Essential reporting in volatile times.

Click here to stay informed and subscribe to The Charleston Gazette-Mail.

Click #isupportlocal for more information on supporting our local journalists.


Learn more about HD Media

Blankenship again urges Supreme Court to hear appeal of his conviction

Don Blankenship

Attorneys for Don Blankenship made their last pitch this week to the U.S. Supreme Court, telling justices they should hear the former Massey Energy CEO’s criminal appeal so that other corporate executives aren’t subject to similar prosecutions for workplace safety violations.

Blankenship’s legal team on Thursday filed a reply to an earlier legal brief in which the Trump administration’s Department of Justice defended the conviction of Blankenship and urged the court not to hear his appeal.

The 17-page filing from Blankenship’s lawyers argues that lower court rulings in the case “threaten to dramatically expand federal criminal liability in a wide range of contexts,” including instances where corporate executives “should have known that an act or omission would lead to safety violations,” regardless of whether that executive “wanted violations to occur or continue.”

Bill Taylor, Blankenship’s lead defense lawyer, wrote in the new court filing that because a 4th U.S. Circuit Court of Appeals ruling on Blankenship “could be applied in future cases — especially in prosecutions of corporate officials,” the justices should “summarily reverse,” Blankenship’s conviction, which would mean throwing it out without oral argument before the court.

Blankenship’s petition to the Supreme Court is a statistical long shot. The court hears only about 80 cases each year out of the 7,000 to 8,000 appeals that are filed annually. About another 100 cases are decided by the court without a hearing, according to the court’s website.

The court’s online docket indicates that Blankenship’s petition for appeal is scheduled for potential discussion among the justices during their private conference on Oct. 6.

Blankenship, once one of the most powerful men in the Appalachian coalfields, was convicted by a federal jury in December 2005 of conspiring to violate mine safety and health standards at Massey’s Upper Big Branch Mine in Raleigh County, where 29 miners died in an April 5, 2010, explosion.

While Blankenship was not charged with causing the disaster, the accusations against him focused on rampant violations of safety standards — mine ventilation, roof support and dust control — known for decades to be effective in preventing underground explosions, and the prosecutors alleged that the conspiracy to violate those standards started on Jan. 1, 2008, and continued through April 9, 2010, or four days after the mine disaster.

Investigations by the U.S. Mine Safety and Health Administration, the Governor’s Independent Investigation Panel, led by longtime mine safety advocate Davitt McAteer, the state Office of Miners Health, Safety and Training, and the United Mine Workers union agreed that the mine disaster was caused by a longtime pattern of safety violations by Massey and by Blankenship’s insistence that the company put coal production and profits ahead of safety protections for miners.

The Blankenship appeal petition focuses on an argument that U.S. District Judge Irene Berger incorrectly instructed jurors that Blankenship’s “reckless disregard” of federal mine safety and health standards amounted to the criminal willfulness needed for a conviction.

In their reply filing, Blankenship’s lawyers point the justices to a related instruction in which Berger advised jurors they could convict Blankenship, or someone else in a supervisory role at a coal company, if they knew that some act was not being performed that led to a safety violation, and “knowingly, purposefully, and voluntarily” allowed that omission to continue. Blankenship’s lawyers argue the instructions “imposed no state-of-mind requirement as to whether it was necessary to take the action in order to comply with a safety regulation.”

In affirming Blankenship’s conviction, the 4th Circuit cited an earlier ruling — which grew out of the 1980 Ferrell Mine Disaster in which five miners died — that said mining officials could be convicted if they recklessly disregarded safety rules. The 4th Circuit said that Congress saw criminal penalties as a mechanism to punish “habitual” and “chronic violators who choose to pay fines rather than fix safety violations. The court said that “a long history of repeated failures, warnings, and explanations of the significance of the failures, combined with the knowledge of legal obligations, readily amounts to willfulness.”

Writing for the 4th Circuit, Judge James Wynn noted that many of the violations at Upper Big Branch were for problems “that were key contributing factors” to the mine explosion. Wynn added that Blankenship “was aware of the violations at the Upper Big Branch mine in the years leading up to the accident, receiving daily reports showing the numerous citations for safety violations at the mine.”

Blankenship’s lawyers also argue in the Supreme Court petition that Berger was wrong to deny the defense a chance for a second cross-examination of former Massey official Chris Blanchard, a major government witness.

Berger sentenced Blankenship to one year in prison and a $250,000 fine, both the maximum allowable for a criminal mine safety violation. The judge said that Blankenship should have been someone for West Virginians “to tout as a West Virginia success story,” but that instead he was going to jail for his “part in a dangerous conspiracy.”

Since being released from custody in May, Blankenship — described by prosecutors as “fabulously wealthy” — has been funding a public relations campaign to promote his argument that he was prosecuted because of a conspiracy among Democratic political leaders and his theories about what caused the Upper Big Branch disaster. Blankenship’s attorneys recounted some of those arguments in their original Supreme Court petition, telling justices that the “context” of the appeal “cannot be ignored.” The attorneys, though, did not raise any legal questions related to those issues.

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