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.