Coal Tattoo

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

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

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

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

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

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

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

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

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

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UBBPortal

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

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

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

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

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

Just imagine.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sen. Manchin said:

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

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

Sen. Capito said:

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

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

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

Blankenship’s politics, and looking ahead to trial

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Gazette-Mail file photo by Chip Ellis

Late last week, U.S. District Judge Irene Berger denied the latest effort by former Massey Energy CEO Don Blankenship to delay his day in court, making it seem even more likely that Blankenship will face trial starting with jury selection that’s scheduled to begin Thursday.

West Virginia Public Broadcasting kicked off a new trial podcast, and the first episode — featuring our friend Howard Berkes of NPR and Charleston lawyer Mike Hissam (a former prosecutor in Booth Goodwin’s office who worked in parts of the Upper Big Branch case) — provides some great commentary to help listeners prepare for the trial.

Meanwhile, my colleague David Gutman gave Gazette-Mail readers a glimpse at the long political shadow cast by Blankenship, with this story on Sunday:

Before last year’s elections, before he was indicted, one year before he would go to trial, West Virginia Democrats warned that Don Blankenship was trying to buy the state.

“Why are out-of-state billionaires trying to buy West Virginia?” one flier from the state party blared, next to pictures of Blankenship and the Koch brothers. “Only you can stop them.”

For Blankenship, at least, there’s no proof that allegation was true, and as a political strategy, it certainly didn’t work.

There is no record of Blankenship making any political donations in West Virginia in 2014, and Republicans made unprecedented gains — winning the statehouse for the first time in eight decades and winning every available congressional seat.

But those gains were engineered, in part, by Blankenship’s longtime personal aides and political operatives, who continue to hold outsize influence in state Republican politics. And, as Blankenship faces three felonies and up to 30 years in jail in perhaps the highest profile trial in West Virginia history, he still casts a long shadow over West Virginia politics.

Blankenship’s favored policies — lower taxes, anti-union measures, pro-business legal reform and the easing of coal industry regulations — have mostly been implemented, in part because as the state has shifted toward the GOP his ex-lieutenants have been successful in helping Republican candidates get elected.

There’s more pre-trial coverage to come.

We’re still waiting for Judge Berger to rule on a variety of things, including most importantly the “motions in limine” (see here, here and here) that will decide what is and isn’t allowed as evidence in the trial. And the judge has yet to provide many details about how she plans to handle jury selection, or if the public will be able to see what goes on during that process.  Also pending in Blankenship’s latest effort to convince the judge to move the trial from Southern West Virginia.

Don Blankenship: Waiting for the trial

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With just three weeks left before the Oct. 1 start of jury selection in the trial of former Massey Energy CEO Don Blankenship, the calls and emails from out-of-town journalists are on a little bit of an upswing.

National media outlets are looking for some tidbit of gossip or some shred of never-reported news that they can turn into an exclusive. All manner of freelancers and authors are hoping the local press has some inside information — Is the trial really going to go this time? When will they be done with this tiresome jury selection and get to the opening arguments? What’s the schedule for the best witnesses?

Personally, there’s part of me that would be more than happy if most of the media (and a lot other curious folks) stayed away. Of course, we want everyone to get their news from the Gazette-Mail. And it’s not that I don’t think the more-the-merrier isn’t really the case when it comes to stories about the coal industry’s real impact on West Virginia communities. But there’s a fine line where it can all become a bit of a circus. Let’s hope that isn’t what happens when Blankenship gets his day in court.

Still, there is an obvious role for the media to play. We’re supposed to inform the public about the workings of the courts and, in the process and through transparency, create more public confidence in our nation’s criminal justice system. We’re supposed to make sure that judges and prosecutors don’t abuse the rights of defendants. We’re supposed to make sure everyone in the system does their jobs.

Hopefully, the results of the media’s legal battle to overturn U.S. District Judge Irene Berger’s gag order in the Blankenship case has helped to serve those purposes. With almost all of the filings in the case now public record, we’ve been able to reveal to the public Blankenship’s argument that the case is all political, and provide readers with some preview and context for the sorts of evidence and legal arguments that will come up once the trial gets going (see here, here, here and here). And for you national media folks, yes, if you read the court filings on PACER (and we’ve been posting most of them online, linking to them in our stories, and providing anyone without a PACER account free access), there have been some fascinating new details that have come out about Blankenship and his way of running a coal company.

