There’s a new filing tonight from Don Blankenship’s legal defense team, informing prosecutors and U.S. District Judge Irene Berger that they have their own collection of telephone call recordings they want to play for the jury.
Here’s what the defense lawyers have to say:
Donald L. Blankenship, through counsel, hereby provides notice of his intent to introduce into evidence audio recordings of telephone calls he made as CEO of Massey Energy Company during the indictment period. In these calls, Mr. Blankenship, among other things, (1) gave instructions regarding improving safety and reducing violations at Massey mines and (2) received notice of various ongoing efforts at the company in these areas. The defense will offer these audio recordings to prove Mr. Blankenship’s state of mind with respect to each count of the superseding indictment. They will not be offered to show the truth of the facts asserted in the recordings.
A few examples of the calls, as described by the defense:
DB1589 (Mar. 25, 2009): In this recording, Mr. Blankenship directs Massey COO Chris Adkins to contact a Massey resource group president for the purpose of directing that individual to “stop whatever” he was doing, to “define the violations” cited at one of his mines during the previous three months, to develop a “plan … to go to zero violations,” and to get the plan to Mr. Blankenship “in the next three hours or something like that,” and not “next week” or “next month.” Mr. Blankenship further directs Mr. Adkins to communicate to all Massey resource group presidents that they need to
DB1302 (June 29, 2009): This recording involves a conversation between Mr. Blankenship and Stanley Suboleski, the member of Massey’s Board of Directors who met with Bill Ross in June of 2009 at Mr. Blankenship’s direction. The conversation includes discussion of Mr. Suboleski’s meeting with Mr. Ross and of Government Exhibit No. 96, which has been admitted into evidence. Among other things, Mr. Blankenship asks: “Who else has an S1 manual, a P2 manual, and M3 manual and the tangible things beyond the law that we have?” Mr. Suboleski responds: “I don’t know of anybody that goes as far as we do, Don. You know, the – in the past I would have said the steel companies do better on the S1 type thing. Today I’m not sure that anybody does.”
DB0746A (Jan. 7, 2010), DB0746B (Jan. 7, 2010) and DB0687 (Jan. 24, 2010): These recordings involve conversations regarding rock dust citations and orders issued at a Massy mine. Among other things, Mr. Blankenship inquires why additional trickle dusters had not been purchased for the mine and advises that he would have “had 20 of these rock dusters for every 500 feet” in the mine. Mr. Blankenship directs Mr. Adkins to advise the resource group president in charge of the mine that Mr. Blankenship wants him to “cover it up [with rock dust] like it’s a snowstorm.”
Along with their notice, defense lawyers filed this transcript of the calls they want to play for the jury.
In a footnote of their notice, the defense says:
Although the Court granted the government’s pre-trial motion to exclude any recordings offered by the defense, the Court did not consider the particular recordings at issue here. Moreover, during the trial testimony of Ms. [Sandra] Davis, the Court subsequently determined that contemporaneous statements of Mr. Blankenship offered by the defense were admissible.
They also argue:
Just like the handwritten notes and other similar evidence previously admitted by the Court, these audio recordings are relevant, admissible, and highly exculpatory. First, these recorded telephone calls are, by definition, not hearsay, as they will not be offered to prove the truth of the matters asserted therein.
… Second, even if the audiotapes could be considered hearsay, they are admissible under the state-of-mind exception to the hearsay rule because they show that, at the time they were made, Mr. Blankenship did not intend to violate the law and believed that Massey Energy strove to comply with mine-safety regulations.