Blankenship guilty of conspiring to violate mine safety rules

F. BRIAN FERGUSON | Gazette-Mail
Don Blankenship gives a wide smile as he leaves the Robert C. Byrd U.S. Courthouse in Charleston after Thursday’s verdict.
KENNY KEMP | Gazette-Mail
Don Blankenship stands behind his lawyers outside of the federal courthouse in Charleston on Thursday.
F. BRIAN FERGUSON | Gazette-Mail
Judy Jones Peterson (left), whose brother, Dean Jones, was among the 29 men killed in the 2010 explosion at the Upper Big Branch Mine, watches as Blankenship leaves the federal courthouse after Thursday’s verdict was read.
Jeff Pierson illustration | For the Gazette-Mail
Lead defense attorney Bill Taylor and Blankenship sit at the defense table Thursday during the reading of the verdict.

Former Massey Energy Co. chief executive Don Blankenship, once one of the most powerful men in the region’s coal industry, was convicted Thursday by a federal jury of conspiring to violate mine safety and health standards at Massey’s Upper Big Branch Mine, where 29 miners died in an April 2010 explosion.

The federal jury found Blankenship not guilty of two other charges, securities fraud and making false statements, after a landmark, two-month trial that revisited the worst U.S. coal-mining disaster in a generation and closely examined the longstanding argument from Blankenship’s critics that he put coal production and corporate profits ahead of the safety of his company’s miners.

Blankenship faces a maximum of one year in prison — compared to the 30-year maximum sentence had he been convicted on all three charges — but he also could be sentenced to pay fines of up to twice the financial gain resulting from the mine-safety conspiracy.

“The jury’s verdict sends a clear and powerful message,” U.S. Attorney Booth Goodwin said. “It doesn’t matter how rich you are, or how powerful you are — if you gamble with the safety of the people who work for you, you will be held accountable.”

Blankenship, who once wrote on his blog that, “If they put me behind bars . . . it will be political,” declined comment as he left the courtroom. His legal team vowed a vigorous appeal.

“We’re pleased that the jury found Mr. Blankenship not guilty on all the felonies in this indictment,” said Bill Taylor, the lead attorney on a large and expensive defense team that included lawyers from the firms Zuckerman Spaeder, in Washington, D.C., and the Morgantown and Charleston offices of Spilman Thomas & Battle. “We regret the fact that they made the mistake of convicting him on a misdemeanor, but I’m confident that will be reversed on appeal.”

U.S. District Judge Irene Berger read the jury’s decision aloud to a packed courtroom at about noon Thursday, after warning those in the room that she would not tolerate “outbursts, with respect to the verdict.”

Jurors had deliberated for about 50 hours over 10 days since the judge gave them the case late on the afternoon of Nov. 17. They heard 24 days of testimony that included 27 witnesses and more than 500 exhibits. Potential jurors originally had reported to court for jury selection on Oct. 1.

The verdict came after jurors had twice reported to Berger — once on Nov. 19 and again on Tuesday — that they could not agree to a unanimous verdict. Over defense objections and repeated demands for a mistrial because of the deadlock, Berger encouraged jurors to continue their work, issuing an instruction that they needed to “re-examine” their positions and be willing to change their minds if convinced they should do so.

Late Thursday morning, jurors appeared to have sent the judge two notes, one at 11:25 a.m. and another at 11:45 a.m. After the second note, attorneys from both sides hurried to the courtroom and court staff scrambled to set up a video feed to an overflow room. As word spread that a verdict announcement was coming, family members of the Upper Big Branch miners — seated in the front row, as they had been throughout the trial — began to sob, and kept crying until after the verdict was read.

Berger told the crowd that she had received a note from the jury that read, “Your honor, we have a verdict.” After reading from the verdict form, and while Blankenship sat quietly at the defense table with his lawyers — the judge did not ask him to stand — Berger polled the eight women and four men on the jury. She asked them each, in turn, if they agreed with the verdict. Jurors replied, “Yes, your honor,” “It is, your honor,” and “Yes, ma’am.”

After conferring with Goodwin and other prosecutors, Assistant U.S. Attorney Steve Ruby asked Berger to have Blankenship taken into custody or to, at least, increase his existing $5 million cash bail by another $10 million if the CEO wanted to remain free pending sentencing.

