Coal Tattoo

Blankenship resurfaces – with a morality lecture?

Without a doubt, one question I get asked more than any other is: “What’s Don Blankenship up to these days?”

One thing I know for sure is that Blankenship testified under oath a few months ago that he now lives in Johnson City, Tenn. I haven’t been able to confirm persistent rumors that he’s back in the coal business in some capacity.

But this morning, readers of the Charleston Daily Mail’s editorial page were treated to an op-ed under Blankenship’s byline. Headlined “The 2004 allegations against McGraw hold up: Child molesters do not belong in public schools,” the piece is a take on — of all things — the Penn State University football program’s child rape scandal. The article begins:

Joe Paterno and the Penn State football program have gotten a lot of deserved negative media publicity the past few weeks. The Penn State coaches and administrators failed to report to authorities that a child molester was on their staff.

Public and media outrage has been pretty much unanimous. Many at Penn State who remained quiet about the incident have lost their jobs.

The Penn State incident reminded me of the Warren McGraw 2004 State Supreme Court race. Contrast Joe Paterno’s action with Warren McGraw’s action.

Joe failed to properly report the incident he was aware of, but Justice Warren McGraw voted to not only release a recently convicted child molester from prison but literally ordered that the molester work at a school as a custodian.

Wow. It’s hard to know where to start with this. But let’s give it a shot …  First of all, is Blankenship’s comparison between the Penn State situation and the case of Tony Dean Arbaugh a valid one?

At Penn State, top university officials and athletic program administrators are alleged to have ignored reports that a one-time assistant coach sexually assaulted or had inappropriate contact with at least eight underage boys. If proven true, the allegations show that Penn State officials tried to avoid a law enforcement investigation that would have gotten to the bottom of the situation and punished those responsible.

In the Arbaugh case, then-Justice Warren McGraw voted (along with Justices Joe Albright and Larry Starcher) to release from prison Tony Dean Arbaugh, who was jailed after pleading guilty to one count of first degree sexual assault for abusing his half-brother. Justice McGraw didn’t try to cover up Arbaugh’s crime. He simply voted that Arbaugh — himself a sexual abuse victim — needed another chance in life.

The Supreme Court’s 3-2 ruling in that case spelled out Arbaugh’s past very clearly, outlining both what had happened to him and what he had done to others:

The appellant in this case, Mr. Arbaugh, has lead a long and painful life. He endured a long history of sexual assault at the hands of two of his adult male family members, beginning when he was seven or eight years old. These assaults included oral sex, sodomy, mutual masturbation, and “dry humping.” Mr. Arbaugh was also sexually assaulted by one of his teachers for a period of four years. As a result of these attacks, Mr. Arbaugh began acting out sexually against his younger half brother … He plead guilty under the information to one count of first degree sexual assault.

Gazette photo by Chip Ellis

The ruling spelled out Arbaugh’s problems at rehabilitating himself and what he was seeking in this latest appeal, and the rationale for granting what he sought:

On February 1, 2001, Mr. Arbaugh timely filed a motion under W. Va. R. Crim P. 35(b) to reduce his sentence by granting him probation to pursue another rehabilitation program. At the Rule 35(b) hearing, Mr. Arbaugh presented the testimony of Paul Flanagan, who works for Youth Systems Services (hereinafter “YSS”). Mr. Flanagan is a graduate of the Criminal Justice Police in the United Kingdom and is a volunteer with the Marist Brothers, a Roman Catholic religious community. Mr. Flanagan explained that YSS is a unique consulting program that for the last thirty years has worked with over 16,000 youngsters and averaging 600 annually. YSS has won many national awards and is one of only six private detention facilities in the United States. Mr. Flanagan explained that YSS was not asking to be paid for this program for Mr. Arbaugh, but chose to do it because they believed that Mr. Arbaugh “can be saved and can be brought around to a pro-social life. The pro-social adult to serve in the community.”

Mr. Flanagan explained that Mr. Arbaugh’s YSS program would consist of removing him from the Eastern Panhandle to the Northern Panhandle so as to remove him from the influences that initially caused his conduct. Mr. Arbaugh would reside in community apartments coupled with a variety of skill development programs so as to prepare him for independent living. He would be employed as a janitor at a local Catholic high school, and would work under the supervision of Brother Dan O’Riordian. Mr. Arbaugh would also be provided supportive services through the Marist Brothers and would have access to designated YSS staff “24/7” for crisis situations.

