Coal Tattoo

Transcript of opening statements

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

The Gazette-Mail and West Virginia Public Broadcasting worked together to purchase the transcript from yesterday’s opening statements.

I just received the document – which you can read here.

Assistant U.S. Attorney Steve Ruby’s statement begins on page 4.

Defense attorney Bill Taylor’s statement begins on page 38.

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

A mine safety expert for the federal government continued testifying this morning as the criminal trial of former Massey Energy CEO Don Blankenship entered into the second day.

Longtime Kentucky state mine investigator Tracy Stumbo explained to jurors how mine companies must build various structures underground to direct clean air from mine fans and separate it from dirty air contaminated with methane or coal dust.

Stumbo described one type of structure called an overcast, which carries clean air in one tunnel over an intersection with another tunnel that contains dirty air.

“Its just a way to let the air come up over the track,” Stumbo testified. “Its an intersection just like you’d have over a road.”

Stumbo also explained the process that mine examiners, or firebosses, are supposed to use to check mines for potential hazards.

“They’re looking for anything unusual, anything hazardous,” Stumbo said. “Things can change in a minute in a coal mine. Many things can happen.”

Also this morning the front row of the courtroom was filled with a handful of family members of the miners who died in the Upper Big Branch Mine disaster.

Stumbo said that as underground mines dig further and further, expanding into many miles of tunnels, it takes more workers to check for safety hazards and fix any that are found.

“You’ve got to have several people working on ventilation, several people rock-dusting every day in these large mines,” Stumbo said.

As Assistant U.S. Attorney Steve Ruby began to ask Stumbo about a huge map of the Upper Big Branch Mine, Blankenship got up from the counsel table and walked across the courtroom so he could see the map, eventually taking a seat immediately next to the jury box.

US Attorney to display trial evidence on website

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

The U.S. Attorney’s office just sent over the following press release:

Pursuant to the Court’s directive in the case of United States v. Blankenship, all government exhibits admitted into evidence and published to the jury will be made available to the press and the public no later than 9:00 a.m., the day after admission and publication of the exhibits.  The exhibits will be posted to a link on the website of United States Attorney Booth Goodwin at

This post is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr. The following post was written (longhand) by Ken.

Testimony began this afternoon in the criminal trial of former Massey Energy CEO Don Blankenship.

Prosecutors opened their case with testimony from Tracy Stumbo, a retired longtime Kentucky state mine safety investigator hired by the government as an expert witness.

Stumbo first gave jurors a tutorial on coal, explaining what it is used for and some basics on how it is mined.

Being questioned by Assistant U.S. Attorney Steve Ruby, Stumbo demonstrated with a small model how a continuous mining machine works.

Stumbo and Ruby also showed jurors a short video clip of a working continuous mining machine.

With another sketch, Stumbo explained to jurors the criss-cross, grid pattern of a room-and-pillar mining section.

The following are notes from Joel: 

Stumbo also showed jurors a display, which was put on a large TV screen inside the courtroom, of how longwall mining is performed. Ruby also handed the retired investigator a bright yellow piece of machinery used in the longwall mining process to further show how it is done.

There were significantly less audience members listening to Stumbo’s testimony than there were hours earlier during the opening statements of the trial.  Alex Macia, an attorney at Spilman, Thomas and Battle, who is helping represent Blankenship, was among the audience members for both the morning opening statements and Trumbo’s testimony.


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

This morning the court filed three documents – two pertaining to voir dire and one memorandum opinion on the defense’s Sept. 24 motion to transfer the trial to another district.

The voir dire summary from today notes the following: 160 jurors reported, 76 jurors were excused for cause, 20 jurors were struck by counsel, 49 jurors were unused and 15 jurors were selected.

Once the jurors filed into the courtroom we could see the jury consisted of 11 women and 4 men.

Turning to Berger’s response to the defense’s motion to move the trial, the judge ultimately concluded the motion should be denied.

In her response, Berger noted that although the government had not filed a response to the defense’s motion and that the government’s previous filing on the subject (dated Feb. 27, 2015) remained relevant.

