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The Don Blankenship appeal explained

Gazette-Mail file photo
Defense lawyer Bill Taylor answers questions from the press as Don Blankenship looks over his shoulder outside the federal courthouse in Charleston the day Blankenship was convicted.

What’s this case about?

Since May, former Massey Energy CEO Don Blankenship has been serving a one-year sentence in a federal prison in California. U.S. District Judge Irene Berger sentenced Blankenship to the maximum allowable jail time. He was convicted by a federal jury in December 2015 of conspiring to violate federal mine safety and health standards at Massey’s Upper Big Branch Mine over a 15-month period prior to the April 5, 2010, explosion that killed 29 miners.

Blankenship is appealing his conviction to the 4th U.S. Circuit Court of Appeals, the Richmond, Virginia-based appeals court that hears cases from West Virginia.

What are Blankenship’s arguments?

Blankenship’s defense attorneys raise four issues that they say should prompt the 4th Circuit to overturn his conviction:

1. They argue that Berger’s legal instructions to the jury wrongly allowed Blankenship to be convicted without proof of willfulness, or proof that he agreed that he or his conspirators would do something that Blankenship knew to be a crime.

2. They argue that the indictment against Blankenship did not specify which of the hundreds of different safety standards Blankenship was charged with willfully violating. Prosecutors respond that the indictment detailed the charged conspiracy “at length,” with allegations that included specific safety standards that were violated as part of the conspiracy, along with the overt acts that Blankenship himself committed.

3. They argue that Berger, over a defense objection, included in her jury instructions an explanation of the “reasonable doubt” legal standard. The instruction in question told jurors, “If the jury views the evidence in the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt, the jury of course should adopt the conclusion of innocence.” Generally, absent a jury request for such a definition, the 4th Circuit rule is that trial courts do not explain what “reasonable doubt” means, the defense argues. Prosecutors respond that, while some appeals courts have endorsed an instruction of the sort Berger gave, others have not, but none has reversed a conviction because of it.

4. They argue that Berger unfairly did not allow the defense a second cross-examination session for a central government witness, former Massey official Chris Blanchard. The defense lawyers wanted to ask Blanchard about what they argued were “new matters” brought up by the government during its re-direct questioning of Blanchard. Prosecutors argue that their re-direct did not raise any new questions or issues that hadn’t been covered in the defense’s cross-examination

How does the appeal work?

Much of the arguing in a federal court appeal is done through the writing of extensive legal memos by the two sides, and much of the appeals court’s work is done during a review of those memos by judges and by attorneys working as law clerks for those judges. In July, the Blankenship defense team filed an initial legal brief outlining their appeal arguments. Federal prosecutors filed their response in August. The Blankenship team got the last word, with a reply brief they filed last month.

On some cases, the appeals court then schedules a hearing called an “oral argument” where the judges can quiz the attorneys. In Blankenship’s case, that oral argument is scheduled for Wednesday in Richmond, Virginia. Defense attorney Bill Taylor will get 15 minutes to start the argument, Assistant U.S. Attorney Steve Ruby 20 minutes to respond and then Taylor five minutes for rebuttal.

Who will hear the case?

Like most appeals court cases, Blankenship’s case will initially be heard by a three-judge panel. The 17-judge 4th Circuit (15 judges and two senior status judges) says it uses a computer program “to achieve random selection” of three-judge panels and “random assignment of cases to panels.” But in situations where a previous panel of judges “has had significant prior involvement with a case, the case will be returned to that panel if possible,” the 4th Circuit says on its website.

In Blankenship’s case, the same three judges previously turned down an appeal by Blankenship that sought to force Berger and all other judges in the district to recuse themselves and also overruled Berger’s broad gag order that sealed all documents in the case the day after Blankenship was indicted.

Those judges were Chief Judge Roger Gregory, Judge James Wynn and Senior Status Judge Andre Davis. Gregory received a recess appointment — when Congress was out of session — by President Bill Clinton and was then reappointed by President George W. Bush. Wynn is a President Barack Obama appointee. Davis was appointed to a district court by Clinton and the appeals court by Obama.

At one time, the 4th Circuit was considered by many legal experts to be the most conservative appeals circuit in the country. But departures and the appointment of new judges by Obama have made the court more balanced.

How do they decide?

Appeals aren’t simply a matter of whether the appeals court judges agree or disagree with the lower court. Different sorts of legal questions are decided on varying “standards of review,” which describe the amount of deference that is given to a lower court. In Blankenship’s case, the parties agree that three of the four issues should be reviewed “de novo,” which means they are examined as if for the first time, with no deference given to the lower court. Prosecutors argue that on the issue of whether the defense should be able to re-cross Blanchard, a different standard that would give more deference to the trial court should apply, examining whether Berger abused her discretion on that issue.

How long will it take them to rule?

It’s possible that the court could rule very quickly, if the judges are clearly convinced that Blankenship’s arguments are correct and that he didn’t get a fair trial. Under that scenario, the judges would want to get him out of jail as soon as possible. A quick decision in that direction, though, seems unlikely in this case, given that the court declined — really without any sort of announced explanation — to allow him to remain free pending his appeal.

It’s more likely a decision could take several months. On average, the 4th Circuit takes a little more than two months following oral argument to issue a decision in a criminal appeal, according to government data.

What happens next?

If Blankenship wins, the case would be sent back to U.S. District Court for further proceedings, perhaps another trial. If his conviction is upheld, Blankenship could ask the full 4th Circuit to reconsider in a proceeding known as an “en banc” session. Eventually, Blankenship could also appeal to the U.S. Supreme Court, though that court accepts very few of the cases it is asked to hear.

Currently, Blankenship is scheduled to be released from prison on May 10, 2017, according to the U.S. Bureau of Prisons.

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

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