Coal Tattoo

What we can learn from the Blankenship appeal

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Mine Explosion Congress

 

This morning, when I looked a the calendar to see what the day ahead would be like, I saw the date: Jan. 19. I was reminded of a Jan. 19 more than a decade ago, when the day took a terrible turn and two men working at one of Don Blankenship’s coal mines ended up dead.  I’m sure it’s another hard day for the families of Don Bragg and Elvis Hatfield. The calendar can be like that for mining families. The winter months especially are way too full of dates that mark one awful disaster or another.

Then shortly after I got to the newsroom, an email alert showed up from the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, noting a new document filed in the Blankenship appeal:

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:14-cr-00244-1.

I clicked, called up the opinion, and hurried to scroll down to the key passage:

Defendant Donald Blankenship (“Defendant”), former chairman and chief executive officer of Massey Energy Company (“Massey”), makes four arguments related to his conviction for conspiring to violate federal mine safety laws and regulations. After careful review, we conclude the district court committed no reversible error. Accordingly, we affirm.

We’ve got a lot of changes coming our way in this country. Come tomorrow, Donald Trump will be sworn in as our President. Already in West Virginia, we’ve seen what is likely a similarly significant change. On Monday, Jim Justice stood at the Capitol and took the oath as our new governor.

As a candidate, President-elect Trump certainly talked a lot about doing away with government regulations, especially those he says were killing the coal industry. Governor Justice has promised to fight federal environmental regulations that get in the way of his industry, and says under his leadership. West Virginia will mine more coal than ever before.

There’s obviously a lot of evidence that suggests the coal revival that’s being promised is very unlikely to happen. But today’s events, and the history of what happened today back in 2006, should make us think about this from another perspective.

Continue reading…

Read about the Don Blankenship Appeal

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Former Massey Energy CEO Don Blankenship and his lawyers enter the Robert C. Byrd U.S. Courthouse on Tuesday morning. Photo by Joel Ebert.

 

We’ve got a story online from Sunday’s Gazette-Mail that previews this week’s oral argument on former Massey Energy CEO Don Blankenship’s appeal of his criminal conviction. We’ve also got a handy sidebar that explains the issues in the appeal and provides some information about how the process works and what might come next in the case.

For those who want to dive in more, here’s a searchable collection of the court filings in Blankenship’s appeal and some related documents:

Blankenship’s letter from a Taft, California, jail

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rally12_i0909072049581

 

Gazette-Mail file photo by Chip Ellis

Well, I guess we all knew that something like this was coming sooner or later. Don Blankenship has seldom been one to keep quiet; well, except for that time he refused to answer questions from investigators after the Upper Big Branch Mine Disaster … or that time he declined to take the stand in his own defense at his federal court criminal trial.

But Kris Maher over at the Wall Street Journal had the story this morning:

Former Massey Energy CEO Don Blankenship, who is serving a one-year sentence in federal prison for violating mine safety laws, is issuing a highly unusual personal defense this week, using a 67-page booklet to declare that he is an “American Political Prisoner.”

“The story is a little complex, and telling it from prison without a computer and without much documentation has not been easy,” Mr. Blankenship wrote. “But it is a story that Americans need to know.”

And indeed, there is a press release, in the form of this blog post — dateline “Taft, California,” where Blankenship is serving his prison sentence, as well as a .pdf file of Blankenship’s booklet now available through his website. I’ve downloaded a copy of the booklet and posted it here for safekeeping. Blankenship says he’s going to send the booklet to 250,000 people — he doesn’t say who — and explains his reasons for doing so:

This booklet is the right thing to do. It is the right thing to do because all Americans deserve a fair trial, and not one like I had. It is right to do this booklet because coal miner safety is more import-ant than political correctness. Lies about accidents and improper prosecutions are serious matters, as they prevent worker safety improvements and deprive people of their basic human rights.

We’ve seen this movie — literally — before. For example, the booklet runs through Blankenship’s theory that the Upper Big Branch disaster was caused not by poor safety practices at Massey under his watch, but by an uncontrollable flood of natural gas into the underground mine. Investigations by the U.S. Mine Safety and Health Administration, the Governors Independent Investigation Panel (the McAteer team), the state Office of Miners Health, Safety and Training, and the United Mine Workers of America all reached conclusions contrary to Blankenship’s theory.

The other thing that Blankenship goes off about is his belief that the media has ignored (covered up, I think is his term) allegations about MSHA’s role in what happened at UBB. It’s hard to buy into his part of his theory, given that his major concerns about MSHA — inaction about potential methane leaks from the look of UBB, perhaps poorly planned demands for changes in the mine’s ventilation system, and the potential that not all records about MSHA’s involvement at UBB have been made public — were all covered fairly extensively by Blankenship’s favorite news outlet.