Ruby said Blankenship has “significant international ties, a bank account in a foreign country” and, even though he already had surrendered his passport, “has sufficient means that there is, nonetheless, a risk of flight.” Taylor responded that Blankenship had appeared voluntarily at every phase of the case, had a “perfect” record of attendance and was not a risk of flight.

Berger denied Ruby’s request, saying that Blankenship “has complied with all of the terms and conditions” of his initial bail release.

“I realize, as has been argued here, that the circumstances have changed, in that he now stands convicted by a jury verdict, which was not the case previously,” the judge said, “but given the conduct up until this time, I’m going to deny the motion to modify the conditions of bond.”

The judge set sentencing for 10 a.m. March 23, but then agreed to reconsider that date after Taylor told her, “I happen to know I will be out of the country on that date.”

For video of Taylor’s reaction to the verdict, click here.

Live updates and background here

Blankenship, 65, had faced three felony counts in an indictment that resulted from a nearly five-year federal probe following the April 5, 2010, explosion at Upper Big Branch, an underground mine in Raleigh County that produced a valuable form of steel-making coal that was key to Massey’s financial success. While Blankenship was not charged with causing the disaster, the accusations focused on rampant violations of basic safety standards — mine ventilation, roof support and dust control — known for decades to be effective in preventing mine explosions.

The charges put on trial a man who worked his way from humble beginnings in Mingo County to a powerful player in West Virginia’s business and political world — a coal CEO who was loved by some for his outspoken conservative stances but vilified by others for an anti-union business model that critics said illustrated the worst aspects of the coal-mining industry.

During the trial, more than a dozen former Upper Big Branch miners testified about working day after day with inadequate fresh air, high levels of dust, and other problems, and still being ordered to keep “running coal.”

Prosecutors introduced evidence that Massey — and the Upper Big Branch Mine in particular — racked up far more serious safety and health violations than other mines operated by other major coal producers. Prosecutors alleged that these violations could easily have been prevented, but Blankenship refused to hire additional miners to do things like spread adequate amounts of crushed limestone, or “rock dust,” to dilute explosive coal dust generated by mining. The government also noted specific examples where Blankenship refused budget requests for a new ventilation shaft and rock-dusting machine for the Upper Big Branch Mine.

“There will certainly be an appeal, but no matter what happens now, the evidence in this case revealed the repugnant arrogance that underlay Massey management’s claims that it always strove to comply with mine safety laws at all times,” said longtime West Virginia University law professor Pat McGinley, who served on an independent team that investigated the Upper Big Branch Mine disaster. “A trial is a search for the truth, and coalfield communities now know the truth — profits, not miners’ lives, was Massey’s overarching goal.”

Lead defense lawyer Bill Taylor had tried to convince jurors that the government had not proven its case to the “reasonable doubt” standard required in criminal cases, even concerning the mine safety conspiracy.

“There’s no proof that Don Blankenship agreed with anyone else, with others, unnamed so far, to commit willful violations of MSHA regulations at the Upper Big Branch Mine,” Taylor said during his closing.

Goodwin responded that the conspiracy charge didn’t require an overt or spoken agreement by Blankenship to take part in the scheme. He compared the concept to a “drug kingpin who doesn’t need to know about every drug sale that is made by one of his street-corner drug dealers.”

“The defendant doesn’t need to know the details about every violation of mine safety laws in order to be guilty of conspiracy,” Goodwin said. “He was the kingpin.”

Defense lawyers tried to focus jurors on what they said were Blankenship’s safety innovations — reflective clothing and new safety helmets — that prosecutors dismissed as “whiz-bang so-called innovations.” The defense touted a “hazard elimination program” they said Blankenship came up with to push for fewer safety violations. Prosecutors said the program was little more than “propaganda” and won a legal motion to keep out of evidence a lengthy video of a Massey meeting held to launch the program.

The defense also repeatedly tried to convince jurors that ventilation violations at Upper Big Branch were largely caused by the federal Mine Safety and Health Administration forcing the mine, over Massey’s objections, to adopt a different plan for pumping fresh air through the mine. Berger initially granted a government motion to keep such evidence out of the trial but repeatedly allowed the defense to get into the matter through cross-examination of government witnesses. And during one short cross-examination, defense lawyer Eric Delinsky managed to get the government’s securities expert to say the name “Obama” more than three-dozen times to a jury drawn from a state where the president is very unpopular.

