Photo by Joel Ebert

This morning’s session of the Don Blankenship trial ended with Assistant U.S. Attorney Steve Ruby completing his re-direct examination of former Massey Energy ventilation expert Bill Ross.

Ruby closed the questioning by taking Ross back to Government’s Exhibit 191, a memo that Ross wrote in late January of 2010 to then-Massey lawyer Stephanie Ojeda.  He asked Ross about some of the statements on the last page:

It appears that nothing has changed or is going to change until WE change!

The company wasn’t serious as to doing the right thing!

When Ross read each statement, Ruby asked Ross if his memo was written before or after Ross met with Blankenship about his safety concerns.  Each time, Ross said, “That was after the meeting.”

After Ruby said he had no further questions, U.S. District Judge Irene Berger asked lead defense lawyer Bill Taylor if he had a motion. Taylor indicated he did, and asked if he should approach for a private bench conference.  While the jury sat in its box and Ross on the witness stand, the judge heard from both lawyers for about about 25 minutes. Then, she dismissed the jury for lunch, but kept the lawyers in the room and instructed Ross to leave the courtroom.

Don Blankenship leaves the courthouse on Friday at the lunch break with defense attorneys James Walls, left, and Eric Delinksy. Photo by Joel Ebert.

The judge then revealed that the private bench conference was to hear a motion from Taylor seeking to re-cross examine Ross. She said that she had heard from the lawyers at the bench, with the courtroom’s “white noise” machine running, so that the neither jurors nor Ross could hear what the lawyers were saying. She did not explain why she didn’t simply dismiss the jury for lunch early and send Ross out of the room, and allow the public and the press to hear the lawyers’ arguments.

Judge Berger did not then hear legal arguments in public, but simply summarized what Taylor had asked for at the bench. She said that he wanted to re-cross Ross about a government exhibit (one not yet posted publicly) that was an MSHA document giving instructions to agency staff about processing belt-air ventilation applications (see this post for discussion of that part of Ruby’s re-direct examination).  The judge said Taylor also wanted to re-cross examine Ross about an air shaft that was proposed for the Upper Big Branch Mine, but rejected by Blankenship.

The judge denied Taylor’s requests, saying that they didn’t amount to actually asking to re-cross about “new material” that came up on re-direct that the defense hadn’t previously been able to ask Ross about.

“I find no new material,” the judge said. “Both of these areas have been explored both by the government and the defendant.”

But … Ross may not be done on the stand yet. Taylor indicated that he may call Ross when the defense eventually begins presenting its own case.

Oh, and if you saw the part of this morning’s update about one of the jurors — “Mr. Rose” — who was called to the bench for a private discussion with Judge Berger … the judge has not publicly disclosed what that was about, but that juror was back in the box for the later part of the morning testimony.

Trial resumes at 1:40 p.m.