Continue reading…

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blankenshiphearingleaving

 

There’s an interesting op-ed in The New York Times today by civil rights lawyer and author Chase Madar about the use of criminal prosecutions in major public safety disasters. It mentions the Upper Big Branch Mine explosion, and the successful prosecution of former Massey CEO Don Blankenship:

The latest criminal charges of public officials in the contamination of the Flint, Mich., water supply seem righteous. After so much government ineptitude with such hideous consequences — tens of thousands of Flint residents poisoned; elevated blood lead levels in nearly 5 percent of the city’s children, many with possibly irreversible brain damage — surely these criminal charges will bring, at long last, justice for Flint.

Not really. Though these sorts of charges fulfill an emotional need for retribution and are of great benefit to district attorneys on the make, they are seldom more than a mediagenic booby prize. Prosecutorial responses fill the void left when health and safety regulations succumb to corporate and political pressure.

Take the collapse at the Upper Big Branch mine in West Virginia that killed 29 miners in 2010. Flouting safety regulations was an integral part of the corporate culture of the mine’s owner, Massey Energy, and last year its chief executive, Donald L. Blankenship, was convicted of a misdemeanor carrying a one-year sentence. Although some portrayed this as a blow for social justice, it’s difficult to see how it had much impact on mine safety.

Far more significant was the West Virginia Legislature’s passage last year of the Creating Coal Jobs and Safety Act, the first statutory loosening of mine safety standards in state history. While on its deregulatory binge last year, the state almost entirely rolled back aboveground chemical-tank safety standards enacted in response to the Elk River contamination disaster of 2014 – which made the water of 300,000 people undrinkable.

The general point is that criminal prosecutions won’t stop mine disasters, or water pollution, or food contamination — and that the media give far too much attention to criminal trials in these incidents, at the expense of coverage of the many failings of our civil and administrative regulatory systems that are supposed to protect the public. Attorney Madar opines:

Our prosecutorial response tends to be reactive. Volkswagen will pay at least $15 billion for cheating on emissions tests on its diesel vehicles, and may face criminal charges. The tiny research center that caught the discrepancy is now facing cuts to its $1.5 million annual budget.

A well-enforced regulatory regime lacks the TV-movie narrative arc of a criminal trial. But none of these crimes could have been committed if the government had been doing its job properly.

OK. Now one glaring problem with this whole line of thinking is that, while telling readers that these prosecutions are little more than a “mediagenic booby prize”  that we mere news reporters fall for every time, Attorney Madar seems to be getting his information about the glaring holes in regulatory systems that aren’t explained to the public from — that’s right, the mainstream media.

Continue reading…

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Mine Explosion Congress

 

In case you missed it, we posted a story very late last night based on a quick glimpse through the federal government’s response brief, filed in Massey Energy CEO Don Blankenship’s appeal, which is pending at the 4th U.S. Circuit Court of Appeals:

Federal prosecutors on Monday urged an appeals court to uphold last year’s landmark conviction of former Massey Energy CEO Don Blankenship for a mine safety conspiracy.

“The only thing novel about the charge against defendant is that, in this case, it was pursued against the CEO of a major mining company, instead of against low-ranking miners,” Assistant U.S. Attorney Steve Ruby wrote in a brief filed with the 4th U.S. Circuit Court of Appeals.

Late Monday night, Ruby filed a 97-page legal brief with the 4th Circuit, spelling out the federal government’s response to Blankenship’s appeal of his conviction.

“Defendant may believe himself to be more important than those past defendants, and perhaps though that his position insulated him from legal scrutiny,” Ruby wrote. “But there is nothing new about the legal authorities that were brought to bear in his prosecution.”

You can read the brief for yourself here (and you can read Blankenship’s appeal brief here).

Here’s another interesting quote from Ruby’s brief:

Defendant suggests that because 29 coal miners were killed at UBB, he must have been convicted because of the emotion and public outcry that the UBB explosion aroused, not because of his own rampant law-breaking.  Defendant raised this theory in a pretrial motion that the trial court rejected and whose denial, again, he does not appeal. That motion detailed his intricate fantasies that he was prosecuted because of an internet video he released touting his theory of the UBB explosion, or because of a vaguely described political conspiracy to frame him for the explosion. Id. The trial court found not a shred of evidence to support any of it. Defendant may be correct that not every mine where workers die is the scene of law-breaking, but the  evidence showed that this one was, and that he was behind it—and a jury of his peers fairly convicted him of his crime.

Oral argument in the appeal is set for Oct. 26 in Richmond, Virginia.

Blankenship: Waiting on the 4th Circuit

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Mine Explosion

Last evening, the defense team for former Massey Energy CEO Don Blankenship filed the last of its arguments in its effort to keep Blankenship from having to begin serving his prison sentence while an appeal of his conviction is being considered.

I’ve posted a copy of the defense’s latest filing with the 4th U.S. Circuit Court of Appeals here. Blankenship’s original argument to the 4th Circuit that he be allowed to stay free on $1 million bond pending his appeal is here, and the government’s response is here.

