Previously unknown documents posted

October 6, 2015 by Ken Ward Jr.

Joel Ebert filling in for Ken Ward Jr. while he continues to watch the jury selection process.

One day after I called the clerk’s office and Judge Irene Berger’s office wondering where document 405 and 409 were, they appeared in the court’s system.

Because they did not previously appear in the system, we had no idea if they were sealed documents or anything else.

This morning both documents were added to the Blankenship trial’s document history.

Here’s 405, which you can see was filed last Friday.

10/02/2015 405 SEALED ORDER as to Donald L. Blankenship; directing that the Transcript of Voir Dire 402 be filed under seal. Signed by Judge Irene C. Berger on 10/2/2015. (cc: Judge,) (tmr)

The filing mentions document 402, which is the transcript from the first day of jury selection.

Here is 402, which was previously listed in the case’s document history:

10/02/2015 402 TRANSCRIPT OF VOIR DIRE as to Donald L. Blankenship held on October 1, 2015, before Judge Irene C. Berger. Court Reporter Lisa Cook and Mary Schweinhagen. (lac) (Modified docket text to add court reporter’s name on 10/2/2015) (klc). Modified document security on 10/2/2015 (cbo).

Interesting to note the final line of the entry – Modified document security. That was added after the transcript was temporarily available at the clerk’s office on Friday, which resulted in this story.

The second recent filing that was previously unlisted was document 409.

Here is the entry:

10/04/2015 409 MOTION to Seal Motion as to Donald L. Blankenship (Attachments: # 1 Proposed Order, # 2 Motion, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3) (Brown, Blair)

It is unclear what this document is exactly but it, along with the aforementioned ones, are unable to be viewed by the public.

The latest court filing – 416 – grants the defense’s request to seal document 409.

10/06/2015 416 SEALED ORDER as to Donald L. Blankenship; granting 409 MOTION to Seal Motion as to Donald L. Blankenship. Signed by Judge Irene C. Berger on 10/5/2015. (cc: Judge, USA, counsel, deft) (skh)

Following the addition of documents 405 and 409 in the document history, that leaves 21 documents unlisted.

I’m not sure if our questioning or mention of 405 and 409 resulted in them being posted but while we’re at it, I’m still wondering what the following documents are: 21, 27, 36, 37, 38, 172, 225, 252, 253, 254, 281, 292, 301, 302, 366, 367, 370, 374, 379 and 400.

Tuesday morning Blankenship update

October 6, 2015 by Ken Ward Jr.
Former Massey Energy CEO Don Blankenship and his lawyers enter the Robert C. Byrd U.S. Courthouse on Tuesday morning. Photo by Joel Ebert.

Former Massey Energy CEO Don Blankenship and his lawyers enter the Robert C. Byrd U.S. Courthouse on Tuesday morning. Photo by Joel Ebert.

Jury selection resumed for a fourth day this morning in the criminal trial of former Massey Energy CEO Don Blankenship.

Media representatives, including a growing number of national outlets, were again barred from the courtroom.

At times this morning, audio from U.S. District Judge Irene Berger’s questioning of potential jurors could be heard in a separate courtroom where spectators were allowed.

Several court staff scrambled to determine which microphone in the courtroom was turned on.

Friday’s voir dire transcript not posted

October 5, 2015 by Ken Ward Jr.

Joel Ebert filling in for Ken Ward Jr. while he continues to watch the jury selection process.

As jury selection continues with the Don Blankenship trial, there’s something to note about the latest filings.

It appears there may be some filings that are not posted in the court’s system.

The court system provides a document number for every single document associated with a case. The documents generally are given a number as they are filed.

For example document a document filed recently has a higher number than a document filed two months ago.

Looking at the most recently filed documents, two are missing – documents 405 and 409.

As of this posting, the court has not filed a voir dire transcript from Friday’s jury selection process.

After the incident that occurred last week – when Thursday’s voir dire transcript was temporarily available on a public computer in the clerk’s office – one wonders whether or not one of the missing numbers (405 or 409) could be the voir dire transcript.

This isn’t the first time a document number has been skipped in the Blankenship filings.

By my count, there have been 23 document numbers that have been skipped.

It is possible the document numbers that don’t appear could be trial subpoenas or something to do with the grand jury. There is no real way to find out what these potential documents are.


When I contacted the clerk’s office, they directed my inquiries into the missing documents to Karen Sword, a judicial assistant for Judge Irene Berger.

