Massey safety chief, 5 others refuse to testify in probe of Upper Big Branch Mine Disaster

October 28, 2010 by Ken Ward Jr.

Massey Energy continues to promote the notion that the company wants a thorough, complete and open investigation of the April 5 explosion that killed 29 miners at the company’s Upper Big Branch Mine in Raleigh County.

But we’ve confirmed through a public records request that Massey’s top safety officer — Vice President of Safety Elizabeth Chamberlin (above photo) — and five other management personnel have informed the state they were invoking their 5th Amendment rights to not answer any questions about the disaster.

I’m posting here a copy of a document that Managing Deputy Attorney General Tom Smith titled “Supplement to Case Resolution Statement,” which includes 5th amendment “assertion letters” from Chamberlin and from Massey officials Rick Foster, Rick Nicolau, Gary May, Jamie Ferguson and Wayne Persinger.

Readers may recall that these were the six Massey employees who filed suit in Raleigh Circuit Court last month to try to block subpoenas issued to them by the West Virginia Office of Miners Health, Safety and Training.   The Manchin administration settled that litigation by agreeing to allow these six officials to invoke their 5th Amendment rights by letter, rather than showing up and doing so in person on the record — a situation that could have forced them to repeatedly cite their rights in refusing to answer multiple questions from government investigators.

The state mine safety office released that previous litigation settlement in response to a Freedom of Information Act request only because I reminded them of a 1986 state Supreme Court case, Daily Gazette v. Withrow, that requires state agencies here to maintain a copy of litigation settlements available for public review.

Interestingly, the Manchin administration is now saying that other “assertion letters” — submitted by Massey employees other than those who were direct parties to that litigation — will not be released under FOIA and are being withheld as secret law enforcement documents.

All six of the assertion letters released thus far complain that the ongoing government investigation is being conducted in an unfair manner, by allowing MSHA and Gov. Manchin’s independent team, headed by Davitt McAteer, to take part in interviews. They also note that transcripts from those interviews are being turned over to the U.S. Justice Department, which is conducting a criminal investigation of the disaster and events prior to it at the Upper Big Branch Mine. All of the letters assert that the Massey officials who are taking the 5th did nothing wrong, but simply are refusing to take part in what they view as an unfair investigation.

As you can see, most of the letters are short, but Elizabeth Chamberlin’s written by Crowell & Moring attorney Philip Inglima, offers this more detailed explanation of the decision to refuse to testify:

After receiving the subpoena, I explored available information about the course of this joint investigation to date. I was alarmed to learn that the process had been dominated by MSHA and that some witnesses had been bullied or abused by some of the questioners — particularly by representatives of the Governor’s task force.

… The conduct of MSHA and the Governor’s task force in this joint investigation had created an atmosphere that was biased, abusive to the witnesses, and dedicated not so much to discovering facts pertinent to those offices’ legitimate missions as to advancing a parallel criminal investigation for self-serving reasons.

It goes on:

… Any process in which MSHA and the Governor’s task force coat-tail upon the authority of the state affords those parties an opportunity to employ the practices and to advance the improper objectives that stoked our concerns.

In sum, nothing that has happened during the past month has abated our concern with MSHA’s aberrant and improper behavior during the course of this investigation. Simply put, MSHA knows that its own past decisions and conduct are very much at issue in this investigation, and it is acting accordingly at this time, trying to divert attention and blame from itself and onto others.

In such a climate, Ms. Chamberlin has reluctantly accepted our advice that … we cannot envision a circumstance in which the joint investigation testimony … would be free from the many pitfalls and defects that we have summarized above …

Ms. Chamberlin is blameless in this terrible tragedy that occurred at Upper Big Branch Mine. We will not subject her to the perils of this extraordinary and hostile process.

We’ll have to see what happens now, and how this will affect the government investigation at Upper Big Branch. And we’ll wait to see if the Manchin administration decides to allow the public to know what’s going on with other witnesses who are taking the 5th.

A schedule of October interviews listed at least five other Massey officials who were refusing to testify, including Massey senior vice president Chris Adkins, vice president of underground operations Jason Whitehead, and Massey compliance officer Gary Frampton, who calls for a “focused and honest investigation” of the Upper Big Branch Disaster in this recent video posted on Massey’s Web site:

VIDEO: UBB Update From Gary Frampton from MasseyEnergyCo on Vimeo.

13 Responses to “Massey safety chief, 5 others refuse to testify in probe of Upper Big Branch Mine Disaster”

  1. Joey says:

    The Fifth Amendment protects witnesses from being forced to incriminate themselves. To “plead the Fifth” is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal conduct punished by fines, penalties or forfeiture….

    Intresting this would even apply to an accident investigation unless there is wrong doing involved…Im interested to see if any lawyers out there will comment on this one. Mr. Harvey?

  2. Monty says:

    Massey wants a thorough, complete and open investigation of why 29 of its employees died at Upper Big Branch, but – actions speak louder than words. Massey’s vice president of safety is invoking her Fifth Amendment right against self-incrimination.

    What does that say about Massey’s desire for a thorough, complete and open investigation?

  3. Ken Ward Jr. says:

    You’re quoting from the nice little Wikipedia discussion of the 5th Amendment that I linked to in that post. Thanks for clicking through.

    Strictly speaking, the relevant part of it says that no one “shall be compelled in any criminal case to be a witness against himself.”

