Today the government filed a reply to Blankenship’s defense attorneys motion to exclude three audio recordings that have yet to be introduced in the trial.

Last week the defense filed an 18-page motion to exclude what they argued would be “incomplete or irrelevant” audio recordings.

They include one (recording 589) in which Blankenship criticizes Performance Coal Co. President Chris Blanchard for the way he is holding the telephone and another (recording 1260) in which Blankenship tells Blanchard to follow his instructions.

A third recording (recording 1535A) the defense is objecting to came from a conference call between Blankenship, Blanchard and then-Massey vice president Chris Adkins. The call dealt with employee benefits issues.

In their reply to the defense’s motion, the government argues part of Blankenship’s defense includes an argument that the Massey CEO was too far removed from the daily operations of the Upper Big Branch Mine to have any knowledge of the or complicity in the crimes he is charged.

The government cites the defense’s opening statement which said Blankenship had never been to the Upper Big Branch mine and that Massey was so massive that he couldn’t have known the details about what was happening at the Raleigh County mine.

“The detail and involvement illustrated by these recorded conversations tend to show otherwise,” the government says in the filing.

Turning to the three specific recordings, the government expressed willingness to play the entire 15-minutes of recording 589.

The excerpts of Recording 589 that the United States originally intended to use at trial only include the portions of the conversations regarding Defendant’s instruction to Blanchard on his telephone mannerisms. However, the United States is willing to play the entire recording if Defendant will stipulate to its authenticity.

On recording 1260 – the one in which Blankenship tells Blanchard to follow his instructions – the government says the defense is hoping to include a portion that could make him look better.

His excerpt is an attempt to include a passage that is, at best, mildly favorable to him. The ommission of this passage in no way changes the meaning of the exceprt the United States will seek to admit, and Defendant does not argue as much.

Because of the fact that the defense is not arguing that the omissions from the recording will mislead the jury, the government believes the Court should decline the defense’s motion to include the left-out portions of recording 1260.

And finally, recording 1535A.

Here’s what the government says:

“In Recording No. 1535A, Defendant instructs Blanchard to carry out Defendant’s orders to Blanchard’s subordinates, but to do it in a way that conveys Blanchard’s authority over, belief in, and enthusiasm for the orders. This conversation exemplifies the chain of command at Massey and UBB. To the extent Blanchard was giving orders to those below him at UBB, he was doing so at the explicit and detailed direction of Defendant. This conversation includes a discussion of employee benefits, but the relevance of the conversation is the hierarchy it demonstrates. Defendant has suggested that any orders to UBB employees to bypass safety measures or implications that production was prioritized over safety came from Blanchard as opposed to Defendant. This conversation shows that Blanchard had very little flexibility in the orders he gave, and that he was required by Defendant to give orders in a way conveyed to his employees that the orders were his ideas, when in fact they were specific instructions from Defendant. This conversation is also not unfairly prejudicial under Rule 403. It is probative of Defendant’s intent, control, and knowledge.”