Former Massey Energy CEO Don Blankenship refused on Monday to comment on a previously confidential memo that warned him of systematic safety problems at Massey mines less than a year before the April 2010 explosion that killed 29 miners at the company’s Upper Big Branch Mine in Raleigh County.
Blankenship did not respond to questions about the memo as he left the federal courthouse for the lunch break during the third day of jury selection in the federal criminal case against him. “No comment today,” said Eric Delinsky, one of Blankenship’s defense lawyers.
The latest daily report from court officials indicated that 13 more jurors had been dismissed for cause, meaning they gave U.S. District Judge Irene Berger reason to exclude them from the jury. But Berger is not disclosing how many potential jurors have been retained toward the 35 individuals she wants to qualify for service before allowing both sides to begin their own discretionary strikes from the pool.
As he left court at about 5 p.m. Monday, U.S. Attorney Booth Goodwin offered no details, but indicated that progress is being made during jury selection.
“We’re almost there,” Goodwin said during a brief discussion with reporters.
Blankenship, 65, faces three felony counts that allege he conspired to violate mine safety standards and hide the resulting hazards from Mine Safety and Health Administration inspectors. He also is charged with lying to securities regulators and the investing public about Massey’s safety practices — touting the company as always trying to comply with the law — in order to try to stop the company’s stock prices and his personal wealth from plummeting after that Upper Big Branch explosion.
Blankenship says that he is not guilty and is fighting the charges. His lawyers have indicated in court records that they hope to show that Blankenship was actually an innovator on many mine safety matters.
On Sunday night, Goodwin made public through a court filing a June 2009 memo in which a top Massey lawyer recounted serious safety concerns raised about Upper Big Branch and other mines shared by Bill Ross, a former federal Mine Safety and Health Administration official who was, at the time of the memo, a key Massey safety officer.
Prosecutors filed the memo in response to a motion from defense lawyers seeking to block the government from mentioning potential testimony from Ross during their opening statement at trial. Defense lawyers had sought to discuss documents concerning Ross — including a second, so-far undisclosed memo and apparently records of a meeting Ross had with Blankenship — during a closed-door hearing.
The Ross documents surfaced earlier this year during a Delaware lawsuit that Blankenship filed to try to force Alpha Natural Resources, which bought Massey in June 2011, to continue paying the legal costs in the criminal case. Prosecutors indicated that they only obtained some of the information about Ross’s concerns five years after they began their investigation and “months after the original indictment” of Blankenship in November 2014.
Jury selection continued for the third day on Monday, with another court session that was scheduled to begin at 9 a.m. at the Robert C. Byrd United States Courthouse in Charleston. U.S. Marshals and court security did not allow members of the media and other spectators upstairs in the building until 9:45 a.m.
The public remains barred from the courtroom where jury selection is occurring. Berger again questioned jurors at the bench with the sound muted to a video feed which was fed to a separate courtroom where spectators were permitted to watch. Berger has not ruled on a motion from the Charleston Gazette-Mail and West Virginia Public Broadcasting seeking to open the process to the public.