Coal Tattoo

This post is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

There’s a new 18-page motion from Blankenship’s defense attorneys to exclude selective excerpts from audiotapes that have yet to be introduced.

You can read the entire filing here.

Essentially the defense is arguing that several audio recordings the government plans to use are incomplete or irrelevant to the charges against Blankenship.

One recording – referred to as number 589 – took place on November 6, 2009 and features Blankenship complaining to Performance Coal Co. President Chris Blanchard about how he can’t hear him on the phone.

Here’s a few excerpts of their exchange, according to the transcript of the recording – which is provided in the defense’s motion. The following is from a transcript of the phone call provided by the government:

Blankenship: Am I on speaker?

Blanchard: No, sir.

Blankenship: Hmm, having trouble hearing you.

And later:

Blankenship: You reckon when you’re talking to your people at the mines that they can’t hear you any better than I could and maybe they’re afraid to tell you they can’t hear you and that’s the reason they don’t do what you tell ’em?”

Blanchard: Sir, I, that’s possible.

Blankenship: Hmm.

Blanchard: It would be bad, but it’s possible.

Blankenship: My guess is you hold the phone under your chin instead of in front of your mouth.

Blanchard: I was, sir.

Blankenship: Okay. Bad habit.

Assistant U.S. Attorney Steve Ruby mentioned the exchange between the two men during his opening statement on the first day of the trial.

In their motion, the defense is arguing that because the exchanges are not relevant to the superseding indictment, they should not be allowed to be used in the trial.

The defense also provides a transcript of the phone conversation, which is longer than the one the government had.

The extra excerpts from the transcript made by the defense basically just contains a conversation about a roof falling. Blankenship asks Blanchard about what kinds of bolts were used.

The defense makes the same argument (that the recordings are irrelevant to the indictment) for two other recordings – which have been called 1260 and 1535A.

1260 was made on January 23, 2009 and was once again a phone call between Blankenship and Blanchard.

During the call, the defense notes, Blankenship “expresses his displeasure” that Blanchard failed to take actions on something the CEO requested.

1535A was recorded on April 2, 2009 and was a conference call between Blankenship, Blanchard and Massey vice president Chris Adkins.

The defense describes the exchange, saying it “concerns Mr. Blanchard’s communication of employee benefits to his workforce.”

The defense argues that employee benefits have no relevance to the indictment and should therefore any recordings should be thrown out.

In their motion, the defense notes that if the recordings are allowed into evidence, then the government should have to include the additional portions of the recordings as well.

One of the issues here is that U.S. District Judge Irene Berger issued a ruling on the motions in limine that prohibits the defense from using certain types of phone calls in their own case.

This is an update Ken wrote while in court this morning.

The criminal trial of former Massey Energy CEO Don Blankenship continued Thursday morning with the cross-examination of former Upper Big Branch miner Brent Racer.

Defense attorney Bill Taylor took Racer through a series of questions aimed at convincing jurors that some of the conditions at UBB – such as low flow of fresh air to ventilate the mine – were typical things that sometimes happen in all underground mines.

Racer was one of three former UBB miners who testified for the government on Wednesday, describing difficult working conditions at UBB.

On redirect, Assistant U.S. Attorney Greg McVey had Racer read to the jury from citations the U.S. Mine Safety and Health Administration had issued for ventilation violations at UBB. Racer testified that the conditions described in the MSHA citations – such as missing and damaged ventilation walls – were typical at UBB.

Also this morning, U.S. Attorney Booth Goodwin began questioning Charles Justice, who worked as a dispatcher at Upper Big Branch. (Goodwin on Wednesday had personally questioned Massey public relations agent Karen Hanretty and former UBB miner Michael Smith)

Justice described for jurors how he would receive a call from mine guards whenever federal safety inspectors showed up at the guard shack at UBB.

“I would try to find out what section on part of the mine they were going to and I would let them know underground,” Justice said.

Goodwin had Justice identify for jurors photos of the guard shack and of the mine office where he worked, including his dispatcher’s desk with a mine phone and an outside phone. Justice said that the office was a mile to a mile and a half away from the guard shack.

