Coal Tattoo

Morning update: Lafferty cross-examination continues

After taking Veterans Day off, the criminal trial of Don Blankenship continued this morning with cross-examining continuing of Federal Bureau of Investigations Special Agent Jim Lafferty.

Defense attorney James Walls questioned Lafferty about the amount of information Blankenship received about safety violations at Upper Big Branch and other Massey mines.

Lafferty conceded that daily violation reports sent to Blankenship did not contain all of the details from the actual citations and orders issued by the U.S. Mine Safety and Health Administration – something Lafferty had already testified to during direct examination.

Walls went through a collection of MSHA citations and daily reports to Blankenship to illustrate for jurors the differences between the two.

The reports, for example, list the section of federal safety rules violated and a type of violation, such as roof control or ventilation. The reports to Blankenship also specified the estimated penalty for each violation.

The MSHA citations themselves include longer descriptions from agency inspectors explaining exactly how roof control or ventilation rules were violated.

Also this morning, Walls moved forward with the defense’s plan to try to play for jurors the defense’s choices from the 1,600 of Blankenship’s phone calls that the former CEO recorded.

Assistant U.S. Attorney Steve Ruby objected that the calls were hearsay. U.S. District Judge Irene Berger then held a lengthy private conference with lawyers from both sides – and with Blankenship, who stood at the judge’s bench with the attorneys. After the bench conference ended, Berger gave the jury its morning break.

Blankenship wants to play more phone calls


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.”

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Mine Explosion Congress

With the criminal trial of former Massey Energy CEO Don Blankenship taking the day off tomorrow for Veterans Day, the Gazette-Mail’s Joel Ebert has some interesting news that just surfaced:

In the midst of the criminal trial of Don Blankenship, Alpha Natural Resources is using its bankruptcy proceedings to again try to avoid paying legal fees for the former Massey Energy CEO.

According to a motion filed in the Eastern District of Virginia’s bankruptcy court on Nov. 3, Alpha — which bought Massey in 2011 — is seeking to shed its obligation by calling Blankenship’s legal service contract, which he entered in June 2010, an executory contract.

The most interesting part, I thought, was this statement from Alpha:

It is a pre-petition obligation that we cannot and do not intend to pay. We are rejecting any agreements related to the indemnification of attorney fees incurred by Mr. Blankenship.

When the criminal trial resumes on Thursday at 9 a.m., FBI Special Agent Jim Lafferty will be back on the stand.

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

During testimony from financial expert Frank Torchio, both the government and defense team for Blankenship used newspaper stories from around the country to bolster their case.

The defense referenced several stories (the Chicago Tribune, the L.A. Times and the Newark Star-Ledger) published after President Barack Obama’s April 15 announcement in the White House Rose Garden that the U.S. Department of Justice would assist in the mine explosion probe.

The government meanwhile used their own news clippings, including a Charleston Gazette article by Ken Ward Jr. dated April 7, 2010 and another, dated April 12, 2010, from former Daily Mail reporter Ry Rivard.


During a hearing Monday evening, defense lawyers objected to admitting the newspaper stories into evidence for the jury to consider, with lead defense lawyer Bill Taylor saying, “This comes in the category of you’ve got to be kidding me.”

Taylor objected to the material in the articles being included, nothing for example that a Gazette story was “filled with references to Aracoma, the guilty pleas, and quotes from [United Mine Workers President] Cecil Roberts. ” Taylor said that the articles were “inflammatory” and would create a danger to the jury’s ability to fairly weigh the evidence in the case.

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LaffertyJurors in the criminal trial of Don Blankenship took their daily lunch break today with FBI Special Agent Jim Lafferty still on the stand, providing summary testimony through questioning by Assistant U.S. Attorney Steve Ruby.

Ruby and Lafferty showed jurors two large charts aimed at illustrating the frequent inattention at Massey’s Upper Big Branch Mine to cleaning up spilled coal and coal dust and to properly rock-dusting conveyor belt entries of the mine to prevent fires and explosions.

Based on Lafferty’s review of the fireboss books from Upper Big Branch (see here, here and here), the charts showed boxes representing particular shifts and particular conveyor belts, with color coding to indicate whether, for example, mine examiners had found a need for rock-dusting. The chart was full of red boxes, which indicated that company examiners frequently found areas that needed rock dusted, but did not note on their reports that the corrective actions had been completed.  Of the 787 boxes that were marked as needing rock dusted, the work was reported to have been completed only 102 times, Lafferty told jurors.

