Coal Tattoo

Mine Explosion Congress

Late last Friday, the defense lawyers representing former Massey Energy CEO Don Blankenship filed a motion asking to keep the jury in Blankenship’s criminal trial from hearing any evidence about the April 5, 2010, mine explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.

We published a story that evening online and in the next day’s print edition about the filing, and I’ve posted the court document here.

One of the things I noticed initially about this filing was the little dig Blankenship’s lawyers got in about media coverage of the case:

Not only will every juror know about the UBB explosion, many jurors will bring to this trial the misimpression that this case is about Mr. Blankenship’s responsibility for the UBB explosion. That mistaken belief would have been formed and reinforced repeatedly by the media and interactions in the community. From day one, the local press has covered these proceedings, erroneously, as intended to determine Mr. Blankenship’s responsibility for the UBB tragedy.

The first story cited as an example of this “erroneous” reporting was a piece I wrote for the anniversary of the disaster.  It was headlined, “Upper Big Branch 5-Year Anniversary: Blankenship’s trial is focus of families,” and it says very clearly:

While the allegations against Blankenship focus on events at Massey’s Upper Big Branch Mine, in Raleigh County, prosecutors stopped just short of alleging the former CEO was responsible for the deadly explosion.

The other thing I noticed was that, while Blankenship’s defense team doesn’t want the jury to hear evidence about what happened at Upper Big Branch, they go to great lengths to insist that, if the subject comes up, they can convince jurors that Blankenship’s theories that those 29 miners died in a “natural disaster”:

… Evidence from the government regarding causation and responsibility for the UBB explosion would be met by strong evidence from Mr. Blankenship rebutting the government’s theories, leading to confusion about the actual issues and to undue delay – a satellite mini-trial about the cause of the UBB explosion and who is responsible for it. If the cause of the explosion is at issue in the trial, the defense is ready to present substantial, compelling evidence that the incident was actually a natural disaster.

It does make you wonder why, if their case on the cause of the disaster is so good, Blankenship’s lawyers wouldn’t want to just go right down that road at trial.

Mine Explosion Anniversary

So let’s take a closer look at the underlying issues here, so everyone can at least try to understand what’s going on.

First, as the defense points out, Blankenship isn’t charged with murder or with blowing up the mine.  He’s charged with conspiracy to violate mine safety standards before the mine disaster and with lying to securities regulators and the investing public after the disaster about Massey’s safety practices.

If you think back to the criminal case against Massey’s Aracoma Coal subsidiary after the Jan. 19, 2006, fire that killed miners Don Bragg and Ellery Hatfield, that company did enter into a plea agreement that, among other things, included admitting to a violation of a mine safety standard (failing to provide a safe primary escape route) “which resulted in the deaths” of the miners. But remember that the part about “resulted in the deaths” isn’t part of the criminal code at 30 U.S.C. 820(d). That was just language the prosecutors at the time put into the charging documents.

We know that holding top-level executives accountable criminally for mine safety and health violations is incredibly hard under current state and federal laws. And we know that some in Congress have tried to make it a little easier in legislation that still hasn’t been able to win approval.

Second, U.S. District Judge Irene Berger has already had an opportunity to rule on similar issues in an earlier Upper Big Branch criminal case. Lawyers for former UBB security director Hughie Elbert Stover had sought to block evidence about the mine disaster from his trial on charges that he lied to investigators and tried to destroy evidence after the deadly explosion:

Mine Explosion IndictmentThere is a deep disconnect between what this case is about and what the Government would like it to be about. Hughie Elbert Stover is accused of lying and failing to preserve evidence in an investigation occurring after the April 5, 2010 incident that claimed the lives of 29 coal miners. This case is about whether the Government can prove beyond a reasonable doubt each element of the crimes that Stover is accused of committing.

Stover is not accused of killing the 29 miners who lost their lives at Upper Big Branch. Stover is similarly not charged with any conduct that took place before April 5, 2010.

Accordingly, any evidence or reference to the deaths of miners at Upper Big Branch is unrelated and therefore irrelevant to the criminal charges against Stover.

Any evidence referring to the mine incident or the resulting loss of life would be unfairly prejudicial and has no relevance to the charges in the indictment against Mr. Stover.

In response, Assistant U.S. Attorney Blaire Malkin told the court that evidence about the mine disaster was necessary in the case, at least to make clear to the jury exactly what sort of investigation that Stover was accused of lying about and destroying evidence in:

Defendant’s motion depends on a badly mistaken premise: that evidence of the UBB explosion has nothing to do with the charges against him and can be hidden from the jury without affecting the case. On the contrary, in a trial for obstruction and false statements in an investigation, the nature of the investigation is central. Here, that investigation revolves around the explosion at UBB. Any risk of prejudice falls well within the bounds accepted by courts in similar situations, especially in light of the Court’s ability to monitor references to the explosion and to issue a limiting instruction.

