Coal Tattoo

Lawyers mum on closed-door proceeding

A private hearing between U.S. District Judge Irene Berger and both sides in the Don Blankenship case ended at about 11:30 a.m. Friday.

Neither prosecutors nor defense lawyers would comment on what happened during the 30-minute proceeding.

“It’s a matter to keep the integrity of the proceeding,” said U.S. Attorney Booth Goodwin. “It’s a matter that will be placed on the record when we get back together.”

Goodwin said he did not know when that would be, but that it would likely not occur until the judge hears again from jurors. When lawyers emerged from the courtroom, there was a brief but heated exchange between Goodwin and Gary Quarles, whose son was killed in the Upper Big Branch mine, when Goodwin would not tell Quarles and other family members what had occurred.

“We are the families,” Quarles said. “Anything she’s got to say, we should be able to hear.”

Judge Irene Berger’s courtroom was closed this morning to media and families, who waited in the hall while the jury deliberated. Berger then called for the lawyers in the case to meet with her privately in the courtroom. Prosecutors arrived quickly, since they were in the building, followed a short while later by Blankenship and his attorneys. The meeting is ongoing. A U.S. marshal refused our request to deliver a note of protest to the judge regarding the closed meeting.

Jury deliberation continues

Jurors in the Don Blankenship criminal case resumed deliberations this morning on the three felony allegations against the former Massey Energy CEO.

The eight women and four men returned to the Robert C. Byrd United States Courthouse in downtown Charleston at about 9 a.m. They were starting their third full day of work after also deliberating for about an hour on Tuesday.

Families of the 29 miners who died in the 2010 explosion at Upper Big Branch and members of the media waited in the lobby outside the locked door of U.S. District Judge Irene Berger’s 5th floor courtroom for word of any notes from the jury.

This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

One of the most emotional parts of the Blankenship trial occurred when Assistant U.S. Attorney Steve Ruby used his closing argument to outline a series of places he asked the jury to see.

Here’s what he said:

And I want you to picture what you have heard about that in this case. It’s easy to, to, as we sit here over the course of weeks and hear testimony, let it turn into words that are running together. But picture that. Picture going underground every day miles away from daylight in complete darkness. Some of you know something about that. Picture, if you can, being miles away from fresh air, not being able to get enough of it; being told by your bosses to keep on mining anyway without so much as a breeze, in methane gas that you know can become explosive if there is not enough air to blow it away from you.

Picture mining day in and day out, eight or ten hours a shift, while you are literally choking on the coal dust in the air around you. Picture having your boss tell you to go reroute the air in the mine because safety inspectors are coming and you’ve got to trick them into thinking there’s enough fresh air in the part of your mine where your friends are working. And then picture being told to go take your friends’ fresh air away as soon as the inspector leaves so they go back to sweating and choking and being afraid that the methane gas is going to come back again.

Picture a miner who knows that what is standing between him and black lung disease is the dust pump, the sampling device that’s supposed to check how much coal dust he is breathing. Picture that miner being told that he has to cheat on the sample so he can keep eating coal dust without anybody outside ever finding out about it.

Picture Larry Adams, the fire boss, that came in here and testified, probably 70 years old, I don’t know; 40 years in the mines, bad legs, being told that you have to walk miles upon miles of conveyor belts every night, alone in the dark, and change the belt rollers, all alone in the dark; do the maintenance, again all alone; fix the roof in the places that you find it falling down, and then shovel up tons of coal that’s come off the belt. Again, all alone.

And if you don’t, and an inspector finds a violation on your belts, then you’re the one who gets, quote-unquote, disciplined.

Being told to cover an entire mine the size of UBB with only one other person to help you, that would be a joke if it weren’t so scary. How in the world is a human being supposed to do all that?