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Mine Explosion Congress

Late last Friday, the defense lawyers representing former Massey Energy CEO Don Blankenship filed a motion asking to keep the jury in Blankenship’s criminal trial from hearing any evidence about the April 5, 2010, mine explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.

We published a story that evening online and in the next day’s print edition about the filing, and I’ve posted the court document here.

One of the things I noticed initially about this filing was the little dig Blankenship’s lawyers got in about media coverage of the case:

Not only will every juror know about the UBB explosion, many jurors will bring to this trial the misimpression that this case is about Mr. Blankenship’s responsibility for the UBB explosion. That mistaken belief would have been formed and reinforced repeatedly by the media and interactions in the community. From day one, the local press has covered these proceedings, erroneously, as intended to determine Mr. Blankenship’s responsibility for the UBB tragedy.

The first story cited as an example of this “erroneous” reporting was a piece I wrote for the anniversary of the disaster.  It was headlined, “Upper Big Branch 5-Year Anniversary: Blankenship’s trial is focus of families,” and it says very clearly:

While the allegations against Blankenship focus on events at Massey’s Upper Big Branch Mine, in Raleigh County, prosecutors stopped just short of alleging the former CEO was responsible for the deadly explosion.

The other thing I noticed was that, while Blankenship’s defense team doesn’t want the jury to hear evidence about what happened at Upper Big Branch, they go to great lengths to insist that, if the subject comes up, they can convince jurors that Blankenship’s theories that those 29 miners died in a “natural disaster”:

… Evidence from the government regarding causation and responsibility for the UBB explosion would be met by strong evidence from Mr. Blankenship rebutting the government’s theories, leading to confusion about the actual issues and to undue delay – a satellite mini-trial about the cause of the UBB explosion and who is responsible for it. If the cause of the explosion is at issue in the trial, the defense is ready to present substantial, compelling evidence that the incident was actually a natural disaster.

It does make you wonder why, if their case on the cause of the disaster is so good, Blankenship’s lawyers wouldn’t want to just go right down that road at trial.

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blankenshiphearingleaving

Over the weekend, The New York Times published an interesting West Virginia Day offering:  A lengthy story about former Massey Energy CEO Don Blankenship. The story dug deep into the archives of various Blankenship controversies, and understandably made much about the big trial that’s coming up in October.

The story was what folks in the business call “a good read,” and obviously a lot of folks with a keen interest in all things Blankenship and in the pending criminal case (myself included) were posting the link and commenting on it through various social media outlets.

But gosh, the story got the number of counts and the potential sentence that Blankenship faces wrong, with the Times apparently being unaware of the superseding indictment that consolidated the charges into three felony counts and trimmed one year off what what was originally a 31-year maximum sentence.

Frankly, I was a little surprised that the Times did this particular piece, given that many of the same themes — especially how unusual it is in these parts for a coal CEO to be held accountable through a criminal trial — were covered in a previous piece the Times did shortly after the original indictment back in November 2014.

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Blankenship gets OK for dirt-track trip

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It looks like U.S. Magistrate Judge Clarke VanDervort has approved former Massey Energy CEO Don Blankenship’s request to go to Ohio to watch his adult son’s dirt-track race. I’ve posted a copy of the order here.

Among other things, Judge VanDervort noted that U.S. Attorney Booth Goodwin — who has vigorously opposed Blankenship’s request for trips to Las Vegas — did not file an opposition to this particular travel request.

Judge: Alpha must pay Blankenship’s lawyers

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Here’s the news, just posted by Bloomberg:

Massey Energy Co. must pay the legal expenses of former chief Donald Blankenship for his defense to federal charges stemming from the worst U.S. coal disaster in 40 years, a Delaware Chancery Court judge ruled.

Judge Andre Bouchard on Thursday granted Blankenship’s request to recover unpaid legal expenses, citing the terms of the company’s charter and its merger agreement with Alpha Natural Resources Inc.