Sword said although she was not sure why document 405 or 409 were available in the court’s system, she said it is possible they are sealed documents.

When I pointed out that sealed documents normally have a motion from one of the parties (prosecution or defense) and that is listed in the court’s system, Sword said documents can also be sealed by the Court.

Sword did not know whether either potential document 405 or 409 were copies of Friday’s voir dire transcript.

Government responds to latest motions from Blankenship defense

October 5, 2015 by Ken Ward Jr.

Joel Ebert filling in for Ken Ward Jr. while he continues to watch the jury selection process.

The government filed two responses to motions from the defense today.

The first was the government’s reply to the defense’s motion for relief from late discovery.

This essentially is a response to a document the defense filed on Sept. 30.

In that filing, the defense argued the material – which included a disk containing thousands of pages of daily violation reports, minutes from 16 Massey Energy board meetings, transcripts of 36 excerpts of audio recordings, 230 photographs, 22 enumerated Securities and Exchange Commission filings, three spreadsheets which featured compensation of Massey and Alpha Natural Resources employees – the government provided in recent days should have been produced in discovery.

“The latest of these deliveries appeared at approximately four pm this afternoon, scarcely hours before jury selection is to begin,” the defense wrote. “The problem is at this time the defense cannot tell wheat from chaff and without relief we will not be able to provide constitutionally effective representations.”

According to the government’s newly filed response:

The bulk of these (documents) are nothing more than certified copies of documents that have in Defendant’s possession since at least December.”

The government notes the SEC filings were produced to the defense in December, before adding:

“There are portions of Defendant’s own secret recordings of his phone calls, which similarly have long been in the possession of the defense.”

The government ultimately concludes:

None of these materials should come as a surprise to Defendant, and no relief is warranted on account of them, particularly since Defendant now has had several days to review them.”

The second document filed today by the government was a reply to the defense’s attempts to block the government from using Massey Energy’s U.S. Mine Safety and Health Administration citations as evidence in the trial.

In their argument, the defense says the government plans to use the citations and records as evidence but does not plan to call the inspectors who wrote them as witnesses.

Blankenship’s attorneys say the MSHA citations forms are hearsay.

In their newly filed reply, the government admits that it plans on using MSHA citations issued at the Upper Big Branch mine during the period of time outlined in Blankenship’s indictment.

“The citations are public records and will be authenticated as such throughout the testimony of a MSHA record custodian,” the filing says.

The government argues the citations are not hearsay “because they will not be offered to prove the truth of the matters asserted in the citations. Rather, the citations prove notice, willfulness, motive, materiality, state of mind, and demonstrate the nature of the relationship between Defendant’s Massey and MSHA.”

The government also speaks to the possibility of the citations being hearsay, saying, “Even if the Court deems the citations hearsay, they are admissible as exceptions to the hearsay rule.”

The rule states MSHA inspectors are not “law enforcement personnel” and the citations were made as part of the inspectors’ legal duty to provide a report on the conditions of a mine.

The government also argues that the sheer number of citations – 835 to be exact – indicates the conditions present at the Upper Big Branch mine, prior to the April 5, 2010 explosion.

As far as calling the inspectors forward as witnesses for the case – the government says having all 28 inspectors who issued the 835 citations would “drastically and unnecessarily prolong the trial.”

The government finally attempts to cut down the defense’s objections by noting that the defense has asserted that the MSHA citations have “inadmissible legal conclusions that a law has been violated.”

Any implication of a legal conclusion can be cured with a limiting instruction. If the Court grants Defendant’s motion and requires the United States to put on as witnesses the inspectors who issued every one of the approximately 835 citations, these witnesses will testify exhaustively to the deplorable conditions they observed at UBB that formed the predicate of their observations recorded in the citations, and not any legal conclusions that laws were violated, and the jury could be instructed accordingly.”

For all the aforementioned reasons, the government is asking the Court to deny the defense’s motion to exclude the MSHA citations.

Monday morning Blankenship update

October 5, 2015 by Ken Ward Jr.

Joel Ebert filling in for Ken Ward Jr. while he continues to watch the jury selection process. This post was called in by Ken.

Jury selection resumed this morning in the criminal trial of former Massey Energy CEO Don Blankenship.

It was another court session scheduled to begin at 9 am at the Robert C. Byrd United States Courthouse in Charleston.

U.S. Marshals did not allow members of the media and other specators upstairs in the courthouse until 9:45 a.m.