Berger wrote:

“The United States argued that the level of pretrial prejudice to the Defendant in this district was insufficient under Supreme Court precedent to mandate transfer of this case to voir dire. It instead urged the Court to follow the “near-universal” rule that  a change of venue is only required if voir dire proves “that an impartial jury cannot be empaneled.”

Berger then notes after a review of the parties’ pleadings – which include exhibits and reports – that the “Defendant’s arguments surrounding presumed prejudice to be unavailing.”

She continued:

“While the Defendant has pointed to the large volume of media coverage across many outlets, this is not enough.”

She cites a court case in which it was determined that the volume of publicity alone does not preclude a defendant from a fair trial, then adds:

“Further, the Court finds that the articles referenced were not highly inflammatory nor factually inaccurate.”

Discussing the media coverage of Blankenship and the Upper Big Branch mine disaster, she cites the defense’s concerns that comments associated with news articles found on the Internet reveal that some people seemingly believe Blankenship is on trial for the explosion and the resulting 29 deaths at the mine (which is NOT what he is on trial for).

She says:

The articles themselves do not state that the Defendant is on trial for murder or that he caused the explosion, but instead, social media comments by readers of the article suggest that is the case.”

Berger also notes that although the Blankenship case has been high profile, it has not received more publicity or inflammatory comments than other major federal cases, such as last year’s water crisis.

Berger also brings up the “documentary” Blankenship made following the Upper Big Branch mine explosion, noting that the defense pointed to the documentary as motivation for the government for the charges against Blankenship.

“It is uncontested that this video, produced by the Defendant, “invited media attention,” and combined with the indictment, created a media spotlight, particularly in light of the Defendant’s declarations of innocence and perceived victimization. The Fourth Circuit has stated that “a defendant should not be allowed to manipulate the criminal justice system by generating publicity and then using that same publicity to support his claim that the media attention surrounding his case created a presumption of prejudice.”

Berger finally notes that moving the trial to a different venue might not make a difference given the fact that the Upper Big Branch mine explosion was covered by national media outlets including the Los Angeles Times, the Wall Street Journal and the New York Times.

“Although the Southern District of West Virginia is “coal country,” it is not the only coal-producing region in the United States, and certainly not the only region where the trial of a former CEO of a public company would attract media attention.”

Berger finally notes how she’s attempted to remain vigilant in ensuring the jurors selected do not have a bias. She cites the gag order she placed during the early months of the trial, which was ultimately overturned by the Fourth Circuit, before ultimately concluding:

The Defendant has failed to establish that prejudice should be presumed. Thus, voir dire should ensue.

To read Berger’s 6-page order denying a change of venue, click here.

Early morning update

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

It is very unclear what is happening this morning at this point. When I went to the courthouse just before 8 a.m. a lot of jurors were filing in.

As usual Blankenship arrived around 8:30. But instead of taking his usual route from the office of Spilman Thomas & Battle (up Goshorn St.), Blankenship and two of his lawyers – William Taylor and James Walls – walked on Truslow St.

When I came back to the office I wanted to find out how we are going to be obtain the trial exhibits each day. I called the clerk’s office who directed my inquiry to U.S. District Judge Irene Berger’s judicial assistant Karen Sword.

Sword told me that she believes the media will have to go to the defense and prosecuting attorneys each morning to obtain the trial exhibits. I told her that didn’t seem right and she agreed to check with the judge and call me back.

As of this writing I have not heard from her.

In addition, we are also trying to obtain a copy of the transcript from last night’s closed door meeting with Berger and the attorneys.

Between last night’s closed door discussion on several important motions related to the case and the fact that the media has continued to not have access to the proceedings things have gotten off to a bumpy start, to say the least.

UPDATE: 1:38 p.m.

Ken and I talked to both U.S. Attorney Booth Goodwin and defense attorney William Taylor about the trial exhibits.

Goodwin indicated they would post the government’s exhibits on the U.S. Attorney’s website.