And here’s the court ruling:

 

Blankenship seeks trip to Ohio dirt track race

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Former Massey Energy CEO Don Blankenship wants to take another trip — but this one isn’t to Las Vegas.

In a new motion filed late yesterday in federal court in Beckley, Blankenship’s lawyers explain:

Donald L. Blankenship, through counsel, hereby moves the Court for an order permitting him to travel to Sidney, Ohio, from Friday, June 5, 2015 through Saturday, June 6, 2015, to watch his son, a professional dirt track racer, compete in the 41st Annual Dirt Late Model Dream at the nearby Eldora Speedway.

Readers will recall that last week, Blankenship’s bid for another trip “home” to Las Vegas was rejected.  The former Massey CEO is currently free on $5 million bond, pending trial on mine safety and securities crime charges. He also continues to try to delay that trial, currently scheduled for mid-July.

Some readers may also remember that Blankenship’s son, John, is — as described in the new court filing — “an accomplished professional dirt track racer.”  John Blankenship “drives the No. 23 ‘Coal’ car,” the motion notes. Don Blankenship is president of Number 23 Inc., a Kentucky corporation that apparently supports his son’s racing career.

 

Blankenship wants another trip to Vegas

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The latest in the Don Blankenship criminal case is this new filing today, in which the former Massey CEO — free on $5 million bond pending trial — asks the court for approval for another trip to Las Vegas. The new filing says:

Mr. Blankenship respectfully requests permission to travel home to Nevada during the Memorial Day holiday, from May 23, 2015 through May 30, 2015, to attend to personal matters, including to visit a dentist and to meet with attorneys located there.

Blankenship’s proposals for travel have caused controversy in the case before, and now defense lawyers are pointing out:

Mr. Blankenship has not been home since Thanksgiving.

GOP leader pleased with UBB prosecutions

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Mine Explosion Congress

There was a fascinating little line in the opening statement given today by House Education and the Workforce subcommittee Chairman Tim Walberg, R-Michigan, at a hearing where lawmakers received an update on the administration’s mine safety efforts:

Upper Big Branch is a terrible reminder that bad actors will look for ways to cut corners and jeopardize the well-being of their workers, despite a moral and legal obligation to make safety the number one priority. I am pleased that those who had a hand in the Upper Big Branch tragedy are being held responsible. It is taking some time, but justice is being served.

These comments come, of course, as U.S. Attorney Booth Goodwin here in West Virginia prepares for trial on the criminal charges he and Assistant U.S. Attorney Steve Ruby have pursued against former Massey Energy CEO Don Blankenship.

And, the comments — coming from a Republican subcommittee chair in Congress — are particularly interesting, given how Blankenship’s defense team has tried to portray his prosecution as nothing more than an effort by Democrats to shut down a conservative critic.

Read all about the Don Blankenship case

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As we’ve done more stories (see here and here) about the legal filings in the Don Blankenship criminal case — unsealed thanks for a coalition of media organizations and our lawyers — I’ve tried to post and include links to many of those filings. But for those who want to dig in a little more, here are links to what are — at least for now — the most important filings, the various pre-trial motions filed by Blankenship’s legal team and the responses from U.S. Attorney Booth Goodwin’s office.

First, here are the original indictment and the superseding indictment. And for those who want to follow along, Blankenship’s legal team filed a helpful “Memorandum to the Court” that listed and numbered their pre-trial motions. I’ve actually posted the legal briefs in support of each motion, rather than the motions themselves, because the briefs are actually much more informative. I haven’t yet posted the defense replies to the government responses, I have added the defense replies to government responses, and but I hope to add those and other documents to this post as time permits. As you can see, several documents remain under seal, despite the 4th Circuit Court of Appeals order in our favor.

— Motion No. 1 — Motion to Disqualify This Court and All the Judges of the United States District Court for the Southern District of West Virginia.  Response from the government. Defense reply brief.

— Motion No. 2 — Motion to Revoke Order of Reference to Magistrate.  Response from the government. Defense reply brief.

— Motion No. 3 — Motion to Transfer to Another District for Trial (STILL UNDER SEAL). Response from the government. Reply brief by defense is SEALED.

