Issues in Blankenship appeal revisit case over 1980 mine disaster

Gazette-Mail file photos
Former Massey Energy CEO Don Blankenship leaves the federal courthouse in Charleston in October 2015 during his criminal trial.
Rescue crews bring bodies out of the Ferrell No. 17 Mine in Boone County following a November 1980 explosion. A case involving that disaster is at issue in former Massey Energy CEO Don Blankenship’s appeal.
Assistant U.S. Attorney Steve Ruby, the lead prosecutor in the Don Blankenship case, will argue for the government this week as Blankenship appeals his conviction and tries to get out of jail.

At about 3:30 on the morning of Nov. 7, 1980, an explosion ripped through the Ferrell No. 17 Mine, a Westmoreland Coal Co. operation near Uneeda in Boone County.

Five miners were killed, their bodies found only after a day-long vigil, all too familiar in the coalfields, in which families clung to slim hope that the men were somehow still alive.

Investigators later blamed the disaster on poor mine ventilation and reported that the company had not performed safety checks required by federal law and lied to cover it up.

In the aftermath of the explosion, the mine superintendent and a shift supervisor were found guilty of criminal safety violations. Their convictions were based partly on an instruction that the jury could find them guilty if the mine officials had shown “reckless disregard” for mine safety standards. The mine officials filed a legal challenge, and in a 1984 ruling, the 4th U.S. Circuit Court of Appeals upheld their convictions.

Now, more than three decades later, that reading of the criminal provisions of federal mine safety law has emerged as one of the central issues as former Massey Energy CEO Don Blankenship tries to get out of jail.

Blankenship’s defense lawyers argue that U.S. District Judge Irene C. Berger was wrong to use similar jury instructions in the Blankenship case. They say the instructions from the Ferrell Mine Disaster case — called United States v. Jones — allowed Blankenship to be convicted without proof that he ever intended to commit a crime.

“The government fully exploited these novel willfulness instructions to obtain a conviction for not doing enough concerning safety rather than for intending to violate the law,” Blankenship’s lawyers argue in one of their appeal filings.

Prosecutors respond that the Jones case is anything but novel and, in fact, remains the leading ruling in West Virginia’s federal appeals circuit concerning criminal violations of the rules intended to keep the nation’s coal miners safe and healthy. Blankenship, the prosecutors say, is “in truth asking this court to make a brand new rule of law, one that would overturn venerable precedent here and create a split with virtually every other circuit.”

The Blankenship appeal travels far out into the weeds on some complicated legal issues that perhaps only lawyers who practice criminal law would care that much about, let alone understand. How exactly does one define a willful violation? What is “reckless disregard” and is it a crime? In some contexts, do defendants have to be familiar with the specific regulatory statute they are accused of violating?

But in some ways, the case is also at least partly about a somewhat simpler question that is especially relevant given West Virginia’s long history of mining deaths and disasters: Does a coal executive commit a crime if he knows one of his mines is racking up dangerous violations and he purposefully allows those violations to continue in the name of faster production and higher profits?

On Wednesday, a three-judge panel of the Richmond, Virginia-based 4th Circuit will confront these and other questions when it hears oral argument in Blankenship’s case. A ruling isn’t expected for several months.

The charge conference

Just after lunch on Nov. 16, 2015, the lawyers gathered in Berger’s courtroom on the fifth floor of the Robert C. Byrd U.S. Courthouse in Charleston. The jury was gone for the day.

Both sides had rested their cases, including Blankenship’s defense with the surprise announcement earlier that day that they would call no witnesses. Not even Blankenship himself would take the stand in his own defense. Closing arguments were set for the following morning.

It was time for what’s called the “charge conference.”

Berger was preparing to instruct the jury on the law they were apply to the facts in Blankenship’s case. Prosecutors and defense lawyers had already submitted their own lengthy requests for what instructions jurors should receive. Now, at the charge conference, each side would get to review the judge’s proposed “charge” to the jury, and get another shot at suggesting changes.

Among the allegations Blankenship faced — and the crime of which he was ultimately convicted — was conspiracy to willfully violate federal mine safety and health standards. So to decide Blankenship’s guilt or innocence, jurors needed to know what that all means. What is a willful violation?

Berger proposed to tell jurors that a willful violation is one that is done “knowingly, purposely and voluntarily,” either in “intentional disobedience” of a safety standard or “in reckless disregard” of its requirements. She also wanted to explain to jurors that the term “willfully” requires “an affirmative act either of commission or omission, not merely the careless omission of a duty.”

Eric Delinsky, one of Blankenship’s defense team, objected.

“We believe that it dilutes the willful standard to speak in terms of reckless in the regard of context of willfully,” Delinsky told the judge.

Assistant U.S. Attorney Steve Ruby, the lead prosecutor in the case, responded that the definition Berger was using came straight out of the Jones case, which he said was controlling in this judicial circuit. “I don’t think that it’s even discretionary for the court to give a different instruction,” Ruby added.