After he would call underground, Justice testified, workers there “could correct any deficiencies before the inspectors would get there.”

“It was just common practice,” Justice told the jury. “If an inspector comes on the property that was the procedure.”

Justice said he would use code words and phrases – “Is it raining outside” or “What’s the weather like?” – when he tipped off workers underground.

“It was in case the inspectors overheard you or something, that they wouldn’t know what you were talking about.”

On cross-examination by defense lawyer Blair Brown, Justice agreed that a dispatcher’s main job was to direct traffic in and out of the mine. To avoid collisions, dispatchers would need to notify underground workers anytime anyone was entering the mine, Justice agreed.

Justice also agreed with Brown that the mining company had a right to accompany inspectors underground and to exercise that right management would have to be told inspectors were coming.

On redirect, Justice told jurors that he only used code words when inspectors were going underground – not for other visitors.

Brown also read to Justice from Justice’s grand jury testimony in which Justice said he learned about inspectors arriving through “word of mouth” but “very rarely” in calls from the guard gate.

New court filing from defense team

This post is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

The Blankenship defense team filed another motion today. The latest filing is in opposition to the government’s motion to exclude arguments and evidence relating to Massey Energy’s disagreements with the regulation prohibiting use of belt air.

Here’s an excerpt from the filing:

The defense, however, will introduce evidence and argue that MSHA insisted upon certain methods of ventilation that resulted in revisions to the UBB ventilation plan that were complex and difficult to comply with and that caused, among other things, difficulties in ventilating the working sections of the mine—including, specifically, the longwall section.2 Such evidence is both relevant and highly exculpatory.”

And another:

“Count One of the superseding indictment charges Mr. Blankenship with conspiracy to willfully violate mine safety and health regulations at UBB.

Evidence will show that alleged violations of ventilation-related regulations at UBB were the result of circumstances other than any conspiracy charged in the superseding indictment.

For example, in a memorandum dated June 7, 2010, Chris Blanchard, the former president of Performance Coal Company, which operated UBB throughout the indictment period, wrote that a substantial percentage of the ventilation-related “[o]rders” and “citations received at UBB in 2009 and 2010 were caused directly from following the complex ventilation scheme mandated by MSHA.”

You can read the entire filing here.


Former Upper Big Branch miner Gary Young told jurors on Oct. 14 that he was frequently frustrated in trying to do his rock dusting job at the Upper Big Branch Mine. Photo by Joel Ebert

This is an update Ken called in from court this afternoon.

As the Don Blankenship trial continued this afternoon a former Upper Big Branch miner took the stand.

Gary Young told jurors that he was frequently frustrated in trying to do his job rock dusting the UBB mine to try to help prevent explosions. Dusting machines were broken, he said. Supplies ran short and he couldn’t get a mine locomotive to pull his dusting machine underground.

“I’m set up to fail here,” Young told jurors, reading from a notebook where he recorded what happened on his shifts at the Upper Big Branch Mine.

Also this afternoon, jurors heard from Karen Hanretty, a public relations agent who did work for Massey. Hanretty testified that Blankenship personally approved a press release issued after the April 2010 UBB explosion that said Massey did not “condone” safety violations and strove to always comply with rules.


Don Blankenship leaves court this afternoon with his lead defense lawyer, Bill Taylor, left, and another one of his attorneys. Photo by Joel Ebert.

After a favorable ruling this morning by U.S. District Judge Irene Berger,  defense lawyers for Don Blankenship showed jurors a series of memos that depict Blankenship pressing Massey Energy officials to take steps to reduce safety violations at the company’s mines.

Sandra Davis, Blankenship’s former secretary, answered questions about the memos from defense lawyer Eric Delinsky.

In one memo, Blankenship says Massey managers needed to take reducing violations more seriously.

“Let’s not get bureaucratic,” Blankenship says in that March 2009 memo. “Let’s get effective and, primarily, let’s do it yesterday.”

Blankenship says in another document that dealing with increased federal safety citations is “a new and frightening challenge” and that he’s very disappointed company officials don’t “step up” to respond.

“Let’s get it done,” Blankenship says in another document.

“Do your jobs,” he tells company officials in another.