The public remains barred from the courtroom where jury selection is occurring.

United State District Judge Irene Berger again questioned jurors at the bench with the sound muted to a video feed which was fed to a separate courtroom where spectators were permitted to watch.

Don Blankenship at federal court on Oct. 5 arrives as jury selection continues for the third day.

Don Blankenship at federal court on Oct. 5 arrives as jury selection continues for the third day. Photo by Joel Ebert

Blankenship legal fee lawsuit backfires

October 5, 2015 by Ken Ward Jr.

Mine Explosion

Maybe it seemed like a good idea at the time, back in February:

Former Massey Energy CEO Don Blankenship sued Alpha Natural Resources this week, alleging that the company has reneged on an agreement requiring Alpha to pay his mounting legal costs — already more than $3 million — to defend against a major criminal indictment alleging that he orchestrated safety violations at Massey’s Upper Big Branch Mine prior to an April 2010 explosion that killed 29 miners.

Blankenship filed the new legal action Thursday, just one day before Friday’s deadline for pre-trial motions in the criminal case against him in U.S. District Court, in Beckley. That trial is scheduled to start April 20.

Blankenship alleges that Alpha — which bought Massey in June 2011 — informed him in late January that the company would not cover the legal fees and costs incurred in his defense against the four-count indictment that charges him with mine safety and securities violations.

“The defendants recently reneged on their agreements for mandatory advancement of the plaintiff’s attorneys’ fees and expenses, a development which has threatened his ability to mount a defense,” Blankenship’s lawyers say in their filing.

And Blankenship probably was pretty pleased with the official outcome, when a Delaware judge ordered Alpha to pay up — at the time the former Massey CEO’s legal bills, as of April 1, were nearly $6 million.

But given what we know now, you have to wonder if Don Blankenship will end up regretting that legal fees lawsuit. As we reported on Sunday in the Gazette-Mail, a potential new witness against Blankenship surfaced in that Delaware case.  And according to a Sunday night legal filing (detailed here in today’s Gazette-Mail), this new witness — former Massey ventilation expert Bill Ross — could provide prosecutors with remarkably strong testimony in the trial:

Less than a year before the Upper Big Branch Mine Disaster, then-Massey Energy CEO Don Blankenship was warned by one of Massey’s top safety officials about serious problems at his company’s operations, according to a new memo that surfaced earlier this year and now is among the key evidence prosecutors hope to use to prove criminal charges against Blankenship.

The June 25, 2009, memo to Blankenship from then-Massey lawyer Stephanie Ojeda summarized the safety concerns being raised by Bill Ross, a former U.S. Mine Safety and Health Administration official who had left MSHA for a job as a top mine ventilation expert for Massey …

Ojeda wrote that the memo was a report of a meeting she held with Ross and Suboleski on June 17, 2009, to discuss safety violations Massey operations were receiving. Ross had talked to a variety of Massey miners and became extremely concerned.

“Bill has often heard in his travels around Massey, ‘We have been told to run, run, run, no matter what. We will fix it when they find it,’ ” the memo from Ojeda says. “Bill explains that this is no way to run a coal mining business. When we receive one violation, it means that we have failed.”

Read the rest of this entry »

Blankenship seeks to limit government’s opening

October 4, 2015 by Ken Ward Jr.

Mine Explosion Congress

Lawyers for former Massey CEO Don Blankenship filed an interesting motion  this afternoon. Here are the basics:

Defendant Donald L. Blankenship respectfully requests that the Court limit the government’s discussion of William Ross in its opening statement to clearly admissible evidence and to preclude any discussion about what Mr. Ross may say unnamed persons told him.

Readers who checked out our Gazette-Mail story this morning may have some clue what this is about:

Since the indictment, additional evidence has emerged about Blankenship from a Delaware lawsuit that Blankenship himself filed to successfully seek to force Alpha Natural Resources, which bought Massey in June 2011, to pay the costs of Blankenship’s legal defense in the criminal case, which, through April 1, amounted to nearly $6 million.

Alpha officials argued in that Delaware case that they did not have to pay Blankenship’s legal costs because they had determined that “Mr. Blankenship had reasonable cause to believe his conduct was unlawful.”

During a trial in early April, several Alpha officials testified about a report that recounted the concerns that Bill Ross, a former MSHA official and Massey safety official, raised about safety at Massey operations.