The defense’s new filing from last night argues, as did their original brief, that Blankenship’s appeal of his conviction raises at least four significant issues:

— That U.S. District Judge Irene Berger gave the jury an incorrect definition of what constitutes a “willful violation” under federal mine safety laws.

— That the indictment against Blankenship was legally insufficient because it alleged safety violations without identifying the safety standards Blankenship conspired to violate.

— That Judge Berger refused to allow the defense a second shot at cross-examining former Massey official Chris Blanchard.

— That the judge wrongly gave the jurors a definition of “reasonable doubt.”

For the 4th Circuit to stay Blankenship’s sentence pending his full appeal, the court has to be convinced that at least one of these issues raises a substantial question that, if decided in Blankenship’s favor, would warrant his conviction or sentence being overturned. Without action by the 4th Circuit, Blankenship is scheduled to report to a so-far unidentified federal prison on May 12.

Prosecutors have made clear that bond release pending appeal is supposed to be the exception in the federal system, and they added this quote from an earlier case, which explains that just because some defendants can afford better lawyers to try to raise better questions on appeal doesn’t mean that bond release should be a given in those cases:

Federal district courts and judges in the courts of appeals know very well that the Congressional policy behind the Bail Reform Act and the subject of post-conviction and sentencing detention must be wisely administered, in order to protect the criminal justice system from the wrong perception that judges have two measuring sticks, one for regular criminals and a more lenient one for the white-collar defendant.

Prosecutors oppose Blankenship bail during appeal

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Mine Explosion Congress

Last night, prosecutors filed their brief with the 4th U.S. Circuit Court of Appeals to oppose former Massey Energy CEO Don Blankenship’s request to remain free on bail while appealing his conviction for conspiring to violate federal mine safety and health standards.

Here’s their summary of their argument:

A criminal defendant’s conviction and sentencing bring with them a strong presumption that he will serve his sentence without delay. By his motion to stay his sentence pending appeal, Defendant-Appellant Blankenship (“Defendant”) seeks to evade that presumption. He cites four supposed reversible errors and says his sentence should be delayed because of them. The record reveals, however, that the district court was exceptionally careful and thorough in resolving Defendant’s legal contentions both before trial and during it. Defendant’s appellate claims simply are weak, and success for him on appeal is improbable.

I’ve posted a copy of their brief here.

Also, here’s a copy of a 4th Circuit order that set the schedule for legal briefs in the appeal of Blankenship’s conviction.  Initial briefs are due May 31. Remember that, pending action by the 4th Circuit to stay his sentence, Blankenship is scheduled to report to prison on May 12.

New Goodwin Blankenship ad: ‘Take it back, Jim’

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Take it Back Jim from Goodwin for WV on Vimeo.

It looked like that maybe Democratic gubernatorial candidate Jim Justice was going to wisely steer clear of bringing the discussion in the campaign back around the the prosecution of Don Blankenship — or anything that would remind voters of Justice’s own mine safety problems, like his history of not paying his U.S. Mine Safety and Health Administration fines.

But rival candidate Booth Goodwin, who has U.S. Atttorney prosecuted Blankenship — isn’t going to let Justice just walk away from this one.

This morning, the Goodwin campaign unveiled a new ad (it’s being distributed on social media, at least) featuring Dr. Judy Jones Peterson, whose brother, Dean Jones, died at Blankenship’s Upper Big Branch Mine. Here’s what Dr. Peterson says:

I don’t really understand why Mr. Justice would step out against the integrity of this incredible prosecution team. He of all people as a coal mining operator should understand the plight of coal miners, but I think unfortunately that the plight he understands best is the plight of Don Blankenship.

As some readers may recall, Dr. Peterson had previously asked that Jim Justice issue a public apology after Justice questioned the Blankenship prosecution.

Aside from the gubernatorial campaign, one potential impact of this strategy by the Goodwin team is to give more ammunition to Blankenship’s defense lawyers, who certainly want to make an issue in their appeal of the politics they say drove the entire prosecution in the first place. So far, this argument from Blankenship’s lawyers didn’t get any traction with U.S. District Judge Irene Berger or much sympathy from the jury — but who knows what might happen going forward.

On the other hand, it’s certainly different to hear a candidate for governor in West Virginia campaign on the fact that he prosecuted a coal company CEO for putting miner safety and health at risk.

I’ve asked the Justice campaign and the Blankenship defense team if they’d care to comment on this new ad, and will update readers if I hear back from them.

‘One of the good coal operators’

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Jim Justice

Last week, after U.S. District Judge Irene Berger sentenced Don Blankenship to the maximum penalty allowed by law — one year in jail and a $250,000 fine — Democratic gubernatorial candidate Jim Justice had little to say about the historic events of the day. His campaign spokesman issued this statement:

What’s important today are the feelings of the families who lost loved ones. I hope all of the families have the opportunity to be heard on whether or not they feel justice was served.