Questioned by Assistant U.S. Attorney Greg McVey, Davis said she did not know if the safety initiatives discussed by Blankenship were ever put into place or, if they were, if they were effective.

Blankenship trial exhibits

This post is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

For those interested, we have been uploading all of the exhibits used by the government and Blankenship’s defense team onto our trial webpage.

This is being done in order for things to be more convenient for readers – instead of having to download documents or open zip files (or two websites each day), we are making these documents easily available to you.

The audio recordings the government has used over the past few days are all found on our YouTube trial playlist, which you can find here. Some of the audio files are 10 seconds long, while others are nearly 10 minutes.

In addition to the audio/video exhibits, we have also made available the hundreds of pages both attorneys are using to make their case.

This post is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

Among the many things found in the the transcript from the Oct. 6 closed-door meeting between U.S. District Judge Irene Berger and attorneys for both the government and Blankenship was a reference to a potential juror who was later dismissed during the jury selection process.

According to the transcript (page 8), Berger acknowledges the defense’s motion for further voire dire and cites the conduct of a potential juror.
Berger says:

“I just want to advise you all that I’ve also reviewed the defendant’s motion for further voir dire in light of Bogg’s conduct after he left here. We’ve discussed that aspect of the motion which deals with Juror Dowler, but I do not intend to ask these folks again whether or not they have read anything that any of their fellow jurors have written or if they’ve discussed anything. I think we’ve been cautious about trying to do that when they came to the bench, Mr. Brown, but there may be people who were already seated before I started to ask those questions, and so I want to do that in the morning before you all do your strikes.”

Who Berger refers to as Boggs in the above statement is actually Aaron Boggs – a potential juror who was interviewed and retained on the first day of jury selection (Oct. 1). It is unclear exactly when Boggs was dismissed but on Oct. 2 he posted the following on his Facebook wall:

Aaron Boggs small FB post

If you are interested in reading the Oct. 6 transcript, click here.

U.S. District Judge Irene Berger this morning reversed her previous rulings and said she would allow Don Blankenship’s defense team to use as evidence a series of memos and handwritten comments from the former Massey CEO.

Berger said that, after reviewing additional case law pointed out in email to her by Blankenship lawyer Bill Taylor, she concluded her rulings Tuesday were “clearly erroneous.”

On Tuesday, the judge had repeatedly blocked defense lawyer Eric Delinsky from asking Blankenship’s former secretary, Sandra Davis, about memos Blankenship had written and handwritten responses he scribbled on memos other Massey officials had sent to him.

The judge said that she was wrong to rule that about a dozen documents could not be admitted because they were “self-serving statements” that could not be considered reliable.

Berger said that her further review shows those records were made before the Upper Big Branch explosion and prior to any charges being brought against Blankenship. The timing of the statements makes them admissible as evidence of Blankenship’s state of mind at the time that he made the statement in the documents, the judge said.

Berger announced her ruling this morning after Assistant U.S. Attorney Greg McVey completed his redirect examination of Davis.

The judge had the jury taken out of the courtroom before announcing her ruling. She said she would bring Davis back to the witness stand to allow defense lawyers to question her about the documents.

Judge Berger’s in limine rulings

This post is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

Today the Gazette-Mail purchased a partial transcript of the October 6 closed-door meeting between U.S. District Judge Irene Berger and the prosecuting and defense attorneys.

In this meeting, Berger made her rulings on the in limine motions.

Blankenship’s lawyers filed 16 separate motions. Prosecutors filed one motion that outlined 11 types of material they want Berger to block from the trial.

Because the media was locked out of the meeting, exactly how Berger ruled on each in limine motion was unclear until today.

You can read the transcript here.

I’ve been slowly going through the document – so here’s a summary I have done so far.

Document: 304 – The defense’s motion to exclude evidence, testimony, or arguments related to public statements made by Blankenship defendant after the Upper Big Branch Mine explosion.

Ruling: Denied

Document: 305 – The defense’s motion to exclude evidence, testimony or arguments relating to a 2005 memo called “Running Coal.”

Ruling: Holding off on ruling until it seen how the memos are going to be used

Document: 307 – The defense’s motion to exclude evidence, testimony or arguments related to the effect on Massey’s financial performance and on investors of past violations of federal mine safety and health standards.

