Defense lawyers for Don Blankenship have filed a response to the government’s continued effort to keep jurors in the former Massey CEO’s criminal trial from being shown a video of a Massey safety meeting.
In their new filing, Blankenship’s attorneys say:
Defendant Donald L. Blankenship respectfully opposes the motion of the United States to exclude portions of the video recording of the meeting at Scott High School on August 1, 2009. The grounds for excluding the excerpts are similar to those which the government urged to exclude the larger tape of the four-and-a-half hour meeting. The government argued that the tape of the meeting was inadmissible because it contained hearsay and was puffery, among other reasons. As an initial matter, the excerpts are directives (i.e., directions to the mine management at Upper Big Branch and Massey’s other mines) to eliminate hazards and to cease production to do so and, therefore, do not constitute hearsay, as they are not assertions offered for the truth of the matter asserted. Additionally, the hearsay rule no more precludes the video than it does testimony of what people did and said at the meeting. The fact of the meeting and the things said there are material to Mr. Blankenship’s defense. Evidence which shows intent, motive, or state of mind, as all of it does, is not hearsay.
The argument that the meeting is puffery or that it was staged, while neither of which is true, go only to the weight, not the admissibility of the video. Indeed, while the government has repeatedly attempted to characterize the Hazard Elimination Program Kick-Off Meeting as a sham – argument that by its very nature opens the door to allowing the jury to actually see what occurred at the meeting – the jury must be allowed to see the evidence that contradicts that assertion and to weigh the evidence itself to decide whether the “puffery” and “opinions” actually represent the true intent, motive, and state of mind behind the Hazard Elimination Program efforts.