Picture telling your bosses you were afraid something bad, something serious was going to happen at UBB, telling anybody who would listen and being ignored. Picture walking through a mine and seeing everywhere in the tunnels around you coal dust, knowing it’s explosive, knowing there’s an easy way to make it safe by putting down pure white rock dust on top of it, but the people in charge won’t take the time to do it.

Picture being told it’s your job to spread the rock dust that can stop explosions from happening or spreading in a coal mine but then picture being given a piece of equipment that won’t work, that’s broke down half the time.

Picture asking over and over again for a rock duster that works and being ignored. Picture being pulled away night after night from what you’re supposed to be doing because the mine was shorthanded and there was other work that was more important to keeping the coal rolling on the belts.

Picture coming to work at the end of March in 2010 and writing a note to your boss in the middle of the night, “I’m set up to fail here.”

Picture being a section foreman at UBB.

Picture Rick Hutchens who came in here and testified, trying to do the right thing, trying to follow the law, and, and doing everything he can to keep his crew safe. Picture him being sent all the way down to the far end of the mine — he’s shorter than I am — forced to wade through water up to his chest, in places up to his neck, slip-sliding across the bottom of the mine in pitch black darkness. Picture him taking one of his men with him because he knew that if anything happened to him back there nobody would ever find him.

Picture him trying to follow the law, risking — risking his life in water that’s almost up to the roof. And the thanks that he gets for it is somebody threatening to fire him three or four times a week for trying to do the right thing.

During the above comments, the families of the 29 miners who died in the 2010 explosion at the Upper Big Branch mine could be seen crying. Ruby was outlining the harrowing conditions they knew all too well and it was hard for them to listen.

Today, I caught up with Judy Jones Petersen, who lost her brother Dean Jones in the 2010 explosion, to find out what she thought of Ruby’s tactic.

Here’s what she said:

Annotated closing arguments

This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

During closing arguments, attorneys for the prosecution and defense used a plethora of exhibits to make their case. I’ve slowly been adding links to those exhibits to the official transcript.

Over the next day or two I hope to add a few more links to the document but for now, you can check out an annotated version of the transcript here –

F. BRIAN FERGUSON | Gazette-Mail Don Blankenship leaves the Federal Courthouse on Thursday during a break for lunch.

Photo by F. Brian Ferguson

We’re all just back from the Robert C. Byrd United States Courthouse, where the jury in the Don Blankenship criminal trial has gone home for the evening.

Jurors left shortly before 5 p.m., after sending a note to U.S. District Judge Irene Berger saying they were ready to stop for the night.

Judge Berger told jurors to return at 9 a.m. tomorrow to resume their deliberations.


This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

Shortly after U.S. District Judge Irene Berger received a note from jurors today, asking how long they should deliberate, Don Blankenship’s defense attorneys filed an emergency motion pertaining to jury instructions.

This morning Berger ordered the jury to continue deliberating, saying with the length of the case, the number of witnesses and the fact that jury had only been deliberating for about 10 hours, they should continue the process.

In their emergency motion, the defense is seeking Berger to clarify her orders to the jury. Here’s what they want the judge to say:

“I wish to follow up on my instruction before lunch to continue your deliberations. As I instructed you previously: [I]t is your duty as jurors to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict – whether guilty or not guilty – must be unanimous. Each of you must make your own conscientious decision, but only after you have considered all of the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussions persuade you that you should. But do not come to a decision simply because other jurors think it is right or simply to reach a verdict.”

As of this writing, the government has yet to respond to this emergency motion.

During the 11:45 a.m. meeting, Berger said she found it unnecessary to have to clarify to jurors what she wants them to do – namely continue deliberations. The defense argued that they wanted the judge to clarify that the jury is not forced to reach a decision if they can’t make one.

The jury in the Don Blankenship case was told to continue deliberating after telling the judge this morning that it “cannot agree” on a verdict.

U.S. District Judge Irene Berger said she received a note at about 11:30 a.m. from the jury that said, “How long do we deliberate? We cannot agree.”

