero los mineros del Sindicato Nacional de Trabajadores Mineros, Metalúrgicos y Similares de la República mexicana alcanzaron los 18 meses de huelga en las tres minas de Taxco, Sombrerete y Cananea, en contra de la empresa transnacional mexicana Grupo México. Aún no se vislumbra en el horizonte una solución al conflicto. Comenzadas por causas meramente laborales, las huelgas se han convertido en asunto político a raíz de que el Gobierno federal mexicano se ha visto involucrado y ha tomado partido en favor de la empresa de Germán Larrea Mota Velasco, el todo poderoso empresario del norte del país que, aprovechando la pauta privatizadora emprendida hace más de 20 años, se hizo con la mayoría de las riquezas del subsuelo mexicano.
Las malas condiciones laborales, el deterioro de las cuestiones relativas a la seguridad e higiene, y la maquinaria obsoleta en riesgo del colapso, además de la negativa por parte de la empresa frente a la petición de revisión salarial, son algunas de las causas de esta huelga que se perfila como una de las más largas de la historia sindical mexicana. Los mineros denuncian que las condiciones laborales son efectivamente precarias: turnos de ocho horas a cambio de pocos pesos. En la categoría más elevada de las 20 que contempla el contrato colectivo firmado por las dos partes, un minero en México gana menos de diez euros diarios, es decir 146 pesos. Una cifra que rebasa efectivamente el salario mínimo establecido por ley (45 pesos diarios) pero que, sin embargo, se queda muy por debajo del salario mínimo real en el país. El sindicato, además, denuncia precarias condiciones de trabajo, señalando faltas en los sistemas de seguridad, maquinaria al límite del colapso, etc. La trágica prueba de ello ocurrió la madrugada del 19 de febrero de 2006, cuando una explosión dejó atrapados y segó la vida de 65 trabajadores en una mina de propiedad del Grupo México, ubicada en Pasta de Conchos, Coahuila. Hasta la fecha los cuerpos no han sido recuperados y nadie ha sido juzgado.
Sin embargo, el peor caso lo representan los trabajadores contratistas que la empresa ha comenzado a involucrar en sus actividades a raíz de su política de “reducción de costos”. Los sindicalizados explican que desde que existen contratistas en las instalaciones de la empresa, estos por contrato no pueden “realizar trabajos especiales”, es decir, los que comúnmente se definiría como peligrosos. Según testimonios recogidos, los contratistas son no obstante los encargados de realizar esas actividades: apertura de nuevos túneles, utilización de explosivos, etc. Todas, actividades que los contratistas llevan a cabo en turnos por lo regular de 12 horas, y en algunos casos de hasta 14 horas, por un sueldo base de menos de 50 pesos diarios. Por si esto fuera poco, los contratistas no gozan de ningún tipo de seguridad social y no tienen siquiera los instrumentos legales y burocráticos para exigir reformas: “si te quejas, te vas a tu casa”, explican. La existencia de un sindicato, impide actualmente a la empresa la contratación de un número excesivo de trabajadores contratistas, sin embargo ésa es claramente la tendencia, ya que permite a la empresa no solamente contratar y despedir según los esquemas modernos de la producciónjust in time, sino, en lo específico, le permite eludir cualquier otra responsabilidad fijada en la actual legislación laboral mexicana: no hay reparto de utilidades, no hay aguinaldo, no hay generación de antigüedad (gracias a los contratos temporales que se utilizan para los contratistas). No se ve solución a corto plazo al conflicto minero en México. La empresa, dicen los mineros, junto al Gobierno quiere acabar con su sindicato: “No les importan nuestras condiciones”, denuncian. Cuentan que a los diez días de comenzada la huelga, en la mina de Taxco hubo un derrumbe. “De estar nosotros trabajando hubiera habido unos 80 muertos”, señalan. Sin embargo, a la empresa no le importa, pues “lo veníamos denunciando desde hace muchos meses antes de empezar la protesta”, dicen los mineros, “y la empresa nos contestaba que prefería pagar la multa en lugar de parar la producción”.
Matteo Dean
Diagonal
Este periodista de La Jornada explica para DIAGONAL el conflicto minero del norte de México, determinado por las condiciones de explotación y peligrosidad.