But it sounds like Justice has decided to add to those comments, at least according to this story from WOAY:

I think we spent an ungodly amount of money within our state to probably keep Booth Goodwin in the limelight and end up with a misdemeanor charge. If that’s all we are going to end up with, why did we spend that much money to do that?

This comes a day after Justice’s gubernatorial campaign was touting a new campaign ad in which United Mine Workers of America President Cecil Roberts — in what seemed like quite an awkward phrase — called Justice “one of the good coal operators.”

Continue reading…

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UBBPortal

It is hard to imagine what the families of those 29 miners have been through. Think about it. Your husband or son or brother or father is snatched away — blown away really — stolen from your family in a violent underground explosion.

But it’s not like they just didn’t come home from work one day. You got a terrifying phone call. The phone call mining families have come to fear, but somehow always know could come. And then you spent a couple days in the ritual of waiting and hoping and praying that maybe, just maybe he somehow survived.

But even when that reality hits you, it’s not like you got to just bury him and grieve and try to find a way to live. There were meetings, and hearings and lawsuits. And all of the people from the media — maybe they’re just trying to do their job, but after a while having a microphone in your face gets kind of old.

And then, the CEO of the company who ran the mine that blew up got indicted. Maybe there would be justice, you thought. But then there was the trial. And it seemed like it would never end. And it was confusing — What were all the lawyers talking about up at the judge’s bench? What do all of these objections mean? Are those jurors even paying any attention to any of this?

Finally, though, there was a verdict. But even then — even then — everybody keeps talking about how none of this was really about what happened to him. What happened to all of them. It was about something else, not about what happened to those 29 miners.

Just imagine.

Today is one of those days on the coalfield calendar. Another mine disaster anniversary. There are so many of them.  Two weeks ago, it was Centralia, Illinois. March 25, 1947, 111 miners killed. Later this month, it’s Dola No. 1 in Harrison County. April 25, 1963, 22 dead. Then Federal No. 3, Everettville, W.Va., 97 miners.

Today, lots of people will talk about how they remember, how they’re praying for the families. How they’ll never forget.

I’m sure that’s all true. People do remember, and they do pray. Certainly, those families will never forget. The pain that folks like Gary and Patty Quarles must feel. I can’t imagine. They lost their son at Upper Big Branch. That never goes away. They won’t forget what happened.

But what about the rest of us? How can it be that today, of all days, there aren’t hundreds of people over in front of the Robert C. Byrd United States Courthouse for a protest or a vigil or just a quiet remembrance? Where are all those friends who care so much about our state’s coal miners now? What about the people who had a chance to speak up before all those miners died, and didn’t? What about all of us, who have a chance now to speak up, to do whatever needs to be done to make sure it doesn’t happen again?

Because while today is a day like many others on the coalfield calendar, tomorrow is a quite different sort of day.

Mine Explosion CongressDuring a hearing scheduled to start at 10 a.m., U.S. District Judge Irene C. Berger will sentence that CEO who got indicted. Don Blankenship is really a legendary sort of figure in Appalachia and the coal industry. He was once one of the region’s most powerful men. He’s still one of its richest.

Tomorrow in court, Blankenship will stand convicted by a federal jury of conspiring to willfully violate mandatory mine safety and health standards. He faces up to a year in prison and a $250,000 fine.

It’s a remarkable thing. A historic development. The CEO of one of the region’s largest coal companies was convicted of a mine safety crime after the worst mining disaster in a generation.

It’s true that Blankenship, as the defense makes clear in its recent court filings,  wasn’t charged with blowing up the mine. He wasn’t convicted of causing that explosion, of killing those 29 men.

But what Assistant U.S. Attorney Steve Ruby outlined in his sentencing memo to Judge Berger is also true:

We have known for a very long time what makes coal mines explode. We have known for a very long time how to prevent it. And, sadly, we have known for a very long time that some mine operators will ignore these hard-learned lessons until the law compels them to take notice. The mine safety laws, it is said with good reason, are written in coal miners’ blood.

Defendant knew full well the awful risks, dramatized time and again in ghastly fashion over the years, that he was taking by flouting the mine safety laws at Upper Big Branch. There was no mystery about what poor ventilation meant: buildups of methane that would ignite with the slightest spark. Yet UBB’s miners were left pleading for air. There was no question what accumulations of coal dust meant if not properly treated: a powder keg 1,000 feet below the surface, primed to blow at any time. Yet black dust pervaded the mine, a calamity in the making.

There was nothing the least bit hidden or mysterious about the dangers of how Defendant chose to run UBB. They manifested themselves openly, obviously, to anyone with the most basic knowledge of coal mining, and certainly to Defendant.