UPDATED: We have much more on this story on the Charleston Gazette-Mail website tonight.

The Blankenship team’s motion explains:

We understand that the government expects to call Mr. Ross to testify about (a) conversations he had with two Massey executives that were memorialized in a memorandum forwarded to Mr. Blankenship (b) a memorandum he drafted for Mr. Blankenship and (c) a conversation he had with Mr. Blankenship. The parties can make available in camera the relevant documents.

Read the rest of this entry »

Out-computed: Blankenship, lawyers and laptops

October 2, 2015 by Ken Ward Jr.

Earlier this week, lawyers for Massey CEO Don Blankenship filed a motion asking U.S. District Judge Irene Berger to allow them additional computer equipment and cell phones in the courtroom for Blankenship’s trial. Apparently, the judge had tightened the local court’s typical rules — and told prosecutors and defense lawyers that each side got only one cell phone.

One cell phone just wasn’t enough for the defense — and U.S. Attorney Booth Goodwin’s office responded that they needed to be able to have just as many devices as Blankenship’s attorneys were allowed.

A secret transcript of Thursday’s court session included a discussion of this weighty issue.

Asked about his motion by the judge, defense lawyer Bill Taylor said, “Well, if you ask my children, they will say that they all need laptops and cell phones.”

Judge Berger responded, “I understand. Fortunately, we’re a little bit older.”

Berger then asked Assistant U.S. Attorney Steve Ruby about the government’s response to the defense motion. “We saw Mr. Taylor’s motion to bring in I think eight or nine laptops and we were … we were afraid we might be out-computed.”

The two sides appeared to eventually agree to Judge Berger’s suggestion that they get two laptops and one cell phone for each side.


Blankenship attorneys file reply to media’s request for access

October 2, 2015 by Ken Ward Jr.

Joel Ebert filling in for Ken Ward Jr. while he continues to watch the jury selection process.

Earlier today Blankenship’s attorneys filed a reply to the Gazette-Mail and West Virginia Public Broadcasting’s request for in camera voir dire.

In their reply, the attorneys say in order to ensure Blankenship’s right to a fair trial the media should continue to be prevented from hearing the proceedings.

“This is a case where prospective jurors likely harbor unfair prejudice against Mr. Blankenship. Closed voir dire is therefore necessary to ensure that such jurors may privately disclose their feelings about the case to the Court, without passing them on to other members of the venire.”

The attorney’s reply then provides details about the process that is currently underway, in which members of the public and the media are relegated to a separate courtroom and provided a video feed.

“The Court’s current approach to voir dire – individual questioning of each prospective juror at the bench with the husher on and a transcript recorded – ensures that each juror’s response is kept private from the other venire members and from the general public. It also permits the Court to accommodate the News Media Interveners’ interest in reporting on the conduct of voir dire by releasing a transcript of the proceedings, if it deems appropriate at some later date after the jury has been seated, with the jurors’ names and other identifying information redacted.”

The attorneys ultimately conclude the actions of preventing further access to the selection process as appropriate.

“There is no other reasonable alternative. The Court should continue with in camera voir dire and reject the News Media Interveners’ request for publicized voir dire.”

The attorneys also outline an alternative to the closure in their latest filing.

Their suggested solution: a recording a transcript of the proceedings which could be released at a later date.

Click here to read a copy of the letter the Gazette-Mail sent to Judge Berger yesterday.

Judge will release Blankenship trial exhibits

October 2, 2015 by Ken Ward Jr.

In an apparent win for public and media access, U.S. District Judge Irene Berger has told lawyers in the Don Blankenship case that she will grant a motion from the Charleston Gazette-Mail and West Virginia Public Broadcasting for daily access to trial exhibits that are shown to jurors.

During a court session on Thursday morning, Berger noted that she had received the media motion, which referenced a 4th Circuit Court of Appeals ruling mandating such access to exhibits and said she wanted to comply with that ruling in Blankenship’s case.

The judge told prosecutors and defense attorneys that they should provide a copy of all exhibits for the media by 9 a.m. the day after those exhibits are used in court.

Also, Judge Berger told both sides that they had until the close of business today to file any response to the media motion asking that the jury selection be opened to the public and the press.

That’s all according to a review of a transcript of Thursday’s court session, which was briefly available for viewing on a public computer terminal at the clerk’s office at the federal building here in Charleston.

42 potential jurors dismissed yesterday

October 2, 2015 by Ken Ward Jr.