— Motion No. 4 — Motion to Dismiss for Vindictive and Selective Prosecution of Donald L. Blankenship for Exercising His First Amendment Rights. Response by the government.  Defense reply brief.

— Motion No. 5 — Motion to Dismiss for Improper and Misleading Conduct before the Grand Jury (This document, number 84 on the court docket, was initially unsealed after the 4th Circuit ruling, but is no longer available on the court’s PACER system). Response by the government (STILL UNDER SEAL). Defense reply brief.

— Motion No. 6 — Motion to Dismiss Count One for Failure to State an Offense. Response by the government. Response by the government to defense MOTIONS 6-15. Defense reply brief.

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More on WVU, Gordon Gee and Massey Energy

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It’s WVU Day up at the statehouse, so I guess we’ll be treated to a lot of “selfies” of university President E. Gordon Gee. But there’s a timely report out from West Virginia Public Broadcasting, in which someone from our state’s news media finally questions Gee about his history and relationship with Massey Energy and indicated former Massey CEO Don Blankenship.

Public Broadcasting’s Scott Finn asked Gee to comment on the four-count indictment that alleges his old friend led an effort to violate safety laws, thwart government inspections, and then lie to securities regulators and the investing public at the Upper Big Branch Mine, where 29 workers died in an April 2010 explosion (recall that Gee had not only served on Massey’s board, but on that board’s safety and environment committee — well, that is, he did, before he resigned those posts under pressure from environmental groups and Ohio State students).

Scott asked him:

Dr. Gee I know you’re not just concerned about student safety, but worker safety as well. Until you resigned from the Massey Energy Board of Directors in 2009, you served as chairman of their Safety, Environmental and Public Policy committee. In light of that, what’s your reaction to the federal indictment of former Massey CEO Don Blankenship in relation to the Upper Big Branch Mine Disaster.

Gee responded initially:

Well, you know, obviously, I think all of us who were every involved in mining in this state, and I certainly was, believe that the safety of our workers is the number one priority.

But Gee dodged any comment on the indictment, saying:

… It is probably inappropriate for me to comment on the indictment itself because I’m not engaged in it, I’m not familiar with it. I think this is a matter for the federal courts and a matter for them to resolve.

Scott pressed on, noting the findings of Davitt McAteer’s report on Upper Big Branch — that Massey Energy had a terrible safety culture, one McAteer’s team described as “the normalization of deviance,” and asked Gee:

I know you care deeply about safety, what do you think kept you and the other Massey board members from understanding the depth of the safety problems.

But here’s what else he had to say, according to the Public Broadcasting story:

“During my service on the Massey Board, that was clearly the focus on our board, was on safety and safety measures,” Gee said …

Gee said that safety was “always our number one concern” during his time on the board, and that they were “working very hard to solve the problems we had,” he said.

“These are large companies. I ran Ohio State University, which is the largest university in the country, and West Virginia University, which is one of the very large, complex institutions, and I don’t know everything that goes on there. So you have to have that sort of trusting relationship of having good people doing good things,” Gee said.

For the record, Gee was one of the named defendants in a lawsuit against Massey officials over safety conditions that were supposed to have been remedied under an earlier settlement, but — judging from the 29 dead bodies at Upper Big Branch — were not. Alpha Natural Resources, which bought Massey, settled that suit for $265 million. And U.S. Attorney Booth Goodwin had said in court records that former Massey executives and board members “may be or may become” targets in his office’s criminal investigation.

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MSHA cites gag order in denying UBB FOIA request

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Regular readers know, of course, that The Charleston Gazette and a collection of other media outlets have been challenging a gag order issued by U.S. District Judge Irene Berger blocking public access to most of the court record in the criminal case of former Massey Energy CEO Don Blankenship.

Well, now we’ve got an interesting new twist on the impacts of Judge Berger’s secrecy.

Since March 2012, I’ve been waiting for the U.S. Mine Safety and Health Administration to get around to responding to a Freedom of Information Act request I filed following the release of MSHA’s “internal review” of its own actions at the Upper Big Branch Mine, where 29 miners died in April 2010.  Among the things I was most interested in were copies of the transcripts of the interviews done by the MSHA internal review team.