Ruby goes on to remind us about Blankenship, and provide more important context:

How does one take the measure of such a crime? Defendant was the chief executive of one of America’s largest coal companies—a multibillion-dollar behemoth with its shares traded on the New York Stock Exchange, a fleet of private aircraft, luxurious board meetings at posh resorts around the country, and vast resources to support its mining operations. He had every opportunity to run UBB safely and legally. Instead, he actively conspired to break the laws that protect coal miners’ lives. Although already fabulously wealthy by the time of the criminal conspiracy of which he stands convicted, Defendant’s greed was such that he would willfully imperil his workers’ survival to further fatten his bank account.

After the trial, some of the Blankenship jurors said that they didn’t know that conspiracy to violate mine safety standards was a misdemeanor. If that’s true, they were just following instructions from the judge — juries aren’t supposed to know potential penalties. They’re just supposed to decide guilt or innocence.

Deciding a just sentence will be up to Judge Berger. And of course, Blankenship’s appeal will be up to the 4th U.S. Circuit Court of Appeals.

Rally For CoalDeciding the potential penalties for a criminal conspiracy that puts miners at risk, though … well, that’s up to Congress. And when was the last time you heard any of West Virginia’s elected officials — either on the state or federal level — talking about the need to change that law, to make mine safety crimes felonies, and provide more serious punishments?

In Washington, our elected officials are way too busy making noise about the U.S. Environmental Protection Agency to do anything about coal-mine safety.

And in Charleston, about the only thing on the mine safety agenda has been  the coal industry bill to weaken mine rescue team requirements and some other safety mandates. Hardly anyone in the Legislature would bother to even ask decent questions about that bill, and Gov. Earl Ray Tomblin doesn’t seem to have hesitated to sign it. None of that is surprising if you remember that Gov. Tomblin’s legislative response to Upper Big Branch was not to crack down on things like coal dust or methane monitoring, but to drug test miners.

It’s hard to escape the words of the late Sen. Robert C. Byrd after the Sago Mine Disaster a decade ago:

I have seen it all before.  First, the disaster. Then the weeping. Then the outrage. And we are all too familiar with what comes next. After a few weeks, when the cameras are gone, when the ink on the editorials has dried, everything returns to business as usual. The health and the safety of America’s coal miners, the men and women upon whom the nation depends so much, is once again forgotten until the next disaster.

Just this morning, both Sens. Joe Manchin and Shelley Moore Capito issued statements to mark the Upper Big Branch anniversary.

Sen. Manchin said:

Six years ago I grieved with the miners’ families, West Virginians and the entire nation during the hours and days after the unspeakable mining tragedy at Upper Big Branch. Today on this sad anniversary, our hearts weigh heavy as we remember the tragic Upper Big Branch Mine Disaster. Not a day goes by that I don’t think about the 29 brave West Virginia miners we lost that day, who went to work and never returned home to their loved ones. I stayed with the miners’ loved ones through moments of hope and despair in the days following the devastating tragedy and saw the unbreakable bonds of family.

No family or community should ever endure a preventable tragedy like the one at Upper Big Branch again and this day reminds us that we always must put safety first. The health and safety of our miners will always be my top priority and I have always been committed to ensuring our miners return home safely every night. Our hearts are still broken and Gayle and I join all West Virginians in honoring those miners’ memories as we grieve their loss and pray for continued strength for their families.”

Sen. Capito said:

It’s hard to believe that six years ago today 29 miners lost their lives in an explosion at the Upper Big Branch coal mine. For many West Virginians, especially those who lost loved ones and friends, the memories from that terrible day are still so fresh in our minds. My heart still aches for the families of the 29 miners whose lives were forever changed on April 5, 2010. As our state continues to heal from this tragedy, I will continue my efforts to protect our coal miners who selflessly put their lives at risk in order to provide for their families and power our state.

No real mention in there of anything either of them has done recently to try to get any sort of mine safety bill, especially one that would toughen the penalties for mine safety crimes, moving in Congress. Thinking about the families and praying for them is obviously worth doing. But trying to divorce the mine disaster completely from the Blankenship case — and especially divorcing the weak state of current criminal laws about mine safety violations — seems to be quite a disservice to the men who died and to their surviving families.

It’s like we feel compelled to remember the Upper Big Branch Mine Disaster, but it’s convenient to at the same time forget how it happened and what needs done to make sure it doesn’t happen again.

Blankenship seeks sentencing delay

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Blankenship Leaving Nov 23

There’s another new filing in the Don Blankenship criminal case — this one is a request from the defense to delay the sentencing, which is currently scheduled for April 6 in U.S. District Court in Charleston.

Basically, the defense says that they need more time to prepare to defend Blankenship against any restitution being sought against him. They want to either delay the sentencing for 90 days or to hold a separate hearing later, after the sentencing, to deal with any restitution requests.