Ruling: Denied

Document: 308 – The defense’s motion to exclude evidence, testimony, arguments related to Massey’s September 2010 letter to stakeholders.

Ruling: Denied

Document: 309 – The defense’s motion to exclude evidence, testimony, or arguments related to July 2, 2010 SEC staff comment letter and Massey’s response.

Ruling: Denied

Document: 310 – The defense’s motion for preliminary determination of the admissibility of purported co-conspirator statements and acts under Rule 104.

Ruling: Holding off on a decision

Document: 311 – The defense’s motion to exclude evidence, testimony or arguments related to citations issued at the Upper Big Branch Mine.

Ruling: Denied

Document: 312 – The defense’s motion to exclude evidence about its compensation and stock holdings.

Ruling: Unclear

Document: 314 – The defense’s motion to exclude testimony of David Hughart.

Ruling: Holding off on ruling until it seen how the memos are going to be used

Document: 315 – The defense’s motion to exclude evidence, testimony, or arguments regarding alleged omission of material facts.

Ruling: Denied

Document: 316 – The defense’s motion to exclude from trial the Mine Act prohibition on advance notice of inspections.

Ruling: Denied

Document 317 – The defense’s motion to exclude argument that violation reduction at Upper Big Branch demonstrated authorization of violations

Ruling: Denied

Document 318 – The defense’s motion to exclude proposed opinion testimony of Tracy L. Stumbo.

Ruling: Partially granted

Here’s what Berger said:

“After careful consideration of your submissions, I will listen to the testimony regarding his qualifications and his methodology and whether the same is generally accepted in his field to determine the admissibility of his opinions. However, assuming that expert opinions are relevant and admissible, I find that his proffered opinions regarding, quote, mutual understanding should be excluded. The opinion almost necessarily comments on the existence of a conspiracy and, as such, without the specific language of conspiracy, amounts to a legal conclusion. I find that he should not be permitted to testify to the mutual understanding.”

She continued:

“Mutual understanding is often used synonymously with conspiracy, and so I find that it’s not appropriate to allow the witness to testify in those terms.”

Document: 319 – The defense’s motion to exclude proposed opinion testimony of Frank Torchio.

Ruling: Partially granted

Here’s what Judge Berger said:

The defendant bases this motion on the nature of the opinions as well as the methodology used. After careful consideration of the motion and a response, I grant the motion with respect to the substance of those proffered opinions which specifically reference the term “materiality,” the materiality of the statements at issue in this case.

I find no fault with Torchio’s methodology as presented by the Government in its response, and, therefore, he can, as a witness, give testimony and opinion as a result of his training, knowledge, and education that does not invade the province of the jury, including legal conclusions, and that does not specifically indicate the statements at issue here are material. In making the ruling that he should not be able to testify that the statements made here are material, this Court has given great consideration to the fact that this is a criminal case and that the materiality is a legal element of the charged offense for the jury to determine.”

That is all I have done for now. I am still reading the document and will have an update on the government’s in limine motions.

Here’s an update Ken Ward Jr. called in from federal court this afternoon.

Former Massey Energy CEO Don Blankenship’s defense lawyers continued this afternoon with their cross examination of Blankenship’s former secretary, Sandra Davis

Blankenship defense attorney Eric Delinksy tried unsuccessfully to enter into evidence numerous Massey emails and memos. U.S. District Judge Irene Berger held lengthy bench conferences about more than a half dozen of the documents. Berger did not announce her rulings but after the bench conferences Delinsky moved on to trying to get different documents admitted.

Eventually Judge Berger admitted into evidence a February 2010 memos to Blankenship from then-Massey vice president Chris Adkins.

Adkins told Blankenship in the memo that Massey’s safety violations were down 15 percent in 2009 compared to 2008. Adkins included a list of what he said were new Massey safety initiatives including more ventilation and safer roof bolting machines in underground mines.

DSC_0936 - Sandra Davis 1

Sandra Davis, Don Blankenship’s former secretary, leaves the federal courthouse in Charleston at lunchtime Tuesday. Photo by Joel Ebert.