Well, I got my answer … MSHA says it is withholding those records, citing “an order issued by a United States District Judge prohibiting the release of any documents in the media or any other entity regarding the facts or substances of the criminal case involving Donald L. Blankenship.”

MSHA cites Federal FOIA Exemption 7(A), which it says “protects records of information compiled for law enforcement purposes when production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings.”  The agency also cited Exemtion 7(B), which it said, “permits the withholding of records or information compiled for law enforcement purposes when disclosure would deprive a person of a right to a fair trial or an impartial adjudication.”

In a similar response to another FOIA — this one seeking information about the agency’s practices regarding enforcement on the prohibition of advance notice of inspections — MSHA again cited the gag order in the Blankenship case.

Media challenges Blankenship case gag order

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For Coal Tattoo readers who have been asking if the local or national press would challenge the broad gag order issued by U.S. District Judge Irene Berger in the Don Blankenship criminal case, here’s the answer:

The Charleston Gazette and four other news organizations today urged a federal judge to withdraw a gag order that has blocked access to court records in a criminal case filed against longtime Massey Energy CEO Don Blankenship.

Joining in the legal action in federal court in Beckley were the Gazette, The Wall Street Journal, The Associated Press, National Public Radio and the Friends of Public Broadcasting.

The media coalition asked U.S. District Judge Irene Berger to reconsider her order, which also prohibits parties in the case, potential trial witnesses, and potentially families of the victims of the Upper Big Branch Mine Disaster from talking to the media.

I’ve posted a copy of the legal filing by media lawyer Sean McGinley here.

Gag order in Blankenship case criticized

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Mine Explosion Congress

We reported in in yesterday’s Gazette about U.S. Magistrate Judge R. Clarke VanDervort refusing a request from longtime Massey Energy CEO Don Blankenship to delay his arraignment on the criminal indictment filed against Blankenship last week. But we weren’t able to explain why the judge did so. If you go to the U.S. District Court for the Southern District of West Virginia‘s PACER computer page, and try to download the judge’s order, this is what you see:

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It’s a bit ironic that PACER stands for “Public Access to Court Electronic Records,”  given that records of the U.S. vs. Blankenship are anything but public. Even the indictment — which was initially posted publicly and distributed via email by U.S. Attorney Booth Goodwin’s office, has been removed from public view. Goodwin’s office, apparently worried about violating the judge’s gag order, removed both its press release — a document that merely quoted the indictment and didn’t include any direct quotes from Goodwin — and the indictment from its website. We’ve posted the press release here and the indictment here.

judgebergerIn fact, even U.S. District Judge Irene Berger’s gag order isn’t available to the public through PACER. The clerk’s office in Beckley did finally email copies of it to local media outlets, and we’ve posted it here.  These two sentences — which contain no citations to case law allowing such a gag order — are the only explanation we have of the judge’s action:

The Court observes that the Defendant and the matters which are referenced in the indictment have been the subject of publicity. After careful consideration and in light of the prior publicity, the Court finds it necessary to take precautions to insure that the Government and the Defendant can seat jurors who can be fair and impartial and whose verdict is based only upon evidence presented during trial.

It’s worth noting that neither the government nor Blankenship’s defense team asked for this gag order. The judge did it on her own. And now, she’s taking some criticism for it.

In an editorial that generally praised the government for pursuing this prosecution, the Lexington Herald-Leader said:

The judge’s stated concern is that potential jurors will be biased by pre-trial publicity. But seating an impartial jury can be accomplished without trampling the First Amendment rights of individuals to speak and the media to report the news.

Transparency is especially critical to public trust in the prosecution of Blankenship because of his history of influencing the courts.

Blankenship in 2004 spent $2.5 million on electing a judge to the West Virginia Supreme Court who then cast deciding votes in Blankenship’s favor in a potentially expensive lawsuit, a ruling the U.S. Supreme Court eventually overturned.

Berger should revoke the gag order.