Also, interestingly, the new court filing notes this regarding restitution requests:

On March 14, 2016, the defense learned from the U.S. Probation Office that it had received dozens of additional restitution claims in response to a mailing to potential victims. As of the filing of this motion, the defense has not seen those claims, although it expects to get access to them soon. The defense will need time to review and defend against those claims.

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Blankenship phone

Photo by Joel Ebert

Late yesterday, federal prosecutors filed their response to a motion by former Massey Energy CEO Don Blankenship to block efforts to force him to pay nearly $28 million in criminal restitution when he’s sentenced early next month. The response brief, which I’ve posted here, is mostly a legal argument over whether restitution applies to the crime Blankenship was convicted of committing.

But if you read it closely, you’ll also notice a pretty interesting little detail:

Defendant has refused to comply with his obligations under 18 U.S.C. § 3664, which requires him to submit to the probation officer a description of his financial resources, including a list of his assets.

Here’s what that section of federal law says:

Each defendant shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other information that the court requires relating to such other factors as the court deems appropriate.

In their new court filing, prosecutors say that Blankenship’s refusal to provide these financial details prevents the government “from making a complete argument for restitution” and also prevents the court “from conducting a meaningful and holistic review of restitution claims.” They go on:

Defendant should not be permitted to dictate the procedure of resolving restitution outside of § 3664 and Rule 32 of the Federal Rules of Criminal Procedure by demanding a response from the United States and adjudication from the Court on the restitution issues of his choosing, at his leisure.

Prosecutors say that a separate hearing, held within 90 days of Blankenship’s sentencing — currently scheduled for April 6 — is likely necessary to sort out the restitution issues.

So, is Don Blankenship ‘hardly a criminal’?

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Mine Explosion Congress

As the public tries to understand how six former Freedom Industries officials received a total of 60 days in jail for contaminating the drinking water for 300,000 people (see here and here for some of my efforts at explaining), some folks have naturally turned their attention to the upcoming sentencing in another of former U.S. Attorney Booth Goodwin’s major white-collar criminal cases

It’s hard not to wonder now whether former Massey Energy CEO Don Blankenship — to borrow a phrase that U.S. District Judge Thomas E. Johnston has now made famous — is “hardly a criminal.”

Like former Freedom officials Gary Southern, Dennis Farrell, William Tis, Charles Herzing, Michael Burdette and Robert Reynolds, Blankenship stands guilty of a crime that the law books list as a “misdemeanor.” A minor offense. A lesser crime (for more on whether crimes that put coal miner safety and health at risk deserve to be felonies, read this).

So when U.S. District Judge Irene Berger sentences Blankenship on April 6 — the day after the sixth anniversary of the Upper Big Branch Mine Disaster — will she let him off with what Blankenship’s critics (and certainly the families of the 29 miners who died at UBB) would consider a slap on the wrist?

Well, it’s true that Judge Berger’s hands are in some ways tied. Congress has made willfully violating a federal mine safety and health standard punishable by only up to one year in prison. And because Blankenship’s jury found him guilty only of conspiracy to willfully violate such standards, his conspiracy crime — normally a felony — is punishable with a maximum of one year in prison. Moreover, the Blankenship jury found him not guilty of the other, felony charges brought against him.

And while it’s true that Judge Berger has already sent four former Massey officials to prison for not insignificant periods of time, those four individuals (former Massey miner Thomas Harrah, UBB security chief Hughie Elbert Stover, UBB mine superintendent Gary May and former Massey unit president David Hughart) all were convicted by a jury or pleaded guilty to felony offenses.

Still, there some significant differences between the Blankenship and the Freedom cases, and they are worth understanding if you’re wondering how the next big sentencing in federal court here in Charleston might turn out. I’ve looked into this a little bit in the last day or so, and I asked Assistant U.S. Attorney Steve Ruby and defense lawyer Bill Taylor for their thoughts. I haven’t heard back from Mr. Taylor, but I’ll share some of AUSA Ruby’s comments below.

First, Blankenship was found guilty by the jury of conspiracy to willfully violate mandatory mine safety and health violations. This is quite different from the negligence and strict liability crimes involved in the water pollution cases against Freedom officials. As Ruby explained:

As you point out, Blankenship was convicted of conspiring to commit willful mine safety violations. The jury also found that his participation in the conspiracy was willful — a second level of willful misconduct, beyond the willfulness of the violations themselves. Willfulness is the highest standard of criminal intent that exists in the law. The difference between the willfulness of Blankenship’s actions, on the one hand, and the negligence and strict liability involved [in] the Freedom convictions, on the other, does distinguish the cases and would weigh in favor of a more severe sentence here.

