Coal Tattoo

Is Stover sentence setback for UBB criminal probe?

BECKLEY, W.Va. — When U.S. Attorney Booth Goodwin stepped before the microphones outside the federal courthouse earlier this afternoon, the first question for him seemed pretty clear to me:  Was U.S. District Judge Irene Berger’s decision to reject Goodwin’s recommendation and not stick former Upper Big Branch Mine security director Hughie Elbert Stover behind bars for 25 years a setback in the criminal probe of the the nation’s worst coal-mining disaster in a generation?

The U.S. Attorney was pretty clear in his answer:

This is absolutely not a setback.

Believe it or not,  Booth Goodwin is probably right.

Really? How can it not be a setback? Stick with me here … read on.

Federal prosecutors pretty much let it all hang out on this one — They not only asked Judge Berger to “upwardly depart” from the federal sentencing guidance that recommended Stover get 31 to 44 months in prison, but they urged the judge to throw the book at Stover with the maximum sentence allowed by law.

Part of the hope here was that an especially stiff sentence for Stover would send a message to other folks out there who have information that would be helpful to prosecutors … Perhaps some memories would suddenly be refreshed, or folks who have so far refused to cooperate would think making a deal would be better than facing tough jail time if they got convicted.

And in taking that route, Goodwin and his top UBB prosecutor, Steve Ruby, outlined their theory that Stover was partly to blame for the disaster, arguing that he lead a scheme to use advance notifications of government inspections to cover up the real conditions at Upper Big Branch and avoid potentially costly safety improvements.

Prosecutors explained in this sentencing memorandum:

A 20-month MSHA investigation concluded that the systematic practice of providing advance warning of inspections at UBB was part of the cause of that mine’s April 2010 explosion.

Defendant played a singular and indispensable role in these warnings, as the United States proved at trial. He required UBB security guards to act as lookouts for mine inspectors, making a radio announcement the moment an inspector arrived. UBB was a sprawling mine, so these early warnings routinely gave mine officials up to two hours to conceal illegal conditions. Defendant’s wrongdoing helped stop MSHA inspectors from ever discovering how dangerous UBB truly was.

This is where they ran into problems. Judge Berger made it pretty clear that she just wasn’t buying the notion that Hughie Elbert Stover — who probably never went underground at Upper Big Branch in his time working for Massey’s Performance Coal Co. — was to blame for the deaths of 29 coal miners. At today’s hearing, the judge noted that Stover wasn’t actually charged with himself providing advance notice, or even conspiring with others to do so, but with obstrucing the government’s investigation. This led Judge Berger to say pointedly:

There was nothing in this case to indicate that your actions resulted in this particular explosion. There’s no evidence that any actions on your part at around the time of this explosion resulted in the loss of the lives of these miners.

The judge added:

It is a very serious thing to hang death on anyone, and it should only be done when there is evidence to support it.

In a March 15, 2011 photo, Massey Energy Security Chief Hughie Elbert Stover, center, and his wife, left, are swamped by members of the media as they leave the Federal courthouse in Beckley.  (AP Photo/The Register-Herald, F. Brian Ferguson)

Now, that’s a pretty serious smack-down of what the prosecutors were trying to argue in this sentencing. It’s even more so because Goodwin’s team were doing little more than citing the conclusions of MSHA’s investigation.

Keep in mind, the MSHA final report wasn’t released until Dec. 6, 2011 — too late to be used by the government in the late October trial in the Stover case (though MSHA was raising the issue long before Stover was even charged and MSHA laid out a clear theory of advance notice being part of the problem at UBB at a briefing held well before Stover’s trial).

Neither the jury nor Judge Berger heard a detailed discussion of the theory at Stover’s trial. But the judge did hear about it during today’s sentencing hearing. MSHA coal administrator Kevin Stricklin testified about it, and former Upper Big Branch superintendent Gary May — who has entered a plea agreement and is cooperating with prosecutors — explained specifically how advance notices gave him the chance to temporarily fix safety problems before inspectors could catch them and demand a more comprehensive repair. That testimony — evidence that advance notifications were indeed a contributing cause of the disaster — was not challenged, either on cross-examination by defense lawyer Bill Wilmoth, additional questioning by the judge, or defense witnesses. Yet the judge choose to simply ignore it, pretend it wasn’t there — say she just didn’t buy it.