Taylor said he was uncertain as to exactly how they would be providing the media with documents. We plan to continue to follow up with Taylor on this subject.


Don Blankenship arrives at federal court on Oct. 7. Photo by Joel Ebert
Don Blankenship arrives at federal court on Oct. 7. Photos by Joel Ebert

Previously unknown documents posted

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

One day after I called the clerk’s office and Judge Irene Berger’s office wondering where document 405 and 409 were, they appeared in the court’s system.

Because they did not previously appear in the system, we had no idea if they were sealed documents or anything else.

This morning both documents were added to the Blankenship trial’s document history.

Here’s 405, which you can see was filed last Friday.

10/02/2015 405 SEALED ORDER as to Donald L. Blankenship; directing that the Transcript of Voir Dire 402 be filed under seal. Signed by Judge Irene C. Berger on 10/2/2015. (cc: Judge,) (tmr)

The filing mentions document 402, which is the transcript from the first day of jury selection.

Here is 402, which was previously listed in the case’s document history:

10/02/2015 402 TRANSCRIPT OF VOIR DIRE as to Donald L. Blankenship held on October 1, 2015, before Judge Irene C. Berger. Court Reporter Lisa Cook and Mary Schweinhagen. (lac) (Modified docket text to add court reporter’s name on 10/2/2015) (klc). Modified document security on 10/2/2015 (cbo).

Interesting to note the final line of the entry – Modified document security. That was added after the transcript was temporarily available at the clerk’s office on Friday, which resulted in this story.

The second recent filing that was previously unlisted was document 409.

Here is the entry:

10/04/2015 409 MOTION to Seal Motion as to Donald L. Blankenship (Attachments: # 1 Proposed Order, # 2 Motion, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3) (Brown, Blair)

It is unclear what this document is exactly but it, along with the aforementioned ones, are unable to be viewed by the public.

The latest court filing – 416 – grants the defense’s request to seal document 409.

10/06/2015 416 SEALED ORDER as to Donald L. Blankenship; granting 409 MOTION to Seal Motion as to Donald L. Blankenship. Signed by Judge Irene C. Berger on 10/5/2015. (cc: Judge, USA, counsel, deft) (skh)

Following the addition of documents 405 and 409 in the document history, that leaves 21 documents unlisted.

I’m not sure if our questioning or mention of 405 and 409 resulted in them being posted but while we’re at it, I’m still wondering what the following documents are: 21, 27, 36, 37, 38, 172, 225, 252, 253, 254, 281, 292, 301, 302, 366, 367, 370, 374, 379 and 400.

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

Jury selection resumed for a fourth day this morning in the criminal trial of former Massey Energy CEO Don Blankenship.

Media representatives, including a growing number of national outlets, were again barred from the courtroom.

At times this morning, audio from U.S. District Judge Irene Berger’s questioning of potential jurors could be heard in a separate courtroom where spectators were allowed.

Several court staff scrambled to determine which microphone in the courtroom was turned on.

Friday’s voir dire transcript not posted

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

As jury selection continues with the Don Blankenship trial, there’s something to note about the latest filings.

It appears there may be some filings that are not posted in the court’s system.

The court system provides a document number for every single document associated with a case. The documents generally are given a number as they are filed.

For example document a document filed recently has a higher number than a document filed two months ago.

Looking at the most recently filed documents, two are missing – documents 405 and 409.

As of this posting, the court has not filed a voir dire transcript from Friday’s jury selection process.

After the incident that occurred last week – when Thursday’s voir dire transcript was temporarily available on a public computer in the clerk’s office – one wonders whether or not one of the missing numbers (405 or 409) could be the voir dire transcript.

This isn’t the first time a document number has been skipped in the Blankenship filings.

By my count, there have been 23 document numbers that have been skipped.

It is possible the document numbers that don’t appear could be trial subpoenas or something to do with the grand jury. There is no real way to find out what these potential documents are.


When I contacted the clerk’s office, they directed my inquiries into the missing documents to Karen Sword, a judicial assistant for Judge Irene Berger.