Also this morning, Lafferty testified that he reviewed the 59 “unwarrantable failure” orders that were issued at Upper Big Branch and found that all but three of them were marked by MSHA inspectors as having involved “high negligence.” The other three were marked as having been “reckless,” Lafferty testified.

The jury returns at 1:30 p.m.

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

Today U.S. District Judge Irene Berger denied two recently filed motions by the Blankenship defense team.

The first denial was a refusal to allow the defense to introduce an edited version of a video of a safety program kickoff that took place in August 2009. The judge previously denied the defense’s efforts to introduce the video.

In her brief order, Berger cited her previous reasons for continuing to deny the introduction of the video.

The order comes a day after prosecutors filed a response to the Blankenship team’s latest effort to have jurors be able to see the video.

The second order from Berger filed today denied the defense’s opposition to government exhibit 83 and any similar documents. The exhibit, which has already been admitted into evidence, showed how Massey compared to other companies in terms of MSHA violations.

In her order, Berger was direct:

“For the reasons previously set forth on the record regarding the admissibility of this exhibit, and because the Court finds no evidence of unfair surprise and no violation of Fed.R.Crim.P. 16, the Court ORDERS that the motion be DENIED.”

Then-Massey Energy CEO Don Blankenship personally received daily reports that listed nearly 600 safety violations issued to the Upper Big Branch Mine in the months before the April 2010 explosion, the Federal Bureau of Investigation’s lead agent investigating the mine disaster told federal jurors this morning.

FBI Special Agent Jim Lafferty summarized the findings of his review of five thick binders of daily violation reports sent to Blankenship and other top Massey officials in late 2009 and early 2010.

Questioned by Assistant U.S. Attorney Steve Ruby, Lafferty read from and explained to jurors the Massey financial reports from the years prior to the disaster. One report, for example, showed that Massey had nearly $1.2 billion in cash-on-hand as of March 31, 2010, Lafferty testified.

Among other things, federal prosecutors allege that Blankenship had the power – and the money available – to hire more miners so that UBB and other Massey mines could keep up with government health and safety standards.

Instead, prosecutors say, Blankenship conspired to violate those safety rules and cover up the resulting hazards to workers.

Lafferty took the stand this morning as prosecutors prepared to end the presentation of their case against Blankenship. He is the 27th and last government witness on the 23rd day of testimony in the trial.

Lafferty explained that while Blankenship was not sent copies of the actual citations issued by the federal Mines Safety and Health Administration, his daily violation reports provided a summary of what each violation alleged and the seriousness of each one.

Ruby had Lafferty go through a collection of MSHA citations and daily violation reports in pairs to show jurors how each of the violations was summarized in that day’s daily report to Blankenship. After reviewing eight of these pairs of citations and daily reports, Ruby prefaced his next question with the phrase, “We could do this all day.”

Defense lawyers objected and U.S. District Judge Irene Berger told the jurors to disregard ruby’s remark.

Ruby then asked Lafferty how many of the citations from UBB were summarized in the daily violation reports sent to Blankenship.

“587,” Lafferty replied.

Blankenship prosecutors set to call last witness

Blankenship Nov 9

Photo by Joel Ebert

It seems like a long time since Assistant U.S. Attorney Steve Ruby said on Oct. 21 that they might wrap up their case early the following week in the criminal trial of former Massey Energy CEO Don Blankenship.

So Ruby was pretty up front about it when U.S. District Judge Irene Berger asked him this evening for another estimate.  Ruby and Judge Berger agreed his track record on such predictions wasn’t very good.

But it does seem as if the prosecution is wrapping up. Tomorrow morning, they are expected to call their last witness, lead FBI Special Agent Jim Lafferty, to the stand. Ruby said the direct examination of Lafferty should be completed by late morning or early afternoon — then, of course, the defense will get to cross-examine the agent.

Defense lawyers could be starting their case as early as Thursday — depending on exactly how Judge Berger handles the defense motion for a judgment of acquittal that lead defense lawyer Bill Taylor is expected to make before opening his case.