On Nov. 16, after the government completed its case, defense lawyers made the surprise announcement that, not only would Blankenship not testify on his own behalf, but also the defense would rest without calling any witnesses of its own.

In his closing argument the next day, Taylor made it clear the defense thought it had done enough by scoring points toward reasonable doubt with its cross-examination of prosecution witnesses.

Taylor especially focused on the testimony of Chris Blanchard, who, as president of Performance Coal Co., had run the Upper Big Branch Mine for Massey. Blanchard testified under an immunity agreement with Goodwin’s office and was a key witness before the grand jury that indicted Blankenship. However, in a marathon cross-examination that lasted more than a week, Taylor got Blanchard to insist that he did not conspire with Blankenship to violate safety laws or hinder MSHA inspections. Prosecutors tried to minimize any damage by referring in their closing arguments to Blanchard as one of the “yes men” who did whatever Blankenship instructed them to do.

Defense lawyers tried just as hard — but for not nearly as long — to turn to their advantage another key government witness, former Massey ventilation expert Bill Ross. Ross testified on cross-examination that he thought Blankenship wanted to reduce safety violations. He told jurors how the CEO had invited him to lunch to talk about safety and asked him to write a safety speech. Ruby, though, said it was the documents from Ross — more than the witness himself — that were a key to the prosecution case. The Ross documents, Ruby reminded jurors, showed that, even after he lunched with Blankenship, Ross didn’t see the sorts of safety improvements he felt were needed.

At the end of trial, in a chilling rebuttal to Taylor’s closing argument, Ruby asked jurors to picture themselves as one of the miners they heard testify about conditions at Upper Big Branch.

“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,” Ruby said. “Fast forward a few years to this trial, and picture having the defense try to blame the coal miners for the safety violations that happened at UBB — the coal miners who went to work every day and kept their heads down and did their best to make a living for their families when they were all but begging, in fact, just to be given the chance to do what was right, to follow the laws that were designed to keep them safe on the job.”

On the false-statement and securities fraud charges, prosecutors alleged that Blankenship orchestrated a Massey statement that falsely said the company did not condone safety violations and strove to comply with all safety rules at all times. They alleged that the statement was issued just days after the Upper Big Branch Mine disaster to try to stop Massey stock prices — and Blankenship’s personal wealth — from plummeting amid news reports of Massey’s troubled safety record.

“When tragedy happened and he found the eyes of the world on him and his safety practices,” Ruby said, “he lied about it, to cover it up and keep the money machine going a little longer.”

On Thursday, Taylor said it was clear that jurors didn’t buy that part of the government’s case.

“They obviously didn’t, and we didn’t either,” Taylor told reporters, as defense lawyers escorted Blankenship down the courthouse steps. “There’s never been a charge of securities fraud based on a sort of subjective language like that. There was a quality of ‘make it up as you go along’ in this case.”

The securities fraud charge had carried a maximum prison sentence of 20 years, and the false-statement charge a maximum sentence of five years.

Count One — the conspiracy charge — would normally be a felony, punishable with up to five years in prison. In Blankenship’s case, though, prosecutors had charged a two-object conspiracy. They alleged that the conspiracy’s goals were to violate mine safety standards and to defraud MSHA by thwarting government inspections. Defrauding MSHA is a felony but, under federal law, violating a mine safety standard is just a misdemeanor. Jurors checked off only one of the two objects of the conspiracy — the one for violating mine safety standards — in a move that bumped the Count One conviction down to a misdemeanor and the maximum sentence down to one year in prison. Generally, violating mine safety standards also carries a maximum fine of $250,000, but prosecutors said they also could seek to force Blankenship to pay a fine equal to twice the financial gain or loss from the conspiracy — a figure that no one has yet put a number on.

“You can’t always — in fact, you often can’t — measure justice by the length of a prison sentence or by the amount of time that a defendant does,” Ruby said Thursday. “A critical part of doing justice, particularly in a case like this, is accountability. It is unprecedented, as far as we know, for any CEO of any large corporation to be held accountable, to face a jury of his peers and have that jury say he is guilty of violating workplace safety laws, violating mine safety laws. The fact that we’ve been able to obtain that kind of accountability today, obtain that kind of justice today, it is an enormous victory.”

Staff writers Joel Ebert and David Gutman contributed to this report.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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