Coal Tattoo

Two new filings by Blankenship defense team

This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

Defense attorneys made two new court filings in the criminal trial of Don Blankenship today.

The first is a motion by the defense to allow them to use a video recording of a meeting at Scott High School on August 1, 2009. The subject of the four-and-a-half hour meeting was Massey Energy’s hazard elimination program.

The defense first tried to admit the video into evidence but their efforts were blocked by U.S. District Judge Irene Berger when she made a ruling on Oct. 28.

“It’s riddle with statements of opinion and hearsay that are inadmissible,” Berger said at the time. “There is a lot of what I would generally call puffery.”

Following Berger’s ruling, earlier this week (Nov. 2) the defense attempted to edit the video down and remove certain aspects of the video in order to allow it to be admitted into evidence.

In their motion, the defense said:

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.

For the second time, Berger ruled against allowing the edited version of the video to be used as evidence.

In their latest motion regarding the video, which was filed today, the defense points to testimony from former U.S Mine Safety and Health Administration and Massey Energy ventilation expert Bill Ross.

From the defense’s motion:

Now that Bill Ross has testified – and documents have been admitted opining – that a new approach to safety compliance was necessary, video of the meeting that initiated such a new approach must be admitted. Likewise, now that Bill Ross has testified – and documents have been admitted indicating – that unnamed persons took the approach of “run, run, run, until you get caught,” video of the meeting showing the sincerity and intensity with which Massey executive management rejected that approach and instructed its members to do the exact opposite must be admitted. And now that the government has attempted to show that Mr. Ross’s opinions were secreted away, video of the meeting shows that they were not.

The defense further points to the emotional moments of Ross’s testimony as a reason to show the video:

Moreover, on two separate occasions in his direct testimony (including during testimony about Government Exhibit 191), Mr. Ross halted his testimony, became visibly emotional, and wiped tears from eyes, as the courtroom remained silent with all attention fixed on him. In response, family members of the deceased miners became emotional as well, in full sight of the jury. The Court having denied the defense request for a mistrial based on this, which the defense hereby renews, the video is necessary evidence.

To read the defense’s entire motion regarding the video, click here.

In addition to their motion, the defense also included an attendance sheet of all those who were at the hazard elimination program meeting, which you can view here.

The defense also provided a 93-page transcript of the entire meeting, which you can read here.

The second motion filed by the defense today is an attempt to compel MSHA to comply with a subpoena issued by the court on Sept. 9 and to force the government to hand over all material related to that subpoena.

The defense explains their motion:

The defense makes this motion because it recently learned of the destruction of documents regarding the Upper Big Branch Mine (“UBB”) by MSHA employee Joseph Mackowiak.

Along with their latest motion, the defense included exhibits of delcarations from Ross, Independence Coal Company vice president Phillip Ellis and Joseph Mackowiak, who worked as MSHA’s ventilation group supervisor from June 2008 to June 2011.

In his statement, Ellis said Doris Chambers, an MSHA employee, had told him that Mackowiak “had thrown away a number of important government documents in a suspicious manner.”

In his statement, Ross backed up Ellis’s remarks:

“During one such trip to Mt. Hope to meet Mr. Mackowiak, Mr. Ellis and I had an opportunity to speak with Mrs. Chambers, my former secretary…This inquiry prompted Mrs. Chambers to say that Mr. Mackowiak had destroyed a significant amount of documents within his control at MSHA. Mrs. Chambers specifically recalled Mr. Mackowiak walking out of the Mt. Hope facility carrying trash bags filled with documents. Mrs. Chambers made it clear that Mr. Mackowiak’s document destruction and actions from the file room and map room were questionable, at best. She told me that a lot of the documents we saved were gone.”

In his statement, Mackowiak says the allegations made by Ross and Ellis about him destroying documents are wrong:

“I declare that I have never destroyed nor transported documents from the District 4 office in trash bags for disposal related to the Performance Coal UBB mine.”

Things are further complicated by Chambers testimony:

“At no time did I ever observe or have knowledge that Mr. Mackowiak removed, destroyed, or transported “trash bags filled with documents” and throw “away a number of important government documents in a suspicious manner” from MSHA’s District 4 office.”

To read the defense’s motion to compel the government and MSHA to provide them with the records obtained from the Sept. 9 subpoena, click here.