And over at West Virginia MetroNews, Hoppy Kercheval wrote a commentary headlined, “Judge Berger’s gag order in Blankenship case goes too far,” in which he wrote:

Berger is in a tough spot. She’s presiding over a high profile case. Blankenship faces four charges connected with the operation of the Upper Big Branch mine in Raleigh County where 29 miners died in a 2010 explosion.

The disaster, and Blankenship himself, have been the subject of intense public interest, and thus extensive press coverage.  If the case comes to trial it will draw national attention. Still, West Virginia Press Association executive director Don Smith believes the judge overreached.

“We certainly understand Judge Berger’s position and her concerns about seating a jury, but locking down all the information, all the court records… that goes too far,” Smith told me on “Talkline” Tuesday.

Hoppy continued:

More practically speaking, the gag order in the Blankenship case won’t stop pre-trial coverage, but it may distort it, says the First Amendment Center’s Gene Policinski. “It’s going to take the most informed people out of the discussion,” Policinski told me. “You’re condemning the public to less informed, but not less voluminous coverage.”

Trials, and proceedings leading up to them, are public, with some limited exceptions. That’s guaranteed in the Sixth Amendment, and for good reason. The bright light of openness helps preserve and protect public confidence in the judicial system.

Irene Berger is an experienced and respected adjudicator on the federal bench. Her desire to conduct a fair and impartial proceeding in this case is unquestioned. However the judge should have the same level of respect for the press and the public’s ability—and their right—to follow the Blankenship case unfettered.

5 more things about the Don Blankenship indictment

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Gazette file photo by Chip Ellis

There’s been a lot written already about the indictment of longtime Massey Energy CEO Don Blankenship (see here, here, here and here for Gazette stories), but there are a few things that readers may have overlooked and are worth knowing:

1.  Prosecutors did not charge Blankenship with actually causing the April 5, 2010, explosion that killed 29 miners at Massey’s Upper Big Branch Mine.

Certainly, the 43-page grand jury indictment mentions the mine disaster, and it alleges that Blankenship was personally an “operator” of the mine who took part in a conspiracy to violate key safety standards that four different investigations (see here, here, here and here) said led to the explosion. But U.S. Attorney Booth Goodwin and Assistant U.S. Attorney Steve Ruby stopped just short of blaming Blankenship, of alleging that blowing up the mine was one of his crimes.

Doing so avoids any eventual criminal trial turning into a “battle of experts,” and may remove some of the ability of Blankenship’s defense team to trot out his much-promoted theory that the explosion was basically an “act of God,” caused by an unforeseeable inundation of natural gas.  Also, U.S. District Judge Irene Berger has not exactly been impressed thus far with the testimony of U.S. Mine Safety and Health Administration witnesses in previous Upper Big Branch cases (see here and here), and in at least one previous coal-mining disaster cases, the MSHA experts on explosions certainly could have done better.

2.  Financial crimes carry much longer maximum sentences than those for violating workplace safety standards.

Most news reports made clear that the total maximum sentence Blankenship would face if convicted on all four counts of the indictment would be 31 years. Of course, that’s the statutory maximum, and if doesn’t take into account federal sentencing guidelines.  But it hasn’t really been made clear that 20 years of that 32-year maximum sentence would come from Count 4 of the indictment, which charges Blankenship with a violation of 15 U.S.C. 78ff. The count alleges that Blankenship made untrue statements to the investing public when Massey defended its corporate safety record after the mine disaster.

Two other counts of the indictment — Count 2 charging Blankenship with conspiracy to defraud MSHA by advance notice of inspections and Count 3 charging him with making false statements to the U.S. Securities and Exchange Commission — each carry maximum jail sentences of 5 years. The allegation that actually involves unsafe mining practices is Count 1, which alleges a conspiracy to violate federal mine safety standards.  It carries a maximum sentence of 1 year in jail.

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Yesterday’s blockbuster news that U.S. Attorney Booth Goodwin had obtained a grand jury indictment of longtime Massey CEO Don Blankenship had me thinking again about the discussions I used to have with a former coal industry publicist about the huge numbers of mine safety violations some mining operations across the country routinely run up every year.

