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Update on the Federal Racketeering Lawsuit Against Cig Co.s


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U.S. and Cigarette Companies Clash at Racketeering Trial


Published: November 19, 2004

ASHINGTON, Nov. 18 - After nine weeks of testimony but with months to go, the federal judge presiding over the trial of the government's conspiracy suit against the tobacco industry invited lawyers for each side on Thursday to sum up their cases so far.

The exercise was entirely for the benefit of the judge, Gladys Kessler, the sole finder of fact in the nonjury trial. The two 90-minute presentations reflected an enormous gulf with which she will have to deal in deciding whether, as the government charges under the Racketeer Influenced and Corrupt Organizations Act, cigarette companies have engaged in fraud and deceit for half a century to sell their products.


"We submit that the record before the court at present is sufficient for a finding of RICO liability by these defendants," said Stephen Brody, a Justice Department lawyer.

But David Bernick, one of two lawyers who spoke for the companies, argued that the government's presentation so far lacked focus and "a consistent and sustainable theory of fraud."

"This case,'' he told Judge Kessler, "is in trouble, serious trouble.''

Armed with a slide-show presentation to highlight testimony helpful to his side, Mr. Brody maintained that the government was well on its way toward proving its allegations, reflected in what the Justice Department calls "seven pillars of fraud": that the companies denied the damaging health effects of smoking; promoted what they described as independent research, which they financed; denied that smoking was addictive; denied that cigarette makers manipulated the level of nicotine in their products; promoted cigarettes that were called "less hazardous," against scientific evidence that they were not; marketed to children as young as 12; and suppressed evidence to keep documents out of the public realm and litigation.

Mr. Brody focused mostly on the first two pillars, citing testimony from government witnesses who said the companies had obscured the truth about health effects both in smokers and in people who breathe the smoke of tobacco users.

The industry lawyer, Mr. Bernick - and later his colleague Dan Webb - sought to show that the government was ignoring countervailing testimony from some of the same witnesses it cited. As one example, Mr. Bernick named Dr. Allan M. Brandt, chairman of the history of science department at Harvard.

Dr. Brandt testified, the government had reminded the court, that a research organization financed by the companies had been more interested in showing genetic dispositions, rather than smoking, to be a cause of cancer. But Mr. Bernick pointed to another part of the testimony, in which Dr. Brandt said of the companies, "They wanted good science."

Mr. Webb was especially forceful in challenging the government's effort to show that the companies, portraying evidence on the effects of secondhand smoke as inconclusive, were still trying to deceive the public. He called this accusation the government's "lifeboat to carry across the victory line." Since all sides now agree that there is severe risk in smoking, the government's accusation on secondhand smoke could be essential to meeting a central requirement for relief under RICO: likelihood of future violations.

"What the government is doing is fraud," Mr. Webb said, declaring that the preponderance of evidence on secondhand smoke favored the industry. Then, pointing to a screen on which his own slide showed an Ionic column smashed, he said, "I crumbled that pillar of fraud.''

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