Joel Ebert filling in for Ken Ward Jr. while he continues to watch the jury selection process.

Some new information about yesterday’s jury selection.

According to a document filed yesterday and entered today, 88 jurors were present during yesterday’s selection process.

A total of 42 potential jurors were dismissed yesterday. In total, the day’s proceedings took 5 hours and 13 minutes.

Prior to the jury selection process, the court addressed “preliminary matters” before the jury was brought in.

Second day update: Jury selection remains closed

October 2, 2015 by Ken Ward Jr.

Jury selection resumed this morning for the criminal trial of former Massey Energy CEO Don Blankenship.

Dozens of potential jurors filed into the Robert C. Byrd U.S. Courthouse in Charleston. News media and other spectators were again barred from the courtroom.

U.S. District Judge Irene Berger again kept turning off the audio for a video feed into a separate courtroom set aside for the public.

This morning, Blankenship could be seen on the video feed huddling at the judge’s bench during the jury questioning.

Court officials have refused to indicate how far along they are toward picking a 12-person jury to hear the case. Berger has not ruled on a motion by the Charleston Gazette-Mail and West Virginia Public Broadcasting to open the jury selection process to the public.


Don Blankenship arrives at federal court for the second day of jury selection. Photo by Joel Ebert


Blankenship seeks to block MSHA citations

October 2, 2015 by Ken Ward Jr.


Gazette-Mail photo by Sam Owens

While the rest of us were wishing we could hear the jury selection process, former Massey CEO Don Blankenship‘s lawyers were busy, filing a new motion trying to have U.S. Mine Safety and Health Administration citations and orders blocked from being used as evidence in the trial.

Here’s their argument:

Defendant Donald L. Blankenship, by counsel, submits these objections to the admissibility of “Mine Citation/Order” forms written by MSHA inspectors at the Upper Big Branch Mine. MSHA citation forms record inspectors’ statements and findings about conditions and activity they observed in the mine and concerning violations of law. The government intends to admit the forms as evidence and not to call the inspectors who wrote them as witnesses.

The MSHA citation forms are hearsay — out of court statements of declarants, the MSHA inspectors. Fed. R. Evid. 801. And they are testimonial for purposes of the Sixth Amendment’s Confrontation Clause. They contain detailed factual descriptions and were written for use in adversarial administrative and judicial litigation that in this case includes criminal litigation. Admission of the citations in lieu of the inspectors’ testimony, therefore, would violate both Fed. R. Evid. 803(8), which excludes this kind of evidence, and also the Confrontation Clause, which assures defendants the right to cross-examine witnesses presenting evidence against them. As well, admission would be contrary to Fed. R. Evid. 704 because it would improperly place before the jury the opinion of an MSHA inspector that there has been a violation of law.

And here’s the full court filing:

Jury selection transcripts not publicly available

October 1, 2015 by Ken Ward Jr.

Joel Ebert filling in for Ken Ward Jr. while he continues to watch the jury selection process.

Today the Gazette-Mail attempted to obtain the transcripts from the day’s jury selection proceedings.

An initial conversation with Lisa Cook, the official court reporter for the Southern District of West Virginia, indicated we would be able to get the official transcripts later this evening – around 8 or 9 p.m.

Cook estimated the costs for the transcripts to be around $260 to $270. If we wanted the transcripts tomorrow morning, she said, the cost would go down to about $200.

We here in the newsroom were discussing paying for the transcripts and then received another phone call from Cook.

This time, Cook said, she had talked to U.S. District Judge Irene Berger about releasing the transcripts. Berger apparently told Cook that because the selection process and the transcripts produced would contain confidential information, the court would not be releasing them.

Blankenship jury selection: Look, but don’t listen

October 1, 2015 by Ken Ward Jr.


Photo by Ken Ward Jr.

Today’s start of jury selection for the criminal trial of former Massey CEO Don Blankenship was a bit of a disappointment for the handful of Upper Big Branch families who made their way to Charleston and through the security at the Robert C. Byrd United States Courthouse.

As described in a previous blog update and this Gazette-Mail report,  U.S. District Judge Irene Berger has apparently instructed federal marshals not to allow anyone into her courtroom except potential jurors, parties, lawyers and others working on the case. Family members of the 29 miners who died at Upper Big Branch, the media, and other spectators were kept cooling our heels in a courthouse snack bar until an hour after court was to begin.