Berger told the jurors that given the length of the trial, the number of witnesses and the limited amount of time they had so far deliberated, that she wanted them to continue their deliberations.

After giving the jury that order in open court, the judge released the eight women and four men for lunch shortly before noon.

Berger denied a request from defense lawyer Bill Taylor for a mistrial.

Jurors in the Don Blankenship trial resumed their deliberations this morning trying to reach a verdict on the three felony counts against the former Massey Energy CEO.

The eight woman and four man jury returned to the Robert C Byrd United States Courthouse today at 9 a.m. to begin its third day of deliberations.

Jurors met for about an hour Tuesday and a little more than six hours on Wednesday.

This morning, jurors reported directly to their private jury room, adjacent to U.S. District Judge Irene Berger’s courtroom. Unlike on Wednesday, court security had the courtroom open and media representatives and other trial spectators – including families of the miners who died in the 2010 Upper Big Branch Mine disaster that killed 29 miners – were allowed in.

Berger told lawyers in the case on Wednesday that the court would alert them if jurors reached a decision or sent the judge a substantive note.

R. Booth Goodwin, Steve Ruby

When he got the last word in the Don Blankenship trial’s closing arguments, Assistant U.S. Attorney Steve Ruby told jurors he could summarize the government’s case against the former Massey Energy CEO in six sentences. Here they are, from the transcript we posted online:

  1. The Upper Big Branch mine sadly was the site of hundreds of serious preventable safety violations, including the most unwarrantable failure orders of almost any coal mine in America.
  2. The defendant knew that the Upper Big Branch mine was continually breaking the mine safety laws and that it was one of the worst mines in all of Massey for safety violations.
  3. The defendant, the chief executive officer and the chairman of the board of Massey, had it completely within his power, completely within his power to put a stop to the vast majority of the safety violations at UBB if he was willing to spend a little bit more money and take a little bit more time to devote to following the safety laws.
  4. Instead, he chose, he chose to keep on breaking the mine safety laws at UBB, not just allowing it, not just sitting passively by while the laws were broken, as if that wouldn’t be bad enough, but taking actions and imposing policies and denying requests that he knew were going to cause the constant law-breaking that existed at that mine to continue.
  5. And the reason that he did it was money, millions and millions of dollars for him, hundreds of millions of dollars for Massey, millions for the “yes” men that he surrounded himself with.
  6. And when tragedy happened and he found the eyes of the world on him and his safety practices, he lied about it to cover it up and to keep the money machine going a little longer.
Blankenship day 22 photo

While we wait for the jury in the Don Blankenship case to reach a verdict, it might be interesting to review some of the major points that both sides made in presenting their closing arguments to those jurors.

For example, lead defense lawyer Bill Taylor rattled off a list of examples of what he told jurors should raise a “reasonable doubt” about whether Blankenship is guilty. Here are those examples, mostly from memos entered into evidence in the case, that Taylor said raise reasonable doubt about whether Blankenship intended for Massey to violate safety laws:

— July 25, 2008, from Don Blankenship to Chris Adkins. “It’s important that we make sure we are recognizing the new MSHA rules and designing our mine plans to be efficient within those rules rather than mining and setting up the sections the way we used to and complaining that MSHA won’t do what they won’t let us do.”

— This is a memo from Elizabeth Chamberlin to other people in which she says, “Effective immediately individual mine safety meetings are to include a review of citations and orders, should focus on the reduction of orders and S&S violations and address individual accountability.” He writes on it, “Elizabeth, thanks. Don.”

— Elizabeth Chamberlin to Mr. Blankenship, August 10, 2008. “I intend to make changes in the management of the Marfork/Performance safety program shortly.” Mr. Blankenship writes back and you can see in the bold at the bottom. “We need to improve. So whatever is necessary needs to be done. However, these issues seem to go from group to group. Be fair with safety people when they’re having a bad run. Again, do what you and Chris agree is best.”