Sword said although she was not sure why document 405 or 409 were available in the court’s system, she said it is possible they are sealed documents.

When I pointed out that sealed documents normally have a motion from one of the parties (prosecution or defense) and that is listed in the court’s system, Sword said documents can also be sealed by the Court.

Sword did not know whether either potential document 405 or 409 were copies of Friday’s voir dire transcript.

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.

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

Jury selection resumed this morning in the criminal trial of former Massey Energy CEO Don Blankenship.

It was another court session scheduled to begin at 9 am at the Robert C. Byrd United States Courthouse in Charleston.

U.S. Marshals did not allow members of the media and other specators upstairs in the courthouse until 9:45 a.m.

The public remains barred from the courtroom where jury selection is occurring.

United State District Judge Irene Berger again questioned jurors at the bench with the sound muted to a video feed which was fed to a separate courtroom where spectators were permitted to watch.

Don Blankenship at federal court on Oct. 5 arrives as jury selection continues for the third day.
Don Blankenship at federal court on Oct. 5 arrives as jury selection continues for the third day. Photo by Joel Ebert
Mine Explosion

Maybe it seemed like a good idea at the time, back in February:

Former Massey Energy CEO Don Blankenship sued Alpha Natural Resources this week, alleging that the company has reneged on an agreement requiring Alpha to pay his mounting legal costs — already more than $3 million — to defend against a major criminal indictment alleging that he orchestrated safety violations at Massey’s Upper Big Branch Mine prior to an April 2010 explosion that killed 29 miners.

Blankenship filed the new legal action Thursday, just one day before Friday’s deadline for pre-trial motions in the criminal case against him in U.S. District Court, in Beckley. That trial is scheduled to start April 20.

Blankenship alleges that Alpha — which bought Massey in June 2011 — informed him in late January that the company would not cover the legal fees and costs incurred in his defense against the four-count indictment that charges him with mine safety and securities violations.

“The defendants recently reneged on their agreements for mandatory advancement of the plaintiff’s attorneys’ fees and expenses, a development which has threatened his ability to mount a defense,” Blankenship’s lawyers say in their filing.

And Blankenship probably was pretty pleased with the official outcome, when a Delaware judge ordered Alpha to pay up — at the time the former Massey CEO’s legal bills, as of April 1, were nearly $6 million.

But given what we know now, you have to wonder if Don Blankenship will end up regretting that legal fees lawsuit. As we reported on Sunday in the Gazette-Mail, a potential new witness against Blankenship surfaced in that Delaware case.  And according to a Sunday night legal filing (detailed here in today’s Gazette-Mail), this new witness — former Massey ventilation expert Bill Ross — could provide prosecutors with remarkably strong testimony in the trial:

Less than a year before the Upper Big Branch Mine Disaster, then-Massey Energy CEO Don Blankenship was warned by one of Massey’s top safety officials about serious problems at his company’s operations, according to a new memo that surfaced earlier this year and now is among the key evidence prosecutors hope to use to prove criminal charges against Blankenship.

The June 25, 2009, memo to Blankenship from then-Massey lawyer Stephanie Ojeda summarized the safety concerns being raised by Bill Ross, a former U.S. Mine Safety and Health Administration official who had left MSHA for a job as a top mine ventilation expert for Massey …

Ojeda wrote that the memo was a report of a meeting she held with Ross and Suboleski on June 17, 2009, to discuss safety violations Massey operations were receiving. Ross had talked to a variety of Massey miners and became extremely concerned.

“Bill has often heard in his travels around Massey, ‘We have been told to run, run, run, no matter what. We will fix it when they find it,’ ” the memo from Ojeda says. “Bill explains that this is no way to run a coal mining business. When we receive one violation, it means that we have failed.”

Continue reading…

Blankenship seeks to limit government’s opening

Mine Explosion Congress

Lawyers for former Massey CEO Don Blankenship filed an interesting motion  this afternoon. Here are the basics:

Defendant Donald L. Blankenship respectfully requests that the Court limit the government’s discussion of William Ross in its opening statement to clearly admissible evidence and to preclude any discussion about what Mr. Ross may say unnamed persons told him.