Second, the federal government has already indicated in a court filing that it believes the advisory guideline sentencing range for Blankenship is 10 to 16 months (generally speaking, when a guidelines calculation produces a sentence which, like this one, ranges above the statutory maximum, that maximum becomes the guidelines range). Prosecutors indicated they believe there are factors that could push the guidelines range even higher, but they won’t yet explain their thinking on that. Ruby said:

We believe that the guidelines range ultimately could be some months higher than the 10- to 16-month range we discussed in our filing, but any difference would likely be a matter only of months, not years. We will decline at this time to discuss the specific enhancement that might increase the range. Given that the minimum range should be 10 to 16 months and the statutory maximum, unfortunately, is a year, we would not expect any difference to have much practical impact.

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Judge Berger issues post-trial rulings

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U.S. District Judge Irene Berger has issued a bunch of post-trial rulings in the Don Blankenship case. Here they are:

— An order denying a request from The Associated Press for a list of all of the jurors in the trial.

— A ruling against Blankenship’s request for a judgment of acquittal on all counts.

— Another decision that rejects defense efforts to have the case moved to another court jurisdiction.

— A ruling against a defense request to order MSHA to turn over more records to the defense team.

An order that rules on several other pending motions in the case.

Another order that rules on a long list of matters still pending.

 

The Don Blankenship Verdict

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F. BRIAN FERGUSON | Gazette-Mail Don Blankenship leaves federal court on Wednesday after a juror fell ill.

Photo by F. Brian Ferguson

Longtime mine safety advocate Davitt McAteer pointed out to me that today is the Feast Day for Saint Barbara, the patron saint of miners.  And Sunday is the 108th anniversary of the Monongah Mine Disaster.

Of course, this time of year especially, it’s hard to find a day on the calendar that isn’t the anniversary of one terrible mine disaster or another.  They kind of all run together sometimes, which I guess is part of the problem. The names of the mines and the towns — even the names of the miners — are often forgotten by all of us, except of course our neighbors who have lost fathers, sons, brothers and friends. For those families, the grief goes on and on.

It’s tempting to dismiss the verdict yesterday from the eight women and four men who decided the Don Blankenship case.  Only a year in jail? A misdemeanor?

It’s equally tempting to make far too much of it. A sea change in how coal-mine safety is enforced in this country?

It’s almost as tempting to politicize it. Is Booth Goodwin going to announce his run for governor now? Remember how all those Republicans tried to weaken our mine safety laws?

At the same time, if you look at Brian Ferguson’s photo on the front page of today’s Gazette-Mail, it’s difficult not to see more than a bit of smugness in Blankenship’s grin. After all, when jurors marked only the first of two “objects” of the conspiracy in Count One on their verdict form — and then checked “not guilty” for Counts Two and Three — they knocked the conviction down to a misdemeanor that, yes, carries a maximum prison sentence of only one year.

It doesn’t seem like much when you look at the photos of those 29 men who died at Upper Big Branch.

Now, I don’t know about you. But if I have my choice of no days in jail or a year — or even a day — in jail, I’ll take no days in jail, thank you very much. And remember that we don’t have much of any idea at this point how the potential fine — up to twice the financial gain or loss from Blankenship’s conspiracy — might shake out.

Continue reading…

Court releases draft ‘Allen charges’

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F. BRIAN FERGUSON | Gazette-Mail Don Blankenship, left, and his legal team leave federal court on Wednesday after a juror fell ill.

Photo by F. Brian Ferguson

Perhaps lost in the news about yesterday’s issuance of an “Allen charge” in the Don Blankenship case was that there were actually competing proposals that were being debated by lawyers in the case and U.S. District Judge Irene Berger.

For those who are interested, those various proposals have now been made public, added to the court’s PACER computer document filing system by the court.

First, here is the instruction that Judge Berger actually delivered to the jury.

Second, here is the proposal submitted to Judge Berger by the government.

Third, here is a proposed instruction from the defense regarding “juror disagreement.”

Fourth, here is a proposed instruction from the defense regarding communications with the court.

Fifth, here is a proposed instruction from the defense regarding jury deadlock.

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The jury in the Don Blankenship case has been sent home for the day because one of the jurors is sick. U.S. District Judge Irene Berger dismissed the jury at about 3:20 p.m. from their ninth day of deliberations.

 

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F. BRIAN FERGUSON | Gazette-Mail Don Blankenship and his legal team exit the Robert C. Byrd Courthouse during Tuesday's lunch break.

Photo by F. Brian Ferguson

Jurors in the Don Blankenship case have just taken their daily lunch break, but the latest news just in is that prosecutors have filed this new motion asking U.S. District Judge Irene Berger to give jurors a second “Allen charge” before she considers declaring a mistrial.

The motion begins:

The United States moves that, in the event the jury again states it is deadlocked, the Court give a second Allen charge before considering a mistrial. At the moment, of course, the jury continues to deliberate, and it may well reach a verdict that renders this motion superfluous. The United States nonetheless submits the motion now to give the Court sufficient time to consider it should it ripen.