— Don Blankenship to group presidents, January 19, 2009. “I am aware that MSHA has changed their rates and tightened up their inspections, but I had no idea we were not dealing with the issue in our day-to-day operations. It seems that we perhaps have turned this into a legal dispute as opposed to dealing with it at the mines. Everyone should drop what you are doing and figure out what your violation circumstances are. Obviously, what we are doing now is not going to work.”

— These are handwritten notes that Mr. Blankenship writes on a message that he gets about citations in the spring of 2009. In his own typical style, “The only thing more frightening to our future than the regulators is us. I am very, very disappointed that you all don’t step up on your relative pieces of this. Learn to fish.” And then he writes to John Poma, Chris Adkins, and Mark Clemens. “I remain frustrated that those who should measure, manage, and eliminate violations will not provide executive-level communication. This is not about multi-page, detailed, shaded, microscopic reports to me. It’s about executive management of a new and frightening challenge.”

— March 20, 2009, Blankenship to Adkins further on violations. “This memo is just thoughts about how we could deal with it. The essence of it is that our mines have to be better managed and that we have to elevate the level of concern from the superintendents down through the mine foremen, fire bosses, and back up to and including the group presidents with violation reduction,” and so forth, “to fill out whether we should have a team of inspectors. As you can see in this memo, I’m just brainstorming in an effort to help you get your thoughts together. Let’s not get bureaucratic, but let’s get effective and primarily let’s do it yesterday.”

— Don to group presidents relating to respirable dust violations: “Group presidents, you have to develop a plan to deal with this and other problems. Have processes, meetings, learn from Massey Coal Services processes. Do your jobs.”

— This is the memo that is written to Mr. Blankenship about the Hazard Elimination committee, its formation and its kick-off, and its goals. It’s written by Chris Adkins. And Paragraph Number 4 which we’ve blown up here is the one I wanted you to look at. And at the bottom he’s telling Mr. Blankenship who’s going to be in charge of what. And then he says, “Each will mark where we are now and submit as to how we are going to reduce the violations within their area by 20 percent.” And somebody strikes through “20 percent” and writes “50 percent by year end versus first half run rate.”

Do you know who that person was? It was Donald Blankenship.



Jury wants to hear Blankenship calls again

Blankenship phone

Photo by Joel Ebert

We’re just back from the Robert C. Byrd United States Courthouse, and the news is that the Don Blankenship jury has gone home for the evening … But not before they asked if they could listen again to the recordings of Blankenship’s phone calls that were played by prosecutors during the trial.

Sometime after 4 p.m., U.S. District Judge Irene Berger apparently received a note from the jurors. By about 4:40 p.m., prosecutors, defense lawyers and Blankenship — along with the media and families of Upper Big Branch miners — had gathered in the courtroom. Court security brought in the jury and Judge Berger came in at about the same time.

Judge Berger then informed the parties that she had received a note from jury foreperson Pam Carte that asked, “Can we listen to the CDs? Can we leave at 5 p.m.?”

After conferring briefly, the jurors then agreed that they would go ahead and recess for the evening then, rather than waiting until 5 p.m.

Judge Berger said that she would arrange for the jurors to be “provided a means to listen to the CDs.” Assistant U.S. Attorney Steve Ruby suggested that court technology staff could provide the jurors with equipment, or that the government could provide a “clean” laptop — without other files on it — that the jury could use to listen to the telephone calls, which are in MP3 or WAV format, depending on the particular call.

Defense lawyer Bill Taylor said that Blankenship’s team would prefer that the court provide the equipment, rather than the prosecution. Judge Berger said she would inquire of the court staff and see if that could be done.

Jurors are due back tomorrow at 9 a.m. to resume their deliberations. Judge Berger said there was no need for attorneys in the case to report to the courtroom until they hear something from the jury. “I will simply call you if I hear something substantive,” the judge told Taylor.

The latest from the federal courthouse is that jurors in the Don Blankenship case have taken a break for lunch.