We agree with the State that Mr. Arbaugh’s rehabilitation has not been without its bumps, but …  Considering Mr. Arbaugh’s tender age and extreme victimization, we cannot, we will not, surrender any opportunity to salvage his life and to turn him into a productive member of society … We can conceive of no greater miscarriage of justice than subjecting Mr. Arbaugh under the facts of this case to a term of imprisonment without affording him every opportunity to rehabilitate himself.

There’s a pretty clear difference between the Penn State situation — where an alleged serial rapist of children was benefiting from what appears to have been a widespread cover-up by the university and its famed football program — and the Arbaugh case, where Justice McGraw was one of three judges ruling on an appeal regarding a convicted criminal whose life record was all out there in the public for anyone to see.

So I guess Blankenship’s problem is that he doesn’t think the media covered the case properly.  He writes at one point:

The media didn’t express outrage at McGraw’s vote. They instead tried to focus the public’s attention on upcoming civil court cases.

Coal Tattoo readers certainly know that Blankenship spent more than $3 million of his own money to help Charleston lawyer Brent Benjamin defeat McGraw in the 2004 general election, this at a time when Massey Energy had an appeal of a $50 million verdict against it heading for the Supreme Court. Was this connection newsworthy? The U.S. Supreme Court’s ruling in Caperton v. A.T. Massey would certain suggest so. The Court found that Benjamin, by initially taking part in the appeal had violated Hugh Caperton and Harman Mining’s right to due process with a conflict of interest that Justice Kennedy called “extreme”:

Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case. We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.

Blankenship also complains about a lack of media coverage when Arbaugh, after being released by the Supreme Court, got into trouble again:

… The molester was later caught with a gun and drugs. Fortunately, he was sent to prison again. Absent, though, was any noticeable report of this arrest in the media. Unbelievably, McGraw has since been re-elected to the court as a circuit judge in Wyoming County. Maybe the media, like Joe Paterno, should lose their jobs for failing to report the truth of his release or that the molester was subsequently jailed again.

I checked through our Gazette library, and my friend Paul Nyden wrote a story that was published in page 1B — the local news section front — on Sept. 6, 2009 (subscription required):

Five years after he became a pawn in state Supreme Court politics, Tony Dean Arbaugh Jr. is back in prison for violating probation and drug laws.

Dr. Nyden explained how the Blankenship campaign against McGraw had affected Arbuagh:

The attack ads began running shortly after Arbaugh was released on probation.

“Letting a child rapist go free to work in schools, that’s radical Supreme Court Justice Warren McGraw,” the ads said of Arbaugh.

“Now, every time I walk outside, everyone’s looking and taking their kids in. It messes with me,” Arbaugh said during a September 2004 interview with The Charleston Gazette.

“Last night, a cop watched me for 30 minutes while I was playing basketball. It makes me not want to go out,” he said.

Lary Garrett, a Moorefield lawyer who represented Arbaugh, said the man’s problems re-emerged after the campaign ads. He spoke with the Sunday Gazette-Mail last week.

Arbaugh’s counselors saw promise in him when he was released in the spring of 2004.

“Then those ads started running,” Garrett said. “Kids like that give up pretty quick.

Within a year, Arbaugh was back in jail for violating his probation and drug charges, Garrett said.

“Tony seemed to be doing OK when he got out. But all of a sudden, within a few weeks, his picture was on TV.

“Anywhere he went, everyone was looking at him. When he went to shoot baskets, everyone was looking at him. He was Public Enemy No. 1.

“The way Blankenship and Benjamin used Arbaugh to their advantage in 2004 is just outrageous. It is the worst of what electoral politics is all about,” Garrett said.

Another story Dr. Nyden did (subscription required) explained what is really the only reasonable connection to be made between the Penn State situation and the Arbaugh case — the failure of local school authorities to help Arbaugh himself when he was being molested as a child:

A month after he turned 11, Arbaugh started fourth grade in Circleville Elementary School in Pendleton County. He repeated fourth grade, too.