Chief Deputy U.S. Marshal Tim Goode had told use we would be able to watch and listen to the proceedings from a nearby courtroom that had been equipped with a video feed. The only reason were given for this arrangement — and this came from Goode, not from the court — was that the 100 jurors that were being questioned today took up all the seats in the courtroom.

After we learned of this arrangement, the Gazette-Mail’s Joel Ebert hand-delivered a letter to the court, asking Judge Berger to at least allow one “pool” member of the media into the courtroom where things were actually happening. Deputy Marshal Goode had refused my repeated requests that he pass on that request to the judge.

Once we got to the separate courtroom, though, the real problem became clear: We can’t hear.

Sometimes the sound system doesn’t seem adequate. Other times it looks like Judge Berger has moved her microphone away from her mouth. And lawyers and potential jurors aren’t being instructed to use microphones at all.

But it also is clear that sometimes Judge Berger is just turning off the sound system. When individual jurors were being called up for questioning, they were going to the judge’s bench, and were surrounded by prosecutors, defense attorneys, and court staff. And very seldom could any of us in the separate courtroom hear a thing.

At one point the sound was on and working well and we could hear that about five prospective jurors were being dismissed. But we weren’t allowed to hear the earlier discussion between lawyers and the judge — so we don’t know the reasons they were dismissed.

Also, by the way, there has been no public announcement (at least not when were allowed to hear) of the actual rules Judge Berger has in place for jury selection.

Did they give Blankenship’s defense team the additional 10 strikes they wanted? We don’t know. Are Blankenship’s lawyers, who complained for months he couldn’t get a fair trial in coal country now trying to get miners or others with favorable views of the coal industry onto the jury? We don’t know.

It was just this kind of secrecy that led the Charleston Gazette-Mail and West Virginia Public Broadcasting to file this motion yesterday asking the judge to ensure an open, transparent jury selection process. As we reported this morning:

Sean McGinley, attorney for the Gazette-Mail and Public Broadcasting, wrote that Blankenship’s request to have “in camera” questioning of potential jurors “would infringe on the news media and the public’s important constitutional and common law rights of open access to criminal trial proceedings and secret this important part of the criminal trial process from public view.”

Morning update on Blankenship jury selection

October 1, 2015 by Ken Ward Jr.

Media and family members who arrived at the courthouse this morning were herded into a first floor snack bar, with soda machines and ESPN playing on the television.

Chief Deputy U.S. Marshal Tim Goode said that the 100 jurors called for questioning on Thursday would fill the courtroom. Only attorneys and jurors would be allowed in. Media and other spectators would be sent to a separate courtroom where they could watch via video feed.

Not until 10 a.m., an hour after court was scheduled to start, did security officers escort spectators to the separate courtroom. Then, when Judge Berger began asking questions of individual jurors, she called them to the bench and spectators could not hear what was being said via the video feed.

It was not clear from the video feed whether potential jurors would be excused based on their answers. Berger has not publicly announced the exact procedures for the jury selection. She has not, for example, publicly ruled on Blankenship’s request for 10 additional pre-emptory challenges.

Blankenship’s politics, and looking ahead to trial

September 28, 2015 by Ken Ward Jr.


Gazette-Mail file photo by Chip Ellis

Late last week, U.S. District Judge Irene Berger denied the latest effort by former Massey Energy CEO Don Blankenship to delay his day in court, making it seem even more likely that Blankenship will face trial starting with jury selection that’s scheduled to begin Thursday.

West Virginia Public Broadcasting kicked off a new trial podcast, and the first episode — featuring our friend Howard Berkes of NPR and Charleston lawyer Mike Hissam (a former prosecutor in Booth Goodwin’s office who worked in parts of the Upper Big Branch case) — provides some great commentary to help listeners prepare for the trial.

Meanwhile, my colleague David Gutman gave Gazette-Mail readers a glimpse at the long political shadow cast by Blankenship, with this story on Sunday:

Before last year’s elections, before he was indicted, one year before he would go to trial, West Virginia Democrats warned that Don Blankenship was trying to buy the state.

“Why are out-of-state billionaires trying to buy West Virginia?” one flier from the state party blared, next to pictures of Blankenship and the Koch brothers. “Only you can stop them.”

For Blankenship, at least, there’s no proof that allegation was true, and as a political strategy, it certainly didn’t work.

There is no record of Blankenship making any political donations in West Virginia in 2014, and Republicans made unprecedented gains — winning the statehouse for the first time in eight decades and winning every available congressional seat.