U.S. District Judge Irene Berger released the 12-person jury at about 11:50 a.m. and asked them to return at 1:10 p.m. to resume their deliberations.


Jurors resume deliberations

Jurors in the Don Blankenship trial resumed deliberations this morning on the charges against the former Massey CEO.
U.S. District Judge Irene Berger sent the eight women and four men back to the jury room shortly after 9 a.m. Wednesday. Berger told jurors to knock on the door of the jury room to alert a court security officer if they wanted to take a break.
After jurors left the room, Berger told attorneys for both sides that her clerk would alert them when the jury returns. Defense lawyer Bill Taylor asked the judge if the parties should return at lunchtime to see if the jury is taking a break. Berger said she didn’t see a need for that because “I’m letting them decide if they will take a break.”

F. BRIAN FERGUSON | Gazette-Mail Don Blankenship, center, makes his way into U.S. Federal court on Tuesday morning.
Photo by F. Brian Ferguson

With closing arguments completed yesterday afternoon (we’ve posted the transcript here) and jurors in the Don Blankenship trial scheduled to be back at the courthouse at 9 a.m. today to resume their deliberations, it’s as good a time as any to briefly run remind ourselves of the charges — and talk a little bit about the form the jury will use to announce its verdict.

You can read the superseding indictment here.

From yesterday’s jury instructions (also included in the posted transcript), here’s how U.S. District Judge Irene Berger described Count One of that indictment:

The defendant, Donald L. Blankenship, is charged in Count One of the superseding indictment with unlawfully, willfully, and knowingly conspiring with others between January 1st, 2008, and April 9th, 2010, to willfully violate mandatory federal mine safety and health standards at Upper Big Branch in violation of Title 30, United States Code, Section 820(d) and Title 18, United States Code, Section 371; and to defraud the United States and an agency thereof in violation of Title 18, United States Code, Section 371.

This is the count that basically alleges Blankenship conspired to violate federal mine safety and health standards and conspired to thwart U.S. Mine Safety and Health Administration inspections.

Here’s how Judge Berger described Count Two:

Count Two of the superseding indictment charges that on or about April 8th, 2010, in the Southern District of West Virginia and elsewhere, the defendant, Donald L. Blankenship, aided and abetted by others known and unknown to the grand jury, knowingly and willfully made materially false, fictitious, and fraudulent statements and representations, and knowingly and willfully made and caused to be made and used a false writing and document knowing the same to contain materially false, fictitious, and fraudulent statements and entries in a matter within the jurisdiction of an agency of the executive branch of the Government of the United States, that is, the Securities and Exchange Commission, in violation of Title 18, Section 1001 and 2.

And here’s how the judge described Count Three:

Count Three of the superseding indictment charges that from on or about April 7th, 2010, through on or about April 9th, 2010, the defendant, Donald L. Blankenship, aided and abetted by others known and unknown to the grand jury, did directly and indirectly, by means and instrumentalities  of interstate commerce, and by means of the mails and of the facilities of national securities exchanges, did make and cause to be made untrue statements of material fact, and did omit to state and cause to be omitted to state material facts necessary in order to make the statements made in the light of the circumstances under which they were made not misleading, and did engage in acts and practices and courses of business which operated and would operate as frauds and deceits upon persons, all in connection with the sale and purchase of securities, to-wit: Massey Class A Common Stock, in violation of Title 15, United States Code, Section 78ff Title 17, Code of Federal Regulations, Section 240.10b-5; And Title 18, United States Code, Section 2.

Counts Two and Three focus on those statements that were issued after the Upper Big Branch Mine Disaster that said Massey Energy did not condone safety violations and strove to comply with all laws at all times.

Continue reading…

Jurors released for the day

U.S. District Judge Irene Berger released the 12-member jury shortly before 5 p.m. today in the criminal trial of Don Blankenship.