His teacher was Ferlin Jay Heavener, now serving time in the Mount Olive Correctional Complex after pleading guilty to 20 counts of sexual assault and five counts of delivering drugs in 1999. Arbaugh was one of his victims.

Pendleton County school officials knew about Heavener’s activities at least since 1991, years before anything was done.

In an August 2002 opinion, U.S. District Judge Irene Keeley noted that Heavener often drove Tony home from school.

“The two eventually began to use drugs and alcohol together after school hours,” Keeley wrote. “In the summer of 1994, after Arbaugh’s ‘second’ fourth-grade year, Heavener initiated sexual intercourse with Arbaugh. In the following three years, Heavener and Arbaugh engaged in oral and anal sex numerous times.” Five years later, Arbaugh’s testimony helped send Heavener to Mount Olive.

McDaniel, his counselor, said, “Tony helped prosecute the teacher who sexually offended him and a lot of other boys. He believed it would stop someone else from being victimized in the future.” Arbaugh filed a federal civil suit against the Pendleton County Board of Education and school officials in July 2001. Arbaugh will receive a $500,000 settlement in the lawsuit, state Chief Deputy Attorney General Fran Hughes told The Associated Press Wednesday.

Blankenship concludes his op-ed piece by opining:

We will have to wait and see what the outcome is at Syracuse and Penn State, but the media needs to understand the difference between child molestation and politics and between the truth and positions of power.

The truth and positions of power? If you’ve been wondering what any of this has to do with coal mining, this is where that part comes in … What about truth and positions of power? What about the truth about the Upper Big Branch Mine Disaster and the position of power that Don Blankenship held over how mines like Upper Big Branch were operated?

While reading Blankenship’s lecture to the media about morality, I couldn’t help but think about what independent investigator Davitt McAteer and his team found in their probe of the deaths of 29 miners at one of Don Blankenship’s mines:

Many safety systems created to safeguard miners had to break down in order for an explosion of this magnitude to occur. The ventilation system had to be inadequate; there had to be a huge buildup of coal dust to carry the explosion; there had to be inadequate rock dusting so that the explosiveness of the coal dust would not be diluted; there had to be a breakdown in the fireboss system through which unsafe conditions are identified and corrected. Any of these failures would have been problematic. Together, they created a perfect storm within the Upper Big Branch Mine, an accident waiting to happen.

Such total and catastrophic systemic failures can only be explained in the context of a culture in which wrongdoing became acceptable, where deviation became the norm. In such a culture it was acceptable to mine coal with insufficient air; with buildups of coal dust; with inadequate rock dust. The same culture allowed Massey Energy to use its resources to create a false public image to mislead the public, community leaders and investors — the perception that the company exceeded industry safety standards. And it became acceptable to cast agencies designed to protect miners as enemies and to make life difficult for miners who tried to address safety. It is only in the context of a culture bent on production at the expense of safety that these obvious deviations from decades of known safety practices makes sense.

The McAteer team also reported:

There is an obvious disconnect between the lofty safety standards extolled by Blankenship and the reality of conditions inspectors and investigators found in the Upper Big Branch mine. Requiring reflective clothing, metatarsal boots and seat belts are all good practices. But they do not address the basics of safe mining – proper ventilation, adequate rock dusting, well maintained equipment and fire suppression. In those basic areas of worker safety, Massey Energy has fallen woefully short. As for Blankenship’s assertion that the company does not place profits over safety, again, evidence strongly suggests otherwise.

Of course, despite his position of power — or perhaps because of it — Blankenship has refused to appear before state and federal investigators to tell the truth in the Upper Big Branch probe, preferring instead to carry on (at least until he was pushed out in the Alpha merger) a public relations campaign aimed at convincing the public the worst U.S. coal-mining disaster in a generation was an act of God.

As I pondered this all this morning, I was also reminded of a quote attributed to Blankenship by my friend Jeff Goodell at Rolling Stone:

If any of this troubles Blankenship, he doesn’t let on. By his own accounting, the bottom line provides all the proof he needs of his virtue. “I don’t care what people think,” he once said during a talk to a gathering of Republican Party leaders in West Virginia. “At the end of the day, Don Blankenship is going to die with more money than he needs.”