El 30 de enero los mineros del Sindicato Nacional de Trabajadores Mineros, Metalúrgicos y Similares de la República mexicana alcanzaron los 18 meses de huelga en las tres minas de Taxco, Sombrerete y Cananea, en contra de la empresa transnacional mexicana Grupo México. Aún no se vislumbra en el horizonte una solución al conflicto. Comenzadas por causas meramente laborales, las huelgas se han convertido en asunto político a raíz de que el Gobierno federal mexicano se ha visto involucrado y ha tomado partido en favor de la empresa de Germán Larrea Mota Velasco, el todo poderoso empresario del norte del país que, aprovechando la pauta privatizadora emprendida hace más de 20 años, se hizo con la mayoría de las riquezas del subsuelo mexicano.
Las malas condiciones laborales, el deterioro de las cuestiones relativas a la seguridad e higiene, y la maquinaria obsoleta en riesgo del colapso, además de la negativa por parte de la empresa frente a la petición de revisión salarial, son algunas de las causas de esta huelga que se perfila como una de las más largas de la historia sindical mexicana. Los mineros denuncian que las condiciones laborales son efectivamente precarias: turnos de ocho horas a cambio de pocos pesos. En la categoría más elevada de las 20 que contempla el contrato colectivo firmado por las dos partes, un minero en México gana menos de diez euros diarios, es decir 146 pesos. Una cifra que rebasa efectivamente el salario mínimo establecido por ley (45 pesos diarios) pero que, sin embargo, se queda muy por debajo del salario mínimo real en el país. El sindicato, además, denuncia precarias condiciones de trabajo, señalando faltas en los sistemas de seguridad, maquinaria al límite del colapso, etc. La trágica prueba de ello ocurrió la madrugada del 19 de febrero de 2006, cuando una explosión dejó atrapados y segó la vida de 65 trabajadores en una mina de propiedad del Grupo México, ubicada en Pasta de Conchos, Coahuila. Hasta la fecha los cuerpos no han sido recuperados y nadie ha sido juzgado.
Sin embargo, el peor caso lo representan los trabajadores contratistas que la empresa ha comenzado a involucrar en sus actividades a raíz de su política de “reducción de costos”. Los sindicalizados explican que desde que existen contratistas en las instalaciones de la empresa, estos por contrato no pueden “realizar trabajos especiales”, es decir, los que comúnmente se definiría como peligrosos. Según testimonios recogidos, los contratistas son no obstante los encargados de realizar esas actividades: apertura de nuevos túneles, utilización de explosivos, etc. Todas, actividades que los contratistas llevan a cabo en turnos por lo regular de 12 horas, y en algunos casos de hasta 14 horas, por un sueldo base de menos de 50 pesos diarios. Por si esto fuera poco, los contratistas no gozan de ningún tipo de seguridad social y no tienen siquiera los instrumentos legales y burocráticos para exigir reformas: “si te quejas, te vas a tu casa”, explican. La existencia de un sindicato, impide actualmente a la empresa la contratación de un número excesivo de trabajadores contratistas, sin embargo ésa es claramente la tendencia, ya que permite a la empresa no solamente contratar y despedir según los esquemas modernos de la producciónjust in time, sino, en lo específico, le permite eludir cualquier otra responsabilidad fijada en la actual legislación laboral mexicana: no hay reparto de utilidades, no hay aguinaldo, no hay generación de antigüedad (gracias a los contratos temporales que se utilizan para los contratistas). No se ve solución a corto plazo al conflicto minero en México. La empresa, dicen los mineros, junto al Gobierno quiere acabar con su sindicato: “No les importan nuestras condiciones”, denuncian. Cuentan que a los diez días de comenzada la huelga, en la mina de Taxco hubo un derrumbe. “De estar nosotros trabajando hubiera habido unos 80 muertos”, señalan. Sin embargo, a la empresa no le importa, pues “lo veníamos denunciando desde hace muchos meses antes de empezar la protesta”, dicen los mineros, “y la empresa nos contestaba que prefería pagar la multa en lugar de parar la producción”.
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