Here are the reasons prosecutors say this is desirable:

First, the jury’s behavior these past two months shows coercion is unlikely. As the Court observed, the jury has demonstrated exemplary patience, attentiveness, and seriousness of mind. It is evident that the jury regards its duty soberly, and a properly balanced Allen charge would not sway it either way.

Second, the jury has not yet said it cannot make further progress. There have been two notes about the jury’s lack of agreement thus far, and both have asked the Court for direction on how to go forward. Early on, the November 19 note asked, “How long do we deliberate?” The December 1 note sought further direction more expressly, asking, “Do you have any further instructions as to what we should do?” Even after several days of deliberation, the jury thus holds open the prospect of progress and invites the Court to assist it in reaching a verdict. A second Allen charge will not coerce a jury that has taken such a responsible and deliberate approach to its work.

Third, the length of deliberations, even after a second Allen charge, will not be disproportionate to the amount of evidence the jury has seen and heard or the length of that evidence’s presentation. If the case had lasted only a day or two, a second Allen charge after more than seven days’ deliberations might be taken as an order to reach a verdict no matter what. The situation here differs greatly. Even if another deadlock note is received after further deliberation, directing the jury to continue deliberating would not be a disproportionate step in light of the evidence presented. This maintenance of proportionality further minimizes any possibility of coercion.

Continue reading…

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A pedestrian stands on a street corner as a message is displayed in a storefront window along the business district, Wednesday, Oct. 7, 2015, in Welch, W.Va. West Virginia is the only state in the country where more than half of adults are not working, according to the Census Bureau. It is tied with Kentucky for the highest percentage of residents collecting disability payments from Social Security, according to the Kaiser Family Foundation. And the death rate among working-age adults is highest in the nation, 55 percent higher the national average, according to the Centers for Disease Control and Prevention. (AP Photo/David Goldman)

A pedestrian stands on a street corner as a message is displayed in a storefront window along the business district, Wednesday, Oct. 7, 2015, in Welch, W.Va. (AP Photo/David Goldman)

As we waited at the Robert C. Byrd United States Courthouse yesterday for word on any movement by the jury in the Don Blankenship criminal case, it was interesting to sit in on a hearing that U.S. District Judge Irene Berger was having on another coal-related case. The Gazette-Mail’s Kate White had written about it before, prior to it being moved to federal court:

A Wyoming County couple says the buildup of methane gas from an underground mining operation caused an explosion at their home Sunday — a week after the couple filed a lawsuit against the mining company.

James and Rose Surratt, who own two properties on Woosley Road in Pineville, filed a motion Tuesday asking for emergency injunctive relief against Pinnacle Mining Co. James Surratt is an underground coal miner for Pinnacle. The company is in the beginning process of setting up an underground longwall mine that runs, in part, underneath Woosley Road.

In addition to the lawsuit filed last week by the Surratts, other residents and a small-business owner on or near Woosley Road also filed a lawsuit Tuesday against Pinnacle Mining for damages that allegedly occurred after the company began operations in their area.

Some of the out-of-town press seemed at least mildly interested. Watching the hearing was better than just sitting on the wooden benches in the courthouse lobby, though plenty of other media were content to read their novels, chat or speculate about what the jury was up to. A few folks were amazed by the case — I mean, come on, the house blew up, right?

Of course, West Virginians and other coalfield residents know that suffering all manner of mishaps, inconveniences — and disasters — has long been part of living life with the mining industry.

Anybody who was paying much attention yesterday when the residents’ expert witness, legendary mine engineer and inspector Jack Spadaro, was explaining his professional history — from his early days following the Farmington Mine Disaster, to his investigation of the Buffalo Creek Disaster, to his work on the Martin County Disaster — could not help but be reminded of that. And of course, as Spadaro rattled off those terrible parts of our history, eight women and four men in the next room were deliberating on the future of Don Blankenship, the former Massey Energy CEO whose indictment was spurred by a federal investigation of Upper Big Branch, the worst coal-mining disaster here in a generation.

At about the same time, readers around the world were checking out the latest “big picture” take on the region’s coal industry, provided by The Associated Press:

The seams of coal in some of Eddie Asbury’s mines in McDowell County are so thin that workers can barely squeeze down them. They enter on carts nearly flat on their backs, the roof of the mine coursing by just a few inches above their faces. They don’t stand up all day.

To keep his business operating with such a paltry amount of coal, Asbury has to do everything himself. He has no use for the shiny, multimillion-dollar mining machines on display this fall at the biannual coal show nearby. His equipment is secondhand stuff that he repairs and refurbishes. The coal he and his workers scrape out of the mountain is washed and prepared for sale in a plant Asbury and a colleague built themselves.

“It’s how we survive,” said Asbury, 66, a miner since 1971.

Then there’s this kicker of a line:

Even coal is barely surviving in coal country — and coal is about the only thing Central Appalachia has.

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