Readers who checked out our Gazette-Mail story this morning may have some clue what this is about:

Since the indictment, additional evidence has emerged about Blankenship from a Delaware lawsuit that Blankenship himself filed to successfully seek to force Alpha Natural Resources, which bought Massey in June 2011, to pay the costs of Blankenship’s legal defense in the criminal case, which, through April 1, amounted to nearly $6 million.

Alpha officials argued in that Delaware case that they did not have to pay Blankenship’s legal costs because they had determined that “Mr. Blankenship had reasonable cause to believe his conduct was unlawful.”

During a trial in early April, several Alpha officials testified about a report that recounted the concerns that Bill Ross, a former MSHA official and Massey safety official, raised about safety at Massey operations.

UPDATED: We have much more on this story on the Charleston Gazette-Mail website tonight.

The Blankenship team’s motion explains:

We understand that the government expects to call Mr. Ross to testify about (a) conversations he had with two Massey executives that were memorialized in a memorandum forwarded to Mr. Blankenship (b) a memorandum he drafted for Mr. Blankenship and (c) a conversation he had with Mr. Blankenship. The parties can make available in camera the relevant documents.

Continue reading…

Out-computed: Blankenship, lawyers and laptops

Earlier this week, lawyers for Massey CEO Don Blankenship filed a motion asking U.S. District Judge Irene Berger to allow them additional computer equipment and cell phones in the courtroom for Blankenship’s trial. Apparently, the judge had tightened the local court’s typical rules — and told prosecutors and defense lawyers that each side got only one cell phone.

One cell phone just wasn’t enough for the defense — and U.S. Attorney Booth Goodwin’s office responded that they needed to be able to have just as many devices as Blankenship’s attorneys were allowed.

A secret transcript of Thursday’s court session included a discussion of this weighty issue.

Asked about his motion by the judge, defense lawyer Bill Taylor said, “Well, if you ask my children, they will say that they all need laptops and cell phones.”

Judge Berger responded, “I understand. Fortunately, we’re a little bit older.”

Berger then asked Assistant U.S. Attorney Steve Ruby about the government’s response to the defense motion. “We saw Mr. Taylor’s motion to bring in I think eight or nine laptops and we were … we were afraid we might be out-computed.”

The two sides appeared to eventually agree to Judge Berger’s suggestion that they get two laptops and one cell phone for each side.


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

Earlier today Blankenship’s attorneys filed a reply to the Gazette-Mail and West Virginia Public Broadcasting’s request for in camera voir dire.

In their reply, the attorneys say in order to ensure Blankenship’s right to a fair trial the media should continue to be prevented from hearing the proceedings.

“This is a case where prospective jurors likely harbor unfair prejudice against Mr. Blankenship. Closed voir dire is therefore necessary to ensure that such jurors may privately disclose their feelings about the case to the Court, without passing them on to other members of the venire.”

The attorney’s reply then provides details about the process that is currently underway, in which members of the public and the media are relegated to a separate courtroom and provided a video feed.

“The Court’s current approach to voir dire – individual questioning of each prospective juror at the bench with the husher on and a transcript recorded – ensures that each juror’s response is kept private from the other venire members and from the general public. It also permits the Court to accommodate the News Media Interveners’ interest in reporting on the conduct of voir dire by releasing a transcript of the proceedings, if it deems appropriate at some later date after the jury has been seated, with the jurors’ names and other identifying information redacted.”

The attorneys ultimately conclude the actions of preventing further access to the selection process as appropriate.

“There is no other reasonable alternative. The Court should continue with in camera voir dire and reject the News Media Interveners’ request for publicized voir dire.”

The attorneys also outline an alternative to the closure in their latest filing.

Their suggested solution: a recording a transcript of the proceedings which could be released at a later date.

Click here to read a copy of the letter the Gazette-Mail sent to Judge Berger yesterday.