 Judge Berger ruled this way:

For many reasons, evidence of the explosion at UBB is relevant in this case. First, with respect to Counts One and Two, evidence of the explosion at UBB is clearly relevant because the Government must prove the materiality of the alleged false statements. Specifically, the Government must show that Defendant’s statements had a tendency to influence the respective investigations. Second, with respect to Count Three, Defendant stands charged with obstructing  justice in violation of 18 U.S.C. § 1519. An element of this offense is the intent to impede, obstruct, or influence an investigation. This requires evidence of an investigation and also evidence of intent to obstruct that investigation. Finally, evidence of the explosion at UBB is clearly relevant to the narrative framework of these charges. When making a decision, the jury would be puzzled by the gaps in the story if evidence of the explosion at UBB were excluded. Ultimately, if the Court were to exclude evidence of the explosion at UBB, this would unfairly distort the case.

Further, the judge said:

… The probative value of the evidence of the explosion at UBB is not substantially outweighed by the danger for unfair prejudice … the evidence of the explosion at UBB is necessary to establish certain elements of the crimes alleged. Thus, this evidence is extremely probative.

But, she added:

The Court does, however, warn the Government that unnecessary, graphic and irrelevant details of the UBB explosion will not be admitted into evidence.

We haven’t yet seen the response from Assistant U.S. Attorney Steve Ruby to the Blankenship team’s motion about Upper Big Branch evidence. But certainly it’s easy to see some similarities here with the Stover case. For example, in order to show that Blankenship lied to securities regulators and investors in statements made about safety issues after the mine explosion, the government will need to explain to jurors the timeline involved. The grand jury indictment against Blankenship’s only real mention of the mine disaster is a sentence that notes that allegedly false statements were made “following a major fatal explosion at UBB on April 5, 2010.”

How can jurors possibly understand these securities charges — or decide if they are legitimate — without being given some background and context on what prompted the statements in the first place? It’s not hard to imagine Judge Berger issuing a ruling in Blankenship’s case similar to the one she issued in Stover’s trial. We’ll have to wait and see.

Finally, what if somehow a lot of evidence ends up coming into the Blankenship case — whether because the judge initially allows it or because one or the other side opens the door to it — about exactly what happened at Upper Big Branch? It seems clear that this sort of a trial development would bring potential risks for both sides.

From the government’s point of view, more mentions of mine explosions and those 29 dead miners would seem to be a winning approach. Actually getting testimony or other evidence about the disaster and its victims before the jury would certainly seem to help the prosecutors get a guilty verdict.

But if things were to turn into the proverbial “battle of experts” over what caused the mine explosion, it could become a little more tricky.

Sure, multiple investigations (see here, here, here and here) have all generally agreed on what happened at UBB. As I’ve written before:

Two government and two independent investigations blamed the Upper Big Branch deaths on a pattern by Massey of violating federal standards concerning mine ventilation and the control of highly explosive coal dust, both of which set the stage for a small methane ignition to turn into a huge coal-dust-fueled explosion.

Those investigations all generally agreed that the explosion erupted when the mine’s longwall-machine shearer cut into a piece of sandstone. The resulting spark, investigators said, ignited a pocket of methane gas. Investigators concluded that worn-out bits on the cutting shearer contributed to the explosion, while missing water sprays allowed the ignition to spread. Illegal levels of coal dust had not been cleaned up, providing fuel that sent the blast ricocheting in multiple directions throughout more than two miles of underground tunnels, investigators said.

The problem for prosecutors would be how to get evidence about those kinds of findings in front of the jury without risk of too much damage on what would undoubtedly be brutal cross-examination.

It seems unlikely that the U.S. Attorney’s office will turn to the federal Mine Safety and Health Administration for this kind of testimony. MSHA witnesses didn’t do very well when being questions about similar issues in a case over the Jim Walter No. 5 Mine Disaster in Alabama. And already in previous UBB cases there have been questions raised about MSHA’s own performance (see here and here).  Prosecutors aren’t going to turn to Blankenship’s old enemies at the United Mine Workers for expertise in this trial, and using anyone from the McAteer team as an expert witness might present its own set of challenges regarding cross-examination about issues that don’t have anything to do with the case.

So Steve Ruby would have to find another expert who can walk the jury through how you keep coal mines from blowing up. In some ways, that’s really not all that complicated — ventilate the mine, clean up the coal dust, etc. — but there’s always the possibility that cross-examination and the defense’s own witnesses can put the jury to sleep.

From the defense standpoint, as mentioned previously, it seems like the less jury hears about 29 coal miners getting killed, the better. If they somehow open the door too widely on this, the next thing you know, the prosecutors might be introducing reports about exactly how the miners died, to try to help make the case about how the illegal buildup of coal dust — not an uncontrollable influx of natural gas — was behind the explosion.

Which takes us right back to where we started, which is this passage from the defense team’s recent legal filing:

… Evidence from the government regarding causation and responsibility for the UBB explosion would be met by strong evidence from Mr. Blankenship rebutting the government’s theories, leading to confusion about the actual issues and to undue delay – a satellite mini-trial about the cause of the UBB explosion and who is responsible for it. If the cause of the explosion is at issue in the trial, the defense is ready to present substantial, compelling evidence that the incident was actually a natural disaster.

In his self-funded court of public opinion, Don Blankenship has certainly tried hard to make that point.  But now that it’s all in a court of law, Blankenship’s attorneys don’t really seem to want any part of that debate.