Berger overruled Delinsky. The judge included the willfulness definition in the 45 pages of instructions she read aloud to the jurors the next day. About three weeks later, following about 50 hours of deliberations over 10 days, the jury acquitted Blankenship of securities charges, but found him guilty of conspiracy to violate mine safety standards over a period of more than a year prior to the April 5, 2010, explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.

Blankenship has been in prison in California since May 12, serving a one-year sentence, the maximum allowed under current law.

U.S. vs. Jones

The case of U.S. vs. Jones is named for Kyle Jones, who was the mine superintendent at the Ferrell No. 17 Mine.

When the explosion occurred, the nation had only three years earlier expanded and strengthened federal mine safety laws. Coal communities had suffered still more disasters, despite passage of the Federal Coal Mine Health and Safety Act in 1969 following the November 1968 explosion that killed 78 workers at Farmington in Marion County.

“Here we have another tragedy,” then-United Mine Workers President Sam Church told reporters at the time. “And just when the coal companies are yelling for the regulations to be loosened.”

Killed at Ferrell were Carlos Lee Dent, 39, of Hewett; Howard Gillenwater, 28, of Alkol; Herbert E. Kinder III, 22, of Madison; Freddie W. Pridemore, 26, of Hewett; and Howard Williamson, 39, of Peach Creek, according to the U.S. Mine Safety and Health Administration report on the disaster.

Two years after the explosion, Westmoreland Coal pleaded guilty to criminal charges related to the blast and agreed to pay $600,000 in fines and contribute $475,000 for health care, education of physicians and safety training in Southern West Virginia.

Felony charges in the plea deal alleged that the company made false entries in mine books listing ventilation measurements that were never actually taken and reporting no hazards despite there being roof falls in the mine. Additional misdemeanor charges ranged from failing to ventilate certain mine areas to directing workers to enter areas that hadn’t first been checked for explosive methane gas.

After a 1983 trial before U.S. District Judge John T. Copenhaver, Jones was convicted of three of seven criminal counts brought against him. Gary Neil, who was shift supervisor on duty when the explosion occurred, was found guilty of two of four charges.

Jones was convicted for his role in the movement of a mine power center while it was energized, the failure to conduct weekly mine safety examinations and the failure to conduct a weekly examination in two specific areas of the mine in the weeks before the explosion.

Neil was convicted for his role in causing miners to enter uninspected idled areas of the mine. Jones was sentenced to 30 days in jail. Neil got probation.

In its decision on the appeal filed by Jones and Neil, the 4th Circuit noted that trial evidence indicated Jones saw the energized power center being moved and did not order it to be de-energized, instead encouraging “the movement to continue at a more rapid rate.”

The indictment against Jones, the 4th Circuit noted, charged that Jones required employees whose job it was to make weekly safety examinations “to perform many other duties which prevented them from adequately making the examinations on the shift they were assigned.” Evidence in the case, the appeals court said, showed that when employees complained they didn’t have time to do proper safety checks, Jones “casually dismissed the complaint with a statement that he (Jones) could do them ‘in four hours and sleep four hours.’”

At the end of trial, Copenhaver instructed the jury that a safety violation could be considered willful if was done “in reckless disregard” of that standard’s requirements. The judge added that “reckless disregard” means “the closing of the eyes to or deliberate indifference toward the requirements of a mandatory safety standard.”

At the same time, the judge also cautioned jurors that a willful violation also requires “an affirmative act either of commission or omission, not merely the careless omission of a duty.”

In upholding Copenhaver’s instructions, the 4th Circuit concluded that the judge’s language was similar to those used in other judicial circuits, noting specifically a 1974 ruling by the 6th U.S. Circuit Court of Appeals in a criminal mine safety case.

‘An American Political Prisoner’

In recent weeks, West Virginians have been opening their mailboxes to find a blue booklet with red and white lettering and a Thomas Jefferson quote warning about the power of “judiciary bodies” in the United States.

Blankenship says he sent the 67-page booklet, “An American Political Prisoner,” to 250,000 people across the state to describe his belief that his prosecution was rooted in a conspiracy against him by former U.S. Attorney Booth Goodwin, Sen. Joe Manchin, and other state Democrats because of Blankenship’s outspoken Republican political positions. Blankenship repeats his arguments about an alternative version of what caused the Upper Big Branch disaster, and about a cover-up of evidence of that version of events.

Blankenship wrote that the Obama administration had heralded his conviction “as a great triumph and a warning to all other CEOs.”

“It isn’t a legal triumph but it is a warning,” the booklet says. “It signals that this Justice Department is intent on turning industrial accidents into crimes even based on flimsy evidence.”

During the pre-trial motion period after his indictment, Blankenship raised many of these same issues, including arguing the local media had so saturated public opinion with negative stories that Blankenship couldn’t get a fair trial in Southern West Virginia. But Blankenship chose not to raise any of those issues in the appeal.

Instead, in appealing Blankenship’s conviction, defense lawyers focused much of their attention on arguing that Berger’s jury instructions were wrong. Essentially, the defense argues that the sort of “reckless disregard” cited by Berger was not enough to prove a crime.

