This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.
We’re back from the courthouse following U.S. District Judge Irene Berger dismissing jurors for the day.
They have been directed to return at 9 a.m. on Monday. Prior to being dismissed, the jury found out court will not be held on Wednesday and Friday of next week to accommodate the Thanksgiving holiday.
Earlier in the day, jurors sent a note to the judge specifically asking for clarity on the words “condone” and “strive.”
The words are contained in counts two and three of the superseding indictment. In those counts, the government alleges Blankenship made a false statement and committed securities fraud in connection with a statement issued by Massey Energy following the 2010 Upper Big Branch Mine disaster.
Here are the sentences in question:
“We do not condone any violation of MSHA regulations.”
“We strive to be in compliance with all regulations at all times.”
Although juror seemed to be unclear about the words on Friday morning, they did hear lawyers from both the prosecution and defense discuss the words in their closing arguments.
U.S. Attorney Booth Goodwin said “condone” several times in his closing statement, including during this passage, where he discusses testimony from Stanley “Goose” Stewart:
You may recall after many objections, Mr. Stewart was finally able to talk about the understanding that existed. He said that, “My experience there, the attitude was, the laws don’t apply to us. We don’t care. They not only condoned breaking them, they encouraged breaking them, and they demanded that they be broke.
Towards the end of his remarks, Goodwin concludes:
Again, we have proven beyond a reasonable doubt that the statement made by the defendant and his co-conspirators that, “We do not condone any violation of the mine safety laws and strive to be in compliance with all laws at all times,” was totally and completely false. And the defendant knew it.
But even if you buy that, you have to admit that at the very least the statement that, “We do not condone any violation of mine safety laws and strive to be in compliance with all laws at all times,” is misleading without knowing all the facts that you now know; facts that the defendant knew at the time that he caused that statement to be made; facts that you now know through the Ross memo and all of the evidence that you’ve heard in this case are lies.
During his closing remarks, lead defense attorney Bill Taylor said:
Now when you ask yourselves whether Massey, the company, condoned MSHA violations, whether that’s a false statement, I want you to remember that Mr. Blankenship received this anonymous survey from 2,500 people.
The survey Taylor mentioned is one that was provided to jurors as a defense exhibit.
I respectfully submit, ladies and gentlemen, when you ask yourself, and when Mr. Blankenship is accused of making a false statement, as to whether Massey condones violations or is striving to avoid them, you’ll remember this.
Again, he was reminding them to think about the survey, which he said found that 94 percent of respondents said Massey “stresses proper safety procedures.”
Did he (Blankenship) think it was a lie when he agreed to the statement that said Massey condones and strives to avoid.
Later Taylor mentions the statement once again, saying:
As Mr. Childress and everybody else said, the citations were public. And the shareholder statement acknowledges the violations and says, “We try to correct them as soon as possible. While we get violations, we don’t condone them. And when we get them, we strive or try not to get them.
Mr. Poma acknowledges – he testified that the paragraph specifically acknowledged receiving the citations, and that even though we get them, we don’t condone them, and we try to prevent them.
Understanding the reality that a coal mine received citations doesn’t mean that you condone them. And everything in this record that’s before you that you will deliberate about in the jury room demonstrates that Massey was trying to prevent them; that Don Blankenship was trying to prevent them and trying to reduce them.
So the question before you is whether the Government has proved beyond a reasonable doubt that Mr. Blankenship is guilty of these two counts because of the statement.
During his closing remarks, Assistant U.S. Attorney Steve Ruby had this to say about the words “condone” and “strive”:
The statement was an attempt to tamp that down. It said, “We do not condone any violation of MSHA violations, and we strive to be in compliance with all regulations at all times.”
What a claim. This was a company that the defendant knew had more than 10,000 cited safety violations in 2008, more than 10,000 cited safety violations in 2009, far more than any other coal company in America. This was a mine, UBB, that had more unwarrantable failure orders than almost any other single mine in America, and hundreds of violations of the safety laws every year.
Ruby was the only one of the three attorneys to address the jury to actually provide a definition of the word “condone.” Here’s what he said:
The critical question, the thing people didn’t know, was whether the violations had been intentionally tolerated.
And people at the upper levels of the company, people like the defendant, had known about those violations and allowed them to go on. That’s what condone means. It doesn’t mean that you want something or that you actively seek it out or promote it. The word means something different. It means you know about something and, even if you’d rather not have it happen, you allow it to continue anyway for some reason. For example, to make more money.
In her charge to the jury, Judge Berger mentioned “condone” and “strive” several times but mostly to explain them as being a part of the statement at the center of counts two and three.
Here’s one reference she made:
No statements other than the two statements charged in Count Two can be the basis of a conviction to Count Two. The indictment charges that the term “we” in the statement refers to Massey Energy Company. Thus, in order for the statement to be false, fictitious, or fraudulent, it is not sufficient to find just that the defendant condoned violation of MSHA regulations and/or did not strive to be in compliance with all regulations at all times.
To establish that the statements charged in Count Two are false when made, the Government must prove beyond a reasonable doubt that on or about April 8th, 2010, Massey Energy Company condoned violations of MSHA regulations and/or did not at all times strive to be in compliance with all regulations.
In total, there were 23 uses of the word “condone” and 18 uses of “strive” in the closing arguments and judge’s charge to the jury.