Defense lawyers for former Massey Energy CEO Don Blankenship late this morning began their cross-examination of Blankenship’s former secretary, Sandra Davis.

Earlier in the day, prosecutors had continued their direct examination of Davis, using her testimony to play more audio recordings of Blankenship’s phone calls and to get a variety of Blankenship memos, emails and other documents admitted into evidence in the case.

Questioned by defense lawyer Eric Delinsky, Davis explained that she had previously worked with Blankenship starting in the early 1980s, and then became his personal executive assistant in 2002 at Massey Energy. She maintained his email account, managed his schedule and phone calls, and kept track of the flow of paper to and from the then-Massey CEO, jurors were told.

Davis agreed with Delinsky that Blankenship had high standards for Massey employees and became frustrated when workers did not meet those standards. She agreed with Delinsky’s characterization that Blankenship often sent notes that were angry, mean and rude.

“He sent notes like that to everybody when he got frustrated, didn’t he?” Delinsky asked. “Yes,” Davis answered.

Delinsky wanted to ask Davis if she enjoyed working for Blankenship, despite his angry notes and demanding management style, and asked her if her time working for him was personally and professionally a good experience. Assistant U.S. Attorney Greg McVey objected, saying such questions were irrelevant and beyond the scope of his direct examination. U.S. District Judge Irene Berger sustained the objection, stopping that line of questioning.

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Here’s an update Ken Ward Jr. called in from federal court this morning.

Prosecutors this morning continued playing for jurors audio recordings of former Massey Enegy CEO Don Blankenship’s telephone calls.

Jurors heard Blankenship talking with a variety of former Massey executives – Chris Adkins, Baxter Phillips, and Mike Snelling among them – about the company’s stock prices, the best time for corporate officials to exercise stock options and the connection between stock price changes and Blankenship’s “personal wealth.”

In one call Blankenship cautioned Adkins that Massey’s stock price drops when corporate officials sell shares in the company.

“If executives are selling, it pushes it down because people think we know more than we do,” Blankenship said. “We just need to figure out some way to get their attention off the executive stock trade.”

Other calls included complaints from Blankenship and other Massey officials about recent inspection “blitzes” by the U.S. Mine Safety and Health Administration. The calls also, however, included Blankenship urging company officials to insert comments about Massey’s safety efforts into corporate financial statements and a remark from Blankenship – previously made public – that if it weren’t for MSHA Massey might “blow ourselves up.”

Blankenship on another call discusses his desire to curb the number of workers in Massey mines.

“I need to get 1,000 people off the payroll,” he says.

In another call in June 2009, Blankenship laments a memo from Massey insider Bill Ross, raising significant concerns about safety in the company’s operations.

“Its highly confidential,” Blankenship says. “I don’t really know what to do with it.”

Blankenship, the jury heard, told Snelling that the Ross memo “is worse than a Charleston Gazette article” and worries about what would happen if it were ever made public.

“If that was a fatal today or if we had one that would be a terrible document in discovery,” Blankenship said.

Also this morning, Assistant U.S. Attorney Greg McVey used questioning of Blankenship’s former secretary Sandra Davis to get into evidence a series of Blankenship emails, memos and reports to the Massey board.

In one instance Davis testified about documents that indicated Blankenship personally signed off on a press release issued after the Upper Big Branch mine disaster that assured shareholders that Massey did not “condone” safety violations. Prosecutors allege that statement was a lie and that Blankenship issued it to try to stop the company’s stock prices from falling after the April 5, 2010 explosion that killed 29 miners.

In another instance a top Massey official told Blankenship that five Massey mines had improved enough to be removed from a list targeted from tougher enforcement.

“A pleasant surprise” Blankenship wrote on the memo before sending it back. “I feared Upper Big Branch would not make it.”


And so it begins …


Photo by Joel Ebert

Maybe it seems longer, given more than four days of jury selection — with the public and press shut out of most of it — but the criminal trial of former Massey Energy CEO Don Blankenship is just getting started. Really.

One thing that will be interesting to do is to keep looking back at both the indictment of Blankenship and at the opening statements from both sides (we’ve posted a transcript here), and see what evidence has come in the supports what prosecutors and defense lawyers want jurors to believe.