“The reckless disregard standard dispensed with the need to prove that Blankenship knew his conduct would cause a violation of safety regulations, much less that his conduct was unlawful,” lead Blankenship defense lawyer Bill Taylor wrote in a 94-page opening brief. “Given the prosecution theory that Blankenship’s management decisions created circumstances in which those in the mines acted or failed to act in violation of safety regulations, the special willfulness instruction criminalized management decisions, even if made without any subjective intention or expectation of committing a mine safety violation.”

Ruby argued in the government’s brief that Berger’s instructions to the Blankenship jury were backed up by legal precedents from around the country going back nearly 70 years.

“No court, including the Supreme Court, has ever held that reckless disregard cannot form a component of willfulness in appropriate contexts, and this court would contradict decades of precedent were it to become the first,” Ruby wrote in his brief to the 4th Circuit.

The amicus brief

At least three statewide coal industry lobby groups, though, are highly concerned about how Berger outlined the criminal mine safety law in Blankenship’s case. Lawyers for the West Virginia Coal Association, the Ohio Coal Association and the Illinois Coal Association filed a “friend of the court” brief to outline their concerns for the 4th Circuit.

In their 40-page brief, the industry groups said that they “cannot sit idly by and allow the expansion of criminal law to the point that mere involvement of company management in certain affairs can serve as a basis, in whole or in part, for criminal prosecution.”

“Operating a coal mine is a difficult venture that presents tough decisions for its managers, who are required to navigate a regulatory minefield in order to operate a successful company,” the brief says.

“Those decisions, especially with respect to production, safety, and regulatory compliance, may at times be imperfect, prone to second-guessing, and, despite the best intentions, even incorrect,” it reads. “However, those decisions should not lead to criminal liability unless it is proven beyond a reasonable doubt that the individual possessed the ‘evil purpose’ necessary to establish that the conduct was illegal, not just general knowledge of the effects of broad regulatory involvement.”

The amicus brief, filed by a law firm whose lead partner has been Blankenship’s personal lawyer in some civil litigation, singled out Berger’s jury instructions from the Jones case. It said the instructions “permitted the jury to find that a defendant acted willfully if he or she knew the actions would cause a standard to be violated, or failed to take enough action necessary to comply with a standard.”

The industry lawyers argued that mine safety violations “are an unavoidable fact of mining coal” and said mine executives should not be prosecuted only because “in theory some (but not all) citations could potentially be avoided by expending additional money.”

While prosecutors did not file a formal response to the industry brief, their brief in the Blankenship appeal does offer some arguments that address the concerns raised by the industry lawyers.

For example, Ruby describes in his brief the hands-on approach by Blankenship to the smallest details of specific activities at just one of Massey’s many mines, a degree of micromanagement that most industry experts say reflects far more involvement than most coal executives — and a personal style that provided a wealth of evidence for prosecutors during Blankenship’s trial.

“Defendant may be correct that not every mine where workers die is the scene of law-breaking, but the evidence showed that this one was, and that he was behind it — and a jury of his peers fairly convicted him of his crime,” Ruby wrote.

Ruby also argues that the Jones case is a little bit more complicated than simply saying it’s always a crime if a mine supervisor knows about ongoing violations. The Jones ruling, for example, specifies that allowing violations to continue can’t be considered a crime if doing so was “accidental, mistaken” or caused by “other innocent acts.”

In both the Jones and Blankenship cases, jurors were instructed that “the term willfully requires an affirmative act,” even though that act can be one of commission or omission. The law, as described in both cases, requires a showing that the defendant knew the violations were occurring and decided to do something — or not do something — knowing that their action or inaction would cause the violations to continue.

Ruby also describes evidence against Blankenship that, like some of the evidence against Jones, suggested an affirmative inaction about ongoing violations at Upper Big Branch. At the Ferrell No. 17 Mine, Jones scoffed at miners who said they had too much other work to get mandated safety examinations completed on schedule.

At Upper Big Branch, miners and supervisors complained they didn’t have the time, staff or equipment to perform complete safety examinations, let alone properly spread crushed limestone throughout miles of underground tunnels to prevent explosions. Blankenship issued a memo ordering everyone to “run coal” and to worry about mine ventilation later, “at an appropriate time.”

“Although defendant sometimes spoke of concern for safety laws while CEO of Massey, trial evidence showed that those expressions were only lip service,” Ruby wrote.

Over the years, mine safety prosecutions have usually targeted low- to mid-level mine management, shift foremen or occasionally superintendents like Kyle Jones. Prosecutors say what made the Blankenship case different was not the legal theories they used, but simply the fact that they took those theories all the way up the corporate ladder.

“The only thing novel about the charge against [Blankenship] is that, in this case, it was pursued against the CEO of a major mining company instead of against low-ranking miners,” Ruby wrote. “Defendant may believe himself to be more important than those past defendants, and perhaps thought that his position insulated him from legal scrutiny, but there is nothing new about the legal authorities that were brought to bear in this prosecution.”

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

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