But those gains were engineered, in part, by Blankenship’s longtime personal aides and political operatives, who continue to hold outsize influence in state Republican politics. And, as Blankenship faces three felonies and up to 30 years in jail in perhaps the highest profile trial in West Virginia history, he still casts a long shadow over West Virginia politics.

Blankenship’s favored policies — lower taxes, anti-union measures, pro-business legal reform and the easing of coal industry regulations — have mostly been implemented, in part because as the state has shifted toward the GOP his ex-lieutenants have been successful in helping Republican candidates get elected.

There’s more pre-trial coverage to come.

We’re still waiting for Judge Berger to rule on a variety of things, including most importantly the “motions in limine” (see here, here and here) that will decide what is and isn’t allowed as evidence in the trial. And the judge has yet to provide many details about how she plans to handle jury selection, or if the public will be able to see what goes on during that process.  Also pending in Blankenship’s latest effort to convince the judge to move the trial from Southern West Virginia.

Don Blankenship: Waiting for the trial

September 10, 2015 by Ken Ward Jr.

Mine Explosion

With just three weeks left before the Oct. 1 start of jury selection in the trial of former Massey Energy CEO Don Blankenship, the calls and emails from out-of-town journalists are on a little bit of an upswing.

National media outlets are looking for some tidbit of gossip or some shred of never-reported news that they can turn into an exclusive. All manner of freelancers and authors are hoping the local press has some inside information — Is the trial really going to go this time? When will they be done with this tiresome jury selection and get to the opening arguments? What’s the schedule for the best witnesses?

Personally, there’s part of me that would be more than happy if most of the media (and a lot other curious folks) stayed away. Of course, we want everyone to get their news from the Gazette-Mail. And it’s not that I don’t think the more-the-merrier isn’t really the case when it comes to stories about the coal industry’s real impact on West Virginia communities. But there’s a fine line where it can all become a bit of a circus. Let’s hope that isn’t what happens when Blankenship gets his day in court.

Still, there is an obvious role for the media to play. We’re supposed to inform the public about the workings of the courts and, in the process and through transparency, create more public confidence in our nation’s criminal justice system. We’re supposed to make sure that judges and prosecutors don’t abuse the rights of defendants. We’re supposed to make sure everyone in the system does their jobs.

Hopefully, the results of the media’s legal battle to overturn U.S. District Judge Irene Berger’s gag order in the Blankenship case has helped to serve those purposes. With almost all of the filings in the case now public record, we’ve been able to reveal to the public Blankenship’s argument that the case is all political, and provide readers with some preview and context for the sorts of evidence and legal arguments that will come up once the trial gets going (see here, here, here and here). And for you national media folks, yes, if you read the court filings on PACER (and we’ve been posting most of them online, linking to them in our stories, and providing anyone without a PACER account free access), there have been some fascinating new details that have come out about Blankenship and his way of running a coal company.

Read the rest of this entry »

Court won’t block Clean Power Plan

September 10, 2015 by Ken Ward Jr.

Climate Rules Arkansas

Here’s the news from The Wall Street Journal:

A federal court denied a request by more than a dozen states on Wednesday to temporarily block the Obama administration’s carbon regulations while they mount a full legal challenge to the rules.

The decision is an early victory for the Environmental Protection Agency, which completed the rules last month calling for carbon emissions from power plants to be cut 32% by 2030 from 2005 levels. The regulations are the cornerstone of President Barack Obama’s climate plan, and Wednesday’s ruling is an early legal salvo in what is expected to be a yearslong court battle over Mr. Obama’s climate agenda.

West Virginia Attorney General Patrick Morrisey has been leading the legal fight against the EPA rule. You can read the court’s brief decision here.

Happy Labor Day

September 7, 2015 by Ken Ward Jr.

ADVANCE FOR USE SUNDAY, SEPT. 6, 2015 AND THEREAFTER - FILE - In this Oct. 15, 2014 photo, coal miners return on a buggy after working a shift underground at the Perkins Branch Coal Mine in Cumberland, Ky. As recently as the late 1970s, there were more than 350 mines operating at any given time in Harlan County. In 2014, it's around 40. (AP Photo/David Goldman, File)

In this Oct. 15, 2014 photo, coal miners return on a buggy after working a shift underground at the Perkins Branch Coal Mine in Cumberland, Ky. (AP Photo/David Goldman, File)