We got a hint of some of the major testimony that prosecutors hope to offer when, in the midst of jury selection, the bombshell memo about the mine safety concerns of Massey insider Bill Ross were made public in a court filing by U.S. Attorney Booth Goodwin (who was, in fairness, just responding to an effort by defense lawyers to keep any mention of Ross out of the government’s opening statement). Not noticed by as many people, though, was the follow-up memo from Ross that prosecutors got into evidence late Friday.

Assistant U.S. Attorney Greg McVey spent a lot of time on Friday with Blankenship’s former secretary, Sandra Davis, on the stand. Prosecutors were using Ms. Davis to get into evidence memos like the ones about Ross’ concerns, but also a long list of other documents and recordings of Blankenship’s phone calls.  (Thanks to a legal effort by the Gazette-Mail and West Virginia Public Broadcasting, all of the exhibits are being publicly posted by the prosecutors and defense lawyers.  The Gazette-Mail’s Joel Ebert is making them all easy to sort through on our Blankenship Trial landing page here).

The Blankenship phone calls are fascinating evidence, giving prosecutors a rare chance to offer their evidence through Blankenship’s own voice. But don’t forget about all the memos and other documents that got into evidence on Friday. We’ll probably be hearing more about them as the trial progresses.

Jurors come back at 9 a.m. tomorrow.


Former Massey CEO Don Blankenship leaves the federal courthouse on Friday with his lead defense lawyer, Bill Taylor. Photo by Joel Ebert

A new motion filed today by defense lawyers for former Massey CEO Don Blankenship indicates that the government’s next witness is going to be David Hughart, a former longtime Massey official who previously pointed the finger at Blankenship.

Here’s part of today’s motion:

Defendant Donald L. Blankenship, through counsel, moves the Court for access to relevant portions of cooperating witness David Hughart’s presentence report and to the sealed portion of his plea hearing. The government does not oppose these requests. The defense also asks the Court to decide this motion expeditiously, because the government informed the defense after the court had recessed on Friday, October 9, 2015, that it intends to call Mr. Hughart as a witness on Tuesday, October 13, 2015.

Friday’s court session ended with prosecutors calling Sandra Davis, Blankenship’s former secretary, who helped them get into evidence a long list of memos, emails and reports — as well as those records of Blankenship’s telephone calls, some of which were played to jurors just before they went home for the three-day weekend.

Prosecutors had not finished their questioning of Davis yet, and defense lawyers still get to cross-examine her. But the new defense filing suggests Hughart may be next on the prosecution’s witness list.

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Witness discusses mine safety violations

Another morning update Ken Ward Jr. called in from federal court.

Testimony continued this morning with federal Mine Safety and Health Administration computer data analyst Tyler Childress, who testified about agency enforcement actions at Upper Big Branch.

Assistant U.S. Attorney Steve Ruby walked Childress through a long list of mines that produced similar amounts of coal or more than Upper Big Branch but received far fewer safety violations.

Defense attorneys objected to each of the data exhibits Childress testified about.

U.S. District Judge Irene Berger allowed the testimony.

Here’s an update Ken Ward Jr. called in from federal court this morning.

U.S. District Judge Irene Berger this morning agreed that jurors can hear most of the telephone call recordings that prosecutors want to use as evidence against former Massey Energy CEO Don Blankenship.

Berger ruled to exclude only three of the nearly two dozen phone calls that U.S. Attorney Booth Goodwin’s team wants jurors to hear.

Late Thursday, Blankenship’s defense lawyers made a last ditch effort to keep the phone calls that Blankenship himself recorded out of the case.

After Berger ruled from the bench this morning on the phone calls, testimony resumed in the trial with the government calling Tyler Childress, a computer data analyst from the federal Mine Safety and Health Administration.


Prosecutors seek to block ‘belt air’ argument

R. Booth Goodwin II

Federal prosecutors have just filed a new motion in the criminal trial of Don Blankenship, seeking to block the former Massey CEO’s defense team from talking about the controversial subject of “belt air.”