Aside from today’s courtroom action (see the updates here, here and here), there were some new court filings today:

— Prosecutors filed a response to Blankenship’s latest effort to have jurors be able to see a video of what defense lawyers have touted as a major safety program kickoff meeting in August 2009. They continued to argue against allowing the video, which Berger has ruled out of the case at least twice.

— The government also filed a response to the defense’s motion that Berger strike from the trial evidence a comparison of Massey’s safety violations to those received by other major coal producers.

— Defense lawyers, meanwhile, filed a “proffer” to explain to the court testimony that they believe they would have presented if Berger had allowed them to re-cross examine prosecution witness Bill Ross, a former Massey Energy ventilation expert.

The juror returns tomorrow at 9 a.m.

Defense lawyers continued this afternoon to cross examine a prosecution expert about the impact on Massey Energy stock prices of public statements in news reports about the Upper Big Branch Mine disaster.

Eric Delinsky, one of former Massey Energy CEO Don Blankenship’s lawyers, quizzed prosecution witness Frank Torchio about the public disclosures that could have played a role in Massey’s stock prices plummeting in the weeks after the UBB explosion.

For example, Delinsky questioned why a National Public Radio report of an FBI criminal probe of UBB prompted a large drop in Massey’s stock, while an announcement by President Barack Obama that he had told the U.S. Department of Justice to assist in the mine explosion probe made no significant change to stock prices.

Along with challenging Torchio’s analysis the line of questions allowed Delinsky to repeatedly state to the jury the idea that “President Obama” had “ordered” a criminal investigation that led Blankenship’s indictment.

Blankenship has argued the case against him was politically motivated.

Delinsky was also trying to convince jurors that information about potential criminal charges – as well as about Massey’s large number of violations – was not really new when NPR reported it. Torchio had described the NPR story as a crucial point that led to a $500 million drop in Massey’s worth.

Torchio said that his fee is $500 per hour and that he’s billed the government $25,000 to $30,000. He said he was contacted by the government to work on the case in June 2014 and did not start working on it until early 2015, after Blankenship was indicted.

The jury in the Don Blankenship trial continued this morning to hear testimony from Frank Torchio, a financial expert hired by federal prosecutors, about Massey Energy stock price changes following the Upper Big Branch Mine Disaster and about the Massey statement to shareholders that is at issue in counts 2 and 3 of the indictment against Blankenship.

During cross-examination, Torchio and defense lawyer Eric Delinsky got into it a little bit — interrupting each other to the point that U.S. District Judge Irene Berger stepped in, something the judge has seldom had to do in the previous 21 days of testimony of the Blankenship trial.

In particular, Delinsky didn’t seem to like it much when Torchio refused to accept the premise of question from Delinsky about whether a report from a financial analyst at Jeffries had nothing to do with comments in Massey’s shareholder statement — key remarks concerning the indictment — that Massey doesn’t condone safety violations and strives to be in compliance with all rules at all times. Torchio said he didn’t agree that the two things weren’t related — and said that the analyst remark that the drop in Massey’s stock prices (see previous post) was “excessive” given the circumstances suggested the analyst was disagreeing with a market response to media reports about Massey’s poor safety record.

“There was already some sentiment in the market that was concerned about Massey’s compliance with the safety regulations,” Torchio said. “The market was concerned.”

Torchio was still on the stand when Judge Berger gave jurors the lunch break, with Delinsky still conducting cross-examination.

Meanwhile, Judge Berger did post to the court’s PACER system for the case a copy of the letter that Charleston Gazette-Mail editors sent to her late last week regarding media access to information about bench conferences and jury selection. There’s been no response from the judge, however.

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Prosecutors in the Don Blankenship criminal case continued this morning with testimony about the securities fraud charges against the former Massey Energy CEO.

FrankTorchio-1Frank Torchio, a financial expert testifying for the government, told jurors about a study he performed which examined Massey’s stock price changes after the April 5, 2010 explosion at the company’s Upper Big Branch Mine.

Torchio explained that Massey’s stock price plummeted on April 6 and 7, with the company losing about $900 million in value in just two days.

The stock price rebounded somewhat on April 9, when Massey told investors the company does not condone safety violations.

But then in late April, when National Public Radio reported the existence on an FBI criminal investigation of the mine explosion, Massey shares dropped again, costing about $500 million in value, Torchio said.

