This post is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.
The government filed two responses to motions from the defense today.
The first was the government’s reply to the defense’s motion for relief from late discovery.
This essentially is a response to a document the defense filed on Sept. 30.
In that filing, the defense argued the material – which included a disk containing thousands of pages of daily violation reports, minutes from 16 Massey Energy board meetings, transcripts of 36 excerpts of audio recordings, 230 photographs, 22 enumerated Securities and Exchange Commission filings, three spreadsheets which featured compensation of Massey and Alpha Natural Resources employees – the government provided in recent days should have been produced in discovery.
“The latest of these deliveries appeared at approximately four pm this afternoon, scarcely hours before jury selection is to begin,” the defense wrote. “The problem is at this time the defense cannot tell wheat from chaff and without relief we will not be able to provide constitutionally effective representations.”
According to the government’s newly filed response:
The bulk of these (documents) are nothing more than certified copies of documents that have in Defendant’s possession since at least December.”
The government notes the SEC filings were produced to the defense in December, before adding:
“There are portions of Defendant’s own secret recordings of his phone calls, which similarly have long been in the possession of the defense.”
The government ultimately concludes:
None of these materials should come as a surprise to Defendant, and no relief is warranted on account of them, particularly since Defendant now has had several days to review them.”
The second document filed today by the government was a reply to the defense’s attempts to block the government from using Massey Energy’s U.S. Mine Safety and Health Administration citations as evidence in the trial.
In their argument, the defense says the government plans to use the citations and records as evidence but does not plan to call the inspectors who wrote them as witnesses.
Blankenship’s attorneys say the MSHA citations forms are hearsay.
In their newly filed reply, the government admits that it plans on using MSHA citations issued at the Upper Big Branch mine during the period of time outlined in Blankenship’s indictment.
“The citations are public records and will be authenticated as such throughout the testimony of a MSHA record custodian,” the filing says.
The government argues the citations are not hearsay “because they will not be offered to prove the truth of the matters asserted in the citations. Rather, the citations prove notice, willfulness, motive, materiality, state of mind, and demonstrate the nature of the relationship between Defendant’s Massey and MSHA.”
The government also speaks to the possibility of the citations being hearsay, saying, “Even if the Court deems the citations hearsay, they are admissible as exceptions to the hearsay rule.”
The rule states MSHA inspectors are not “law enforcement personnel” and the citations were made as part of the inspectors’ legal duty to provide a report on the conditions of a mine.
The government also argues that the sheer number of citations – 835 to be exact – indicates the conditions present at the Upper Big Branch mine, prior to the April 5, 2010 explosion.
As far as calling the inspectors forward as witnesses for the case – the government says having all 28 inspectors who issued the 835 citations would “drastically and unnecessarily prolong the trial.”
The government finally attempts to cut down the defense’s objections by noting that the defense has asserted that the MSHA citations have “inadmissible legal conclusions that a law has been violated.”
“Any implication of a legal conclusion can be cured with a limiting instruction. If the Court grants Defendant’s motion and requires the United States to put on as witnesses the inspectors who issued every one of the approximately 835 citations, these witnesses will testify exhaustively to the deplorable conditions they observed at UBB that formed the predicate of their observations recorded in the citations, and not any legal conclusions that laws were violated, and the jury could be instructed accordingly.”
For all the aforementioned reasons, the government is asking the Court to deny the defense’s motion to exclude the MSHA citations.