In an apparent win for public and media access, U.S. District Judge Irene Berger has told lawyers in the Don Blankenship case that she will grant a motion from the Charleston Gazette-Mail and West Virginia Public Broadcasting for daily access to trial exhibits that are shown to jurors.

During a court session on Thursday morning, Berger noted that she had received the media motion, which referenced a 4th Circuit Court of Appeals ruling mandating such access to exhibits and said she wanted to comply with that ruling in Blankenship’s case.

The judge told prosecutors and defense attorneys that they should provide a copy of all exhibits for the media by 9 a.m. the day after those exhibits are used in court.

Also, Judge Berger told both sides that they had until the close of business today to file any response to the media motion asking that the jury selection be opened to the public and the press.

That’s all according to a review of a transcript of Thursday’s court session, which was briefly available for viewing on a public computer terminal at the clerk’s office at the federal building here in Charleston.

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

Some new information about yesterday’s jury selection.

According to a document filed yesterday and entered today, 88 jurors were present during yesterday’s selection process.

A total of 42 potential jurors were dismissed yesterday. In total, the day’s proceedings took 5 hours and 13 minutes.

Prior to the jury selection process, the court addressed “preliminary matters” before the jury was brought in.

Jury selection resumed this morning for the criminal trial of former Massey Energy CEO Don Blankenship.

Dozens of potential jurors filed into the Robert C. Byrd U.S. Courthouse in Charleston. News media and other spectators were again barred from the courtroom.

U.S. District Judge Irene Berger again kept turning off the audio for a video feed into a separate courtroom set aside for the public.

This morning, Blankenship could be seen on the video feed huddling at the judge’s bench during the jury questioning.

Court officials have refused to indicate how far along they are toward picking a 12-person jury to hear the case. Berger has not ruled on a motion by the Charleston Gazette-Mail and West Virginia Public Broadcasting to open the jury selection process to the public.

Don Blankenship arrives at federal court for the second day of jury selection. Photo by Joel Ebert



Gazette-Mail photo by Sam Owens

While the rest of us were wishing we could hear the jury selection process, former Massey CEO Don Blankenship‘s lawyers were busy, filing a new motion trying to have U.S. Mine Safety and Health Administration citations and orders blocked from being used as evidence in the trial.

Here’s their argument:

Defendant Donald L. Blankenship, by counsel, submits these objections to the admissibility of “Mine Citation/Order” forms written by MSHA inspectors at the Upper Big Branch Mine. MSHA citation forms record inspectors’ statements and findings about conditions and activity they observed in the mine and concerning violations of law. The government intends to admit the forms as evidence and not to call the inspectors who wrote them as witnesses.

The MSHA citation forms are hearsay — out of court statements of declarants, the MSHA inspectors. Fed. R. Evid. 801. And they are testimonial for purposes of the Sixth Amendment’s Confrontation Clause. They contain detailed factual descriptions and were written for use in adversarial administrative and judicial litigation that in this case includes criminal litigation. Admission of the citations in lieu of the inspectors’ testimony, therefore, would violate both Fed. R. Evid. 803(8), which excludes this kind of evidence, and also the Confrontation Clause, which assures defendants the right to cross-examine witnesses presenting evidence against them. As well, admission would be contrary to Fed. R. Evid. 704 because it would improperly place before the jury the opinion of an MSHA inspector that there has been a violation of law.

And here’s the full court filing:

Jury selection transcripts not publicly available

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

Today the Gazette-Mail attempted to obtain the transcripts from the day’s jury selection proceedings.

An initial conversation with Lisa Cook, the official court reporter for the Southern District of West Virginia, indicated we would be able to get the official transcripts later this evening – around 8 or 9 p.m.

Cook estimated the costs for the transcripts to be around $260 to $270. If we wanted the transcripts tomorrow morning, she said, the cost would go down to about $200.

We here in the newsroom were discussing paying for the transcripts and then received another phone call from Cook.

This time, Cook said, she had talked to U.S. District Judge Irene Berger about releasing the transcripts. Berger apparently told Cook that because the selection process and the transcripts produced would contain confidential information, the court would not be releasing them.