Part of the problem here for prosecutors appears to be MSHA. Judge Berger has heard that MSHA has very rarely cited mine operators for providing advance notice of inspections, despite the agency’s current claim that this helped cause the Upper Big Branch Disaster and is a major concern across the coalfields.

Looking back, I think the first I saw advance notice of inspections discussed in the context of Upper Big Branch was this story in the New York Times, which I’m sure drew of reporter Gardiner Harris’s experience when he worked for the Courier-Journal in Louisville, Ky., many years ago:

Enforcement at the mines themselves carries a separate set of challenges.

On the narrow and isolated highways of Appalachia’s coal region, the white S.U.V.s of federal inspectors are easy to spot. Coal truck drivers sometimes use CB radios to tell mine operators that the inspectors are on their way.

Convenience store clerks have been known to call in warnings when inspectors stop in to buy coffee. And once the inspectors arrive, operators can employ a variety of delaying tactics so they can clean up glaring violations.

“It’s always been a game of cat and mouse,” said Maurice Mullins, who worked as a federal mine inspector for 32 years before retiring in 2003.

Given this, it’s pretty incredible to look back and think that MSHA didn’t really even start talking about making thwarting advance notice of inspections a priority until after family members of the Upper Big Branch miners complained about the practice during a congressional field hearing Rep. George Miller organized in Beckley in May 2010.

Perhaps it’s this sort of performance by MSHA that led Judge Berger to say this during today’s hearing:

MSHA is not on trial, so I won’t go into my opinion on that, given the evidence I’ve heard.

It’s also possible that Judge Berger was looking at the advance notice issue much more narrowly, pointing out that Stover wasn’t charged with providing advance notice, so even if  inspection warnings helped cause the disaster, he couldn’t be blamed because he wasn’t convicted of that charge. We don’t know what the judge was thinking, only what she said.

That takes us to the next step for Goodwin and his team. Next up is the filing of a formal request to schedule a plea hearing for Gary May, a move that will further confirm what May testified to today about his status as a cooperating witness. May is charged with conspiring to violate mine safety rules at Upper Big Branch and to cover up the resulting hazards. Part of the allegations against him include his involvement in the plan to ensure advance notice of inspections. But prosecutors have other specific offenses they allege May conspired to commit — and some of those things definitely go to the heart of what caused Upper Big Branch, such as redirecting airflow in the mine to fool inspectors into thinking ventilation was acceptable.

And the charges against May (which he is prepared to admit are true) allege that May conspired with “others known and unknown” to put coal production ahead of worker safety. Presumably, part of the reason prosecutors made a deal with May is that he agreed to testify against the “others known and unknown,” to help Goodwin and his team bring charges against these other conspirators.

When you get right down to it, then, it’s hard to see how Hughie Elbert Stover getting only three years in jail hurts the criminal investigation of Upper Big Branch. Stover is 60 years old. As Bill Wilmoth observed today, three years in federal prison is a long time for a 60-year-old man. Heck, three years in prison is a long time for anybody. You really think any of the people on up the line from Stover in the management ladder at Upper Big Branch want to spend three years in prison? Any of the former officers of Massey Energy?

Criminal charges in mine safety investigations are rare. Jail time is even more unusual. Three years in prison is absolutely unheard of for charges related to coal-mine safety and health.

Then again. Goodwin and Ruby told us in their sentencing brief in the Stover case that they were out to change the way the court system responds in worker safety matters:

Longstanding conventional wisdom holds that the federal government cares little about mine safety crimes.  This case has the potential to upend that assumption and foster broad deterrence in an industry that is closely monitoring the outcome here. A sentence consistent with the magnitude of defendant’s conduct and its consequences will send a resounding message: Gambling with coal miners’ lives risks the most severe punishment available under the law.

That takes me back around to Booth Goodwin’s press conference today outside the courthouse in Beckley. My second question for him was about Gary May: Who exactly did he conspire with? Goodwin wouldn’t answer that question this afternoon … maybe he will before too long …