Torchio said Massey stock dropped again a few weeks later, when the U.S. Department of Justice confirmed the existence of the criminal probe. Massey lost $382 million in equity after that disclosure, Torchio said.

Torchio is the 26th witness as the trial begins its 22nd day. Along with federal charges of conspiracy to violate mine safety laws, Blankenship is accused of issuing a statement saying Massey did not condone safety violations to try to stop the initial Massey stock drop after the blast.


Blankenship trial ends week with juror question


Former Massey CEO Don Blankenship leaves the federal building on Friday. Photo by Joel Ebert.

Today’s court session in the trial of former Massey CEO Don Blankenship ended with U.S. District Judge Irene Berger sending jurors home a little early — at about 4:30 p.m. — after Assistant U.S. Attorney Greg McVey completed his cross examination of former Massey chief administrative officer John Poma.

Before the jury left, though, Judge Berger announced to the courtroom that she had received a question from one of the jurors about “the nature of the charges” against Blankenship. Judge Berger then told jurors that she would eventually — after testimony has concluded — instruct them about the law that they are to apply to the case. The judge did not reveal any more information about the question from the juror.

The trial continues at 9 a.m. Monday in the Robert C. Byrd United States Courthouse in Charleston.

Trial turns to SEC charges

Testimony in the Don Blankenship case returned this afternoon to allegations of a false statement and securities fraud against the former Massey Energy CEO

John PomaJohn Poma, a former Massey chief administrative officer, took the stand as the government’s 25th witness on the 21st day of the trial.

Assistant U.S. Attorney Greg McVey questioned Poma about a Massey statement to shareholders issued after the 2010 Upper Big Branch Mine disaster.

Prosecutors allege part of the statement – saying Massey did not condone safety violations – was false. They allege Blankenship engineered the false statement to try to stop Massey’s stock price from plunging following the explosion.

Poma testified that Blankenship approved the statement but on cross-examination by defense lawyer Eric Delinsky, Poma said Blankenship did not write the statement or make any edits.

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

Today the Gazette-Mail sent a letter to U.S. District Judge Irene Berger. The purpose of the letter was to express frustration with the continued use of bench conferences with attorneys for the defense and prosecution during the criminal trial of former Massey Energy CEO Don Blankenship.

In the letter, we essentially asked for access to transcripts of what is discussed in the private meetings that have been a regular occurrence throughout the trial, even when the jury isn’t present in the courtroom.

We also asked for access to the voir dire transcripts from jury selection and copies of the responses to the jury questionnaires that were sent out.

As of this afternoon, we have not heard back from Judge Berger.

To read the full letter to Berger, click here.

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.

DSC_1353 - Bill Ross - Nov 6

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.

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Redirect of Ross continues

Assistant U.S Attorney Steve Ruby continued his redirect examination of former Massey Energy ventilation expert Bill Ross this morning trying to respond to defense efforts to convince jurors that the federal Mine Safety and Health administration wrongly refused to allow Massey to continue using belt air as part of a ventilation plan for a new longwall section at the UBB mine.

Ross testified that MSHA allowed Massey to keep using belt air – in which fresh air is brought into the mine through the same tunnels as coal conveyer belts – even though the company had not provided adequate information justifying the practice.

Ruby had Ross read to the jury from MSHA records that outlined the findings of a national study of belt air mandated by Congress after the death of two miners in a January 2006 belt fire at Massey’s Aracoma Mine in Logan County.

U.S. District Judge Irene Berger has not allowed jurors to learn that two miners died at Aracoma and forced any mention of it to refer only to a “safety incident.”

Ross read the jury MSHA records that cautioned agency staff to “take special care” when considering belt air proposals.

MSHA staff were told to require a variety of data to support coal company applications to use the practice, Ross said.

Ross testified that Massey couldn’t get that information together quickly enough for the company’s hoped-for start day for the new longwall section.

“We did not have all that data” Ross told jurors. “I don’t know if all of that was ever submitted to MSHA or not.”

Ross also read aloud from previously discussed exhibits that showed former Massey Energy CEO Don Blankenship personally rejected a proposal for a new air shaft that Ross agreed would have helped cure UBB’s ventilation problems.

Ross also testified again about his concerns that Massey didn’t provide its mines enough workers to keep up with safety laws.