The discussion went something like this:  There’s a fatality at a mine, and in covering the story, we would mention the number of violations cited at that operation the previous year by the U.S. Mine Safety and Health Administration.  The numbers would almost always be large — especially if it was a big underground mine. Sometimes it would be literally hundreds of violations. My industry source would say it was unfair to publish those numbers without more context about the types of violations. I would respond by saying that the public should understand just how often mine companies don’t follow the rules. Eventually, things might get around to the fact that some in the mining industry say it’s simply impossible to run a coal mine, particularly a large underground one, without routinely getting written up by MSHA.

I bring this up today, as everyone is digesting what could be a historic turn of events, because at some point — probably after quite a long and complicated fight among the lawyers — if this case ever gets to a trial, there’s kind of a threshold question that the jury will face. And it’s a question that West Virginians more broadly need to figure out: Is it really acceptable for coal companies to routinely violate the law?

That issue is at the heart of the indictment that Goodwin and Assistant U.S. Attorney Steve Ruby got from a grand jury that met this week in Charleston. Here’s part of the indictment:

During the Indictment period, UBB was cited approximately 835 times for violations of mandatory federal mine safety and health standards … Approximately 319 of these violations were in an especially serious category of violations: those that could significantly and substantially contribute to the cause and effect of a safety or health hazard. Approximately 283 of UBB’s safety-law violations during the Indictment Period wee violations of the laws on mine ventilation, which operate to prevent explosions and fires in coal mines and to minimize deaths and serious injuries in the event an explosion or fire does occur. Approximately 59 of UBB’s safety law violations during the Indictment Period resulted in shutdown orders closing all or part of the mine until the violation was abated …

So yes, these were serious violations, and Upper Big Branch was a particularly problematic mine. But we also know that what can seem like little violations can turn into big violations, and that almost every time a coal miner is killed on the job, it’s because the company he worked for violated the law. And if you can turn your attention away from the Blankenship case long enough to check out the great work that Howard Berkes, Ellen Smith and others at NPR News and Mine Safety and Health News have done, it’s pretty obvious that plenty of coal operators don’t even have to count safety fines as part of the cost of doing business — because nobody ever makes them pay up.

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Don Blankenship indicted

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If you haven’t heard the latest, here’s the big coal news today from West Virginia:

Don Blankenship, the longtime chief executive officer of Massey Energy, was indicted Thursday on charges that he violated federal mine safety laws at the company’s Upper Big Branch Mine prior to an April 2010 explosion that killed 29 miners.

We’ve posted a copy of the indictment on the Gazette’s website, and here’s a summary of narrative it lays out:

Blankenship knew that UBB was committing hundreds of safety-law violations every year and that he had the ability to prevent most of the violations that UBB was committing. Yet he fostered and participated in an understanding that perpetuated UBB’s practice of routine safety violations, in order to produce more coal, avoid the costs of following safety laws, and make more money.

Also on the Gazette website, my coworker Kate White has a story with what some of the families of the miners who died at Upper Big Branch are saying today. We’ve also got a timeline of major events since the April 5, 2010, disaster, and a summary of convictions so far in the federal probe.

R. Booth Goodwin, Steve Ruby You can read U.S. Attorney Booth Goodwin’s (left, with Assistant U.S. Attorney Steve Ruby)  short and to-the-point statement about the indictment here.

Bill Taylor, Blankenship’s attorney had this to say in a prepared statement:

We were notified today that our client Don Blankenship has been indicted in the Southern District of West Virginia. Mr. Blankenship is entirely innocent of these charges. He will fight them and he will be acquitted.  Don Blankenship has been a tireless advocate for mine safety. His outspoken criticism of powerful bureaucrats has earned this indictment. He will not yield to their effort  to silence him. He will not be intimidated.

And here’s a different statement, issued this evening by retiring Sen. Jay Rockefeller:

For more than four years, Upper Big Branch families have cried out for justice for their loved ones lost in that horrific tragedy. Today’s indictment of former Massey Energy CEO Don Blankenship is another step toward justice.  But let me be clear: in my view, Don Blankenship, and the mines he once operated, treated miners and their safety with callousness and open disregard.  As he goes to trial, he will be treated far fairer and with more dignity than he ever treated the miners he employed. And, frankly, it’s more than he deserves.