Coal Tattoo

Judge Berger’s in limine rulings

This post is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

Today the Gazette-Mail purchased a partial transcript of the October 6 closed-door meeting between U.S. District Judge Irene Berger and the prosecuting and defense attorneys.

In this meeting, Berger made her rulings on the in limine motions.

Blankenship’s lawyers filed 16 separate motions. Prosecutors filed one motion that outlined 11 types of material they want Berger to block from the trial.

Because the media was locked out of the meeting, exactly how Berger ruled on each in limine motion was unclear until today.

You can read the transcript here.

I’ve been slowly going through the document – so here’s a summary I have done so far.

Document: 304 – The defense’s motion to exclude evidence, testimony, or arguments related to public statements made by Blankenship defendant after the Upper Big Branch Mine explosion.

Ruling: Denied

Document: 305 – The defense’s motion to exclude evidence, testimony or arguments relating to a 2005 memo called “Running Coal.”

Ruling: Holding off on ruling until it seen how the memos are going to be used

Document: 307 – The defense’s motion to exclude evidence, testimony or arguments related to the effect on Massey’s financial performance and on investors of past violations of federal mine safety and health standards.

Ruling: Denied

Document: 308 – The defense’s motion to exclude evidence, testimony, arguments related to Massey’s September 2010 letter to stakeholders.

Ruling: Denied

Document: 309 – The defense’s motion to exclude evidence, testimony, or arguments related to July 2, 2010 SEC staff comment letter and Massey’s response.

Ruling: Denied

Document: 310 – The defense’s motion for preliminary determination of the admissibility of purported co-conspirator statements and acts under Rule 104.

Ruling: Holding off on a decision

Document: 311 – The defense’s motion to exclude evidence, testimony or arguments related to citations issued at the Upper Big Branch Mine.

Ruling: Denied

Document: 312 – The defense’s motion to exclude evidence about its compensation and stock holdings.

Ruling: Unclear

Document: 314 – The defense’s motion to exclude testimony of David Hughart.

Ruling: Holding off on ruling until it seen how the memos are going to be used

Document: 315 – The defense’s motion to exclude evidence, testimony, or arguments regarding alleged omission of material facts.

Ruling: Denied

Document: 316 – The defense’s motion to exclude from trial the Mine Act prohibition on advance notice of inspections.

Ruling: Denied

Document 317 – The defense’s motion to exclude argument that violation reduction at Upper Big Branch demonstrated authorization of violations

Ruling: Denied

Document 318 – The defense’s motion to exclude proposed opinion testimony of Tracy L. Stumbo.

Ruling: Partially granted

Here’s what Berger said:

“After careful consideration of your submissions, I will listen to the testimony regarding his qualifications and his methodology and whether the same is generally accepted in his field to determine the admissibility of his opinions. However, assuming that expert opinions are relevant and admissible, I find that his proffered opinions regarding, quote, mutual understanding should be excluded. The opinion almost necessarily comments on the existence of a conspiracy and, as such, without the specific language of conspiracy, amounts to a legal conclusion. I find that he should not be permitted to testify to the mutual understanding.”

She continued:

“Mutual understanding is often used synonymously with conspiracy, and so I find that it’s not appropriate to allow the witness to testify in those terms.”

Document: 319 – The defense’s motion to exclude proposed opinion testimony of Frank Torchio.

Ruling: Partially granted

Here’s what Judge Berger said:

The defendant bases this motion on the nature of the opinions as well as the methodology used. After careful consideration of the motion and a response, I grant the motion with respect to the substance of those proffered opinions which specifically reference the term “materiality,” the materiality of the statements at issue in this case.

I find no fault with Torchio’s methodology as presented by the Government in its response, and, therefore, he can, as a witness, give testimony and opinion as a result of his training, knowledge, and education that does not invade the province of the jury, including legal conclusions, and that does not specifically indicate the statements at issue here are material. In making the ruling that he should not be able to testify that the statements made here are material, this Court has given great consideration to the fact that this is a criminal case and that the materiality is a legal element of the charged offense for the jury to determine.”

That is all I have done for now. I am still reading the document and will have an update on the government’s in limine motions.