I’ve posted the motion here and this is a bit of what it says:

The defense has introduced argument and evidence in opening statement and cross examination on the proposition that the Mine Safety and Health Administration purportedly forced the Upper Big Branch mine (“UBB”) to adopt a ventilation plan that did not use “belt air.”

For those who don’t know, the term “belt air” refers to refers to air that is directed underground to ventilate worker areas through the same tunnels in which conveyor belts transport coal out of mines.

The topic came up both during defense attorney Bill Taylor’s opening statement on Wednesday and during defense cross-examination of the government’s mine safety expert, Tracy Stumbo. Taylor told jurors:

The MSHA plan was to completely revise the use of belt air and insist that the company stop using belt air to ventilate the longwall. And you will hear that the people at this mine were stunned in August of 2009 when they heard that MSHA was going to insist that they apply this new and first mine in Central App to do this.

And it — and when it, the company tried to make this work — and there are other features of the way the air
flows here — it wouldn’t work. MSHA insisted at one point that they make air go this way off the belt and made air completely stop …

… And you will hear that people from Massey went to MSHA and begged them, “Please don’t make us try to do this. We’ve never — we’ve been doing this safely for 20 years or more. You’re coming in here with a plan and a program that’s never been tried. We can’t make it work.” And, so, for a period of nine months

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Here’s another update Ken Ward Jr. called in from federal court this afternoon.

U.S. District Judge Irene Berger today sent the jury in the criminal trial of former Massey Energy CEO Don Blankenship home at 4 p.m. so she could hear a detailed argument from lawyers in the case over recordings of Blankenship’s phone conversations.

Blankenship’s defense team asked the judge late today to block prosecutors from playing those phone calls for the jury.

Berger heard about 30 minutes of arguments from the lawyers and then ended court for the day without an immediate ruling.

Here’s an update Ken Ward Jr. called in from federal court this afternoon.

Former Upper Big Branch miner Bobbie Pauley continued to testify this afternoon in the ongoing criminal trial of former Massey CEO Don Blankenship.

Questioned by Assistant U.S. Attorney Greg McVey, Pauley continued her discussion which began late this morning about safety problems she encountered working at Upper Big Branch.

Pauley described a ventilation underground at the mine as being reversed and said the airflow was frequently inadequate.

“We had very little air,” she said. “We always had problems with our air.”

Pauley also testified that mine management told her and other workers to cheat the system meant to detect whether miners were exposed to illegal levels of coal dust that causes black lung disease.

“There were times we were supposed to be wearing them (dust monitors) when they were placed…in other areas so the tests would come out cleaner,” Pauley said.

Pauley gave jurors a list of a half-dozen mine managers who she said instructed her while working as a dispatcher to warn underground employers when government inspectors arrived on site.

Pauley said a security guard would radio the dispatcher’s office when inspectors arrived and she would use a mine phone to pass that information to workers underground.

“We knew from the time they came through the main gate they were coming up the hill,” Pauley said.

She said when she worked underground and received similar such warnings she would help fix any violations before inspectors could see them.

“You made sure that you were legal,” Pauley said. “You would shut down the section and start doing the things you should have been doing.”

Cross examined by defense lawyer Blair Brown, Pauley said that Blankenship did not personally tell her to provide advanced notice when inspectors arrived.

Pauley though also testified that she had never talked to Blankenship before the Upper Big Branch explosion.

By mid-afternoon Pauley had completed her testimony. The judge gave the jury its typical afternoon break and court was expected to continue with the next government witness.


We’ll have a story online now with some of the initial testimony of Bobbie Pauley, the first in a parade of former Upper Big Branch coal miners who are expected to testify for the government in the criminal trial of former Massey Energy CEO Don Blankenship.

Pauley took the stand shortly before U.S. District Judge Irene Berger sent the jury out for its daily lunch break. After the jurors left, lawyers for both sides huddled privately with the judge at her bench — a site that is becoming frequent even in the early days of the trial.

Earlier this morning, government expert witness Tracy Stumbo spent the second half of the morning under cross-examination by James Walls, one of the defense attorneys for Blankenship.

Walls took Stumbo back through many of the photographs that he testified about  on Wednesday during direct examination by Assistant U.S. Attorney Steve Ruby.

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