With prosecutors nearing the end of their case against Don Blankenship, defense lawyers are preparing to tell their side of the story with a new effort to have jurors hear more recordings of telephone calls — this time calls that paint a more flattering picture of the former Massey CEO.
After trial ended for the day on Tuesday, the defense team notified U.S. District Judge Irene Berger of their proposal and filed with the court transcripts of 17 calls they want the jury to hear.
The calls portray Blankenship giving instructions to improve safety at Massey operations and to reduce violations the company’s mines receive from the federal Mine Safety and Health Administration. The calls also show Blankenship being updated periodically on Massey’s safety efforts.
“These recordings show that Mr. Blankenship did not intend to willfully violate safety standards at UBB, and that he believed that Massey did not condone safety violations and strove to comply with federal law,” defense lawyers said in their court filing. Defense lawyers characterized the calls as “relevant, admissible and highly exculpatory.”
Berger has not yet ruled on the calls, and as of early Wednesday evening, U.S. Attorney Booth Goodwin’s team had not yet filed a response with the court.
Jurors had the day off Wednesday for Veterans Day, and are expected back in court at 9 a.m. Thursday for the 24th day of testimony in the trial.
Blankenship, 65, faces a statutory maximum of 30 years in prison if convicted of all three felony counts against him. The former Massey CEO is charged with conspiring to violate mine safety standards to thwart MSHA inspections and enforcement. He also is charged with lying to securities regulators and committing stock fraud in connection with the statements issued after the April 2010 explosion that killed 29 miners at the company’s Upper Big Branch Mine in Raleigh County.
When court resumes on Thursday morning, defense lawyer James Walls is expected to continue his cross-examination of FBI Special Agent Jim Lafferty, who is the government’s last witness in its case against Blankenship.
Prosecutors have repeatedly played for jurors portions of the 1,600 telephone conversations that Blankenship recorded when talking on his office phone to Massey officials and various other individuals. The government has used the calls to focus jurors on Blankenship’s keen interest in Massey stock prices and his own financial portfolio, as well as the former CEO’s concerns about keeping secret the warnings he received about safety problems at the company’s mines.
Defense lawyers want to have jurors hear, for example, Blankenship telling then-Massey Chief Operating Officer Chris Adkins that he wants Adkins to focus on reducing safety violations.
“To me, we got to have a process or a form that deals with every type of violation we are getting that prevents us from getting it,” Blankenship told Adkins in a July 7, 2009, call. “I didn’t know if you were taking my thoughts to heart or whether I need to pound on you to get started, but you’re moving along, right?”
In a footnote in their notice to the court, defense lawyers acknowledge that Berger previously granted a prosecution pre-trial motion that excluded from the trial any telephone recordings offered by the defense.
Prosecutors had argued that the telephone calls were inadmissible hearsay and that federal court rules do not allow an exception for “self-serving, exculpatory statements made by a party which are being sought for admission by that same party.” Prosecutors noted that the recordings were made by Blankenship himself “when he chose to press the button on his office recording device.”
Berger agreed with prosecutors, granting their motion during a hearing on the eve of trial.
Defense lawyers argue in their new court filing that the recordings are admissible because they are being offered not to prove the truth of what was said, but to show Blankenship’s “state of mind” at the time the recordings were made. They say that the calls at issue were made long before the period covered by Blankenship’s indictment — January 2008 through April 2010 — and that therefore Blankenship “had not opportunity or reason to reflect or to misrepresent his state of mind in these calls.”