“The mine grows as you produce and when you look at that much area – rock dust, air flow, roof support, ventilation – you can keep advancing as it grows, you have to consider the need for upkeep and support and ventilation,” Ross said.

When Berger dismissed jurors for a mid-morning break, she asked one of the 15 jurors, identified only as “Mr. Rose” to come to the bench. The judge then held a private discussion with that juror and lawyers for both sides with “white nose” playing in the courtroom so the public could not hear what was said.

Defense ends cross-examination of Ross

Today’s proceedings in the Don Blankenship trial ended as Assistant U.S. Attorney Steve Ruby continued his re-direct examination of former Massey Energy ventilation expert Bill Ross.

Among other things, Ruby was asking Ross about cross-examination that appeared aimed at blaming some of Massey’s problems on coal miners who complained about having to perform work — such as cleaning up spilled coal or rock-dusting — that wasn’t specifically part of their job description.

Ross emphasized that, “I didn’t call anyone lazy,” and that, “it’s the foreman’s responsibility to oversee their activities, to ensure they comply with the law.”

Ruby began questioning Ross again after defense lawyer Bill Taylor completed his cross-examination of Ross.

The jury returns at 9 a.m. on Friday.

DSC_1324 - Bill Ross - Nov 5

Former Massey official Bill Ross, right, leaves the federal courthouse with his lawyer, Mike Gibson, for the lunch-time break in the Don Blankenship trial. Photo by Joel Ebert.

As jurors in the Don Blankenship trial took a break today for lunch, defense lawyer Bill Taylor was continuing his cross-examination of key government witness Bill Ross, a former Massey Energy insider who had urged Blankenship to make major safety reforms in the months prior to the Upper Big Branch Mine Disaster (see here and here).

After spending the first half of the morning using Ross to go after the U.S. Mine Safety and Health Administration,  Taylor began to try to discredit some of the things Ross had to say about Massey’s safety practices. For example, Taylor got Ross to admit that, while he complained about under-staffing at Massey mines, Ross had never really studied any of the staffing levels at the mines and wasn’t even really aware of exactly how the mines were staffed.

Ross, though, kind of argued back at Taylor about some things, for example when Taylor asked if Ross had compared staffing levels and violation numbers at Massey mines to any non-Massey mines, to see if they were comparable, Ross said:

The numbers you are asking about were not relevant to what I was doing. I was trying to address Massey, and to reduce our violations.

Ross, a former MSHA inspector, also testified that he thought some of Massey’s complaints about MSHA taking too long to consider requests for new mining plans were justified, and said he had urged top Massey officials to complain to agency higher-ups in Arlington, Va., about those delays.

The jury is expected back at 1:20 p.m.

Former Massey Energy CEO Don Blankenship’s defense lawyers returned this morning to their efforts to blame problems at the Upper Big Branch Mine on the U.S. Mine Safety and Health Administration.

Lead defense lawyer Bill Taylor resumed his cross-examination of former Massey ventilation expert Bill Ross with a series of questions about Massey’s dispute in 2009 with MSHA over the use of “belt air” ventilation on a new longwall mining section at UBB.

In doing so, Taylor took Ross right into the heart of Blankenship’s personal theory of the cause of the April 2010 explosion at UBB – an issue that U.S. District Judge Irene Berger has said she would not allow to be debated before the jury.

Ross testified that he felt UBB needed to continue using belt air – in which fresh air intakes double as conveyer belt tunnels – because of the mine’s rate of liberation of explosive methane gas.

Ross said that he “begged” MSHA to allow UBB to continue using belt air but that agency officials were “adamant” they would not approve that type of ventilation for the new longwall section (previous testimony has indicated MSHA only briefly pushed UBB to stop using belt air and reversed that decision when the plan didn’t work).

Assistant U.S. Attorney Steve Ruby objected and Berger sustained the objection when Taylor tried to ask Ross about the details of the “history” of “incidents” at UBB, likely a reference to several methane “outbursts” at the mine.

Blankenship claims the UBB explosion was caused by an uncontrollable methane inundation, not negligence by Massey.

Ross testified that there were dangers to belt air but that UBB’s methane liberation made using the technique necessary.

Ross told the jury, “The possibility of having a fire along the belt line did exist and does exist in all coal mines but it is far outweighed by the risk of having ignition on the face or an explosion.”