What’s next in the Upper Big Branch criminal probe?

March 1, 2013 by Ken Ward Jr.

Well, in case you missed it, yesterday’s big news is in today’s Gazette:

A former Massey Energy official who is cooperating with prosecutors on Thursday implicated the company’s former chief executive officer, Don Blankenship, in a decade-long conspiracy to hide safety violations from federal inspectors.

Former Massey official David C. Hughart pleaded guilty to two federal criminal charges that he plotted with other company officials to routinely violate safety standards and then cover up the resulting workplace hazards.

But a fairly routine plea hearing here took a surprising twist when U.S. District Judge Irene Berger pressed Hughart to name his co-conspirators and Hughart responded, “the chief executive officer.”

What does Blankenship have to say about this?

William Taylor, a lawyer for Blankenship, said his client has done nothing wrong and downplayed the significance of what Hughart said.

“We were quite surprised at the reports of Mr. Hughart’s statements at the time of his guilty plea,” Taylor said. “Don Blankenship did not conspire with anybody to do anything illegal or improper. To the contrary, he did everything he could to make Massey’s mines safe.

“We’re not concerned particularly about the story concerning Mr. Hughart,” Taylor said. “It’s not surprising that people say untrue things when they are trying to reduce a possible prison sentence.”

The Associated Press, which had reporter John Raby in the courtroom, led its story on the hearing this way:

A longtime subordinate of ex-Massey Energy chief Don Blankenship publicly implicated his boss for the first time Thursday in what appears to be a widespread corporate practice of warning coal miners about surprise inspections.

The Wall Street Journal said in  its story:

The former head of a Massey Energy Co. subsidiary pleaded guilty to conspiracy charges and alleged he was ordered by the Massey chief executive at the time to illegally warn miners of imminent safety inspections.

And Howard Berkes over at NPR wrote on the Two-Way Blog:

A relatively routine plea hearing in Beckley, W.Va, Thursday, took an unexpected and dramatic turn when a former Massey Energy executive implicated former CEO Don Blankenship in a criminal conspiracy.

It’s the first time Blankenship has been publicly named as an alleged conspirator in the ongoing federal criminal investigation of the 2010 explosion at Massey’s Upper Big Branch coal mine.

The accusation is also the first public indication that Blankenship specifically is in the sights of federal prosecutors.

It’s worth remembering that Judge Berger’s questioning of former Massey officials who have flipped and become government witnesses has produced interesting disclosures before, such as when former Upper Big Branch Mine Superintendent Gary May alleged that federal Mine Safety and Health Administration inspectors were among those in on the conspiracy to provide advance notice of government safety inspections.

United States Attorney R. Booth Goodwin II, left, and Assistant U.S. Attorney Steve Ruby,  in a December 2011 photo. (AP Photo/The Charleston Gazette, Chris Dorst)

And yesterday, Judge Berger was willing to allow Assistant U.S. Attorney Steve Ruby to clear up some apparent misunderstanding in Dave Hughart’s answers in a private bench conference — outside the watchful ears of the public and the media. The judge did the same thing during Gary May’s sentencing hearing, when she allowed a private discussion about what sort of cooperation Gary May is giving in the ongoing investigation

Another thing worth mentioning is that, after the question that produced the “chief executive officer” answer, Judge Berger asked Hughart who else conspired with him and Hughart said no one. That answer — if it’s what Hughart really meant to say — certainly doesn’t match the notion of a broad conspiracy of the sort prosecutors have alleged.

Now that Blankenship’s been implicated in court by Hughart, look for prosecutors to try to cut off any further such statements, and to be much more guarded in their public and press comments about the ongoing investigation, which has grown from the Upper Big Branch Mine Disaster into a much broader examination of Massey’s safety practices. Why? If charges are eventually filed against someone like Blankenship, such statements could be used to argue prosecutors acted inappropriately, tainting the jury pool or otherwise interfering with a defendants’ rights.

U.S. Attorney Booth Goodwin did issue a press release yesterday, but it was pretty modest in tone, and Goodwin declined to answer further question or to make any of the statements he’s made before about how his office is going to follow the evidence where it leads, and bring to justice whoever was responsible for the deaths of 29 miners in the April 5, 2010, Upper Big Branch explosion.

In his daily commentary, MetroNews’ Hoppy Kercheval, opined:

Federal investigators won’t say publicly whether they are trying to get to Blankenship. U.S. Attorney Booth Goodwin continues to make only general comments. “This is a significant step forward,” Goodwin told me last year when Hughart was charged. “This is not the end of the investigation.”

But how far up the ladder can or will investigators go? Hughart’s comment, if true, hints at what the U.S. Attorney’s office is trying to find out: was there a corporate culture at Massey, including UBB, where upper management pushed operators to skirt safety laws to keep production levels high?

And over at the United Mine Workers of America, union President Cecil Roberts — a longtime adversary of Blankenship’s — had this to say:

Finally there is a witness to Blankenship’s misdeeds who will step forward and tell what he knows. Hopefully more will follow suit.

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