    Regarding criminal cases, the discussion had this to say:

    The Supreme Court ruled that the government cannot punish a criminal defendant for exercising his right to silence, by allowing the prosecutor to ask the jury to draw an inference of guilt from the defendant’s refusal to testify in his own defense. Griffin v. California, 380 U.S. 609 (1965). In Griffin, the Court overturned as unconstitutional under the federal constitution a provision of the California state constitution that explicitly granted such power to prosecutors.

    In a civil case (such as a wrongful death case), it says:

    While defendants are entitled to assert that right, there are consequences to the assertion of the Fifth Amendment in a civil action.

    The Supreme Court has held that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). “[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, ‘Silence is often evidence of the most persuasive character.’” Id. at 319 (quoting United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-154 (1923)). “‘Failure to contest an assertion…is considered evidence of acquiescence…if it would have been natural under the circumstances to object to the assertion in question.’” Id. (quoting United States v. Hale, 422 U.S. 171, 176 (1975)).

    In Baxter, the state was entitled to an adverse inference against Palmigiano because of the evidence against him and his assertion of the Fifth Amendment privilege.

    If you read the letters from the attorneys, it is clear that they are all concerned about he ongoing criminal investigation as well as the MSHA civil probe, especially because — according to them — transcripts of the civil interviews are being given to the DOJ lawyers doing the criminal investigation.

  4. Joey says:

    Layman’s terms…The jury or court can’t consider the taking the Fifth in and of itself as proof of wrong doing then as I read it? But in the court of public opinion it speaks volumes… What about the PR war? I wonder if they would agree to be questioned by the Massey investigation team? Do these individuals comprise the company’s investigation team…

  5. Thomas Rodd says:

    This lawyer’s understanding is that it is difficult to be selective as to which questions you do and don’t answer if you have self-incrimination, so people can and normally do “take the fifth” and refuse to answer all questions about a matter — if they are willing to state, by doing so, that their reason for doing so is that they are concerned that their truthful answers could be used against them in a criminal prosecution.

    In other words, Joey, I think you have it right. Under all the posturing, these people are saying that if they honestly answered the questions they think they will be asked about UBB, they are afraid that what they say MIGHT be used as evidence against them. That’s what taking the fifth means.

    If these witnesses did not have this protection, then they could be jailed for contempt for refusing to answer questions — even if the answers were evidence that they have committed crimes. That’s like torturing people to get answers, which we gave up on (mostly) a long time ago.

    If the government wants to compel a witness’ testimony when they take the fifth, the government has to agree not to directly or indirectly use that testimony against them — to give them “immunity.” Then the witness can’t legally refuse to answer. Remember the lady in Arkansas who got immunity and sat in jail for a year rather than answer questions about Bill Clinton?

    These Massey witnesses don’t have any right to take the fifth to protect others, though, so if anyone is granted immunity, their testimony can be used against others.

    And, in some cases, where the government gets evidence entirely from another source, a person can still be convicted by not using their immunized testimony. But Oliver North got his conviction reversed where the two bunches of evidence were mixed together in the court’s mind.

    When I was a boy, people were hauled in front of right-wing Congressional Committees and asked if they were members of the Communist Party, which was for a while defined as a criminal organization. People who asserted their Fifth Amendment rights were called “Fifth Amendment Communists,” even though many were people who just thought it was none of the Government’s business.

    My hero Pete Seeger brought his banjo to such a hearing. According to a web article:

    In 1955 Seeger was subpoenaed by the House Un-American Activities Committee and became one of the few witnesses called that year who didn’t invoke the Fifth Amendment. In a dramatic appearance before the committee, Seeger claimed that to discuss his political views and associates violated his First Amendment rights. I like that!

    I wish we had some of the Massey folks emulating Seeger and appearing in person and telling us in person why they won’t testify. It’s their right, of course, to clam up — but their actions make the company’s position look weak, dishonest, and secretive. On the other hand, it might help keep them out of the hoosegow!

  6. Thomas Rodd says:

    I should have said that jailing a witness for contempt was “like torturing people to get answers” THAT WILL BE USED AGAINST THEM, “which we gave up on (mostly) a long time ago.”

  7. Jim says:

    Good, there’s an ongoing criminal probe so testifying would not be in the interest of the employees. The second poster asked what it said about Massey. It doesn’t say anything, it’s the employee’s decision.

  8. bruce stanley says:

    Re: the update — “And we won’t stop until we do.” I think taking the Fifth constitutes “stopping” (sad, unintended pun for the Aracoma listeners out there). Gives a whole new meaning to that delectable Appy phrase, ” ’nuff said.”

  9. M.B. Drapier says:

    I hope they all plead the Fifth in a public hearing.

  10. Rex B says:

    M.B. Drapier, I hope they do too. It’s their right, and they should exercise it.

  11. Monty says:

    It may be the individual employee’s decision, but since Massey is paying their lawyers, then by extension does it not become Massey’s decision that they not testify?

  12. M.B. Drapier says:

    Of course it’s their right, but that doesn’t alter the appearance of culpability and evasion that goes with it.

  13. 2581 says:

    None of this circus would have occurred had MSHA asked Congress – sometime in the last 3 decades – to amend the Mine Act to grant it subpoena power without the necessity of holding a public hearing. Instaed, MSHA has continued to follow its ridiculous policy of asking potential witnesses to consent to an interview – with the acknowledgement that they can terminate the interview at any time or refuse to answer any question. Who in their right mind thinks that an agency can conduct an effective investigation in such a manner? Nonetheless, MSHA – untll the Massey Disaster – made no effort throughout the years to lobby Congress to give them subpoena power. While Massey’s lawyers are milking this for all its worth, much of the blame rests with MSHA for not anticipating such a scenario unfolding…

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