Jurors have been instructed to return 9 a.m. tomorrow when they will continue their deliberations.

Jurors in the Don Blankenship case were told late this afternoon to begin their deliberations. U.S. District Judge Irene Berger released the jury to begin its closed-door work shortly before 4 p.m., after a day’s worth of closing arguments in the case against the former Massey CEO.

Three female alternate jurors were dismissed and will not have to sit through daily deliberations, but could be called back if they are needed. Twelve jurors are left to decide Blankenship’s fate.

Lead defense attorney Bill Taylor this afternoon continued his closing argument, telling jurors over and over that federal prosecutors haven’t made their case against former Massey Energy CEO Don Blankenship.

Taylor also argued that evidence the defense brought out through its cross-examination of government witness should prompt jurors to acquit Blankenship.

For example, Taylor cited former Massey insider Bill Ross’s testimony that he met with Blankenship and believed the former CEO was genuinely concerned about reducing violations.

“Bill Ross is Exhibit A that Don Blankenship is innocent,” Taylor said as he finished his closing following a lunch break for jurors.

Taylor also argued that Blankenship should not be held responsible for a longstanding practice of coal mine guards of alerting workers underground when government inspectors arrived.

“The government wants you to convict Don Blankenship just because the practice of advance notice exists,” Taylor told jurors. “It takes this piece of coal mining culture and wants you to convict Don Blankenship because of it.”

Taylor also argued that it was not a crime for Blankenship to not believe that hiring more miners was the answer to the Upper Big Branch Mine’s safety problems. “How many more was he supposed to hire to not be a criminal?”


Lead defense lawyer Bill Taylor told jurors late this morning that federal prosecutors have no evidence that proves the charges against ex-Massey CEO Don Blankenship.

Taylor said prosecutors may have shown that Blankenship pushed for more coal production, was tough to work for, and made himself and Massey a lot of money.

“If it’s true that he made a lot of money, and he worked for a company that made a lot of money, he’s guilty — I’m wasting your time,” Taylor said.

Taylor began his closing arguments shortly before noon as the jury heard lawyers from both sides summarize their cases.

He led by showing jurors quotes from two key government witnesses — former Massey officials Chris Blanchard and Bill Ross — who provided testimony helpful to the defense. Taylor also belittled testimony from another government witness, David Hughart, saying Hughart came to court from a “halfway house” and made a deal with the government to avoid being prosecuted for stealing from Massey.

Also, Taylor chided the government for not bringing federal mine inspectors to court to testify about citations issued to Massey. He noted that the government got key citations into evidence through the testimony of a U.S. Mine Safety and Health Administration computer data analyst.

“The paper is what the government has brought you to prove that Don Blankenship is guilty of conspiracy,” Taylor said.

He said the case against Blankenship is weak, based only on a collection of “maybes.”

“In this country, we don’t convict people — rich or poor — based on maybes,” he said. “It requires proof.”

Jurors in the Don Blankenship criminal trial took a brief break this morning after U.S. Attorney Booth Goodwin completed the first portion of the government’s closing argument.
The jury will hear next from lead defense lawyer Bill Taylor.

In his closing, Goodwin tried, among other things, to reduce the impact of testimony that former Massey official Chris Blanchard, a government witness who provided much helpful testimony to the defense during his cross examination.

Goodwin referred to Blanchard repeatedly as one of the “yes men” who did Blankenship’s bidding. Goodwin also said Blankenship was obsessed with “flashy things” — like reflective clothing for miners — more than spending money on miners to keep up with safety laws.

Inside the courtroom, the gallery remained at full capacity. People who were trying to get in and watch were directed to an overflow room with a televised video feed of the proceedings. That room contained about 20 people at one point, including U.S. District Judge Joseph R. Goodwin, Booth Goodwin’s father.

Booth Goodwin took about an hour and 15 minutes of the two hours allotted to the government for closing arguments, saving 45 minutes for rebuttal.