Experts debate impact of Blankenship prosecution

Experts debate impact of Blankenship prosecution

Don Blankenship (right) walks from the federal court house to the Spilman Thomas & Battle law offices with his attorneys, including Eric Delinsky (left) during a lunch break for potential jurors on the first day of jury selection for his trial, Thursday.

As jury selection continues for the trial in the criminal case against former Massey Energy CEO Don Blankenship, mine safety advocates say such prosecutions are extremely rare and that they hope the landmark case helps discourage other coal industry executives from condoning lawbreaking in the mines.

“I think it will have a real impact that will temper the decisions of the hierarchy at coal companies,” said longtime mine safety advocate Davitt McAteer. “I think it’s a sea change. It’s just a remarkable turn of events.”

McAteer, who directed the U.S. Mine Safety and Health Administration during the Clinton administration, led an independent team that investigated the Upper Big Branch Mine Disaster and blamed the deaths on a corporate culture at Massey that put production ahead of worker safety.

McAteer also had a hand in what was likely the previous highest-ranking coal executive prosecuted by the federal government.

After eight miners died in December 1992 at Southmountain Coal in Virginia, mine operator William Ridley Elkins pleaded guilty and was sentenced to six months in prison. At the time, though, Southmountain was a relatively small company, compared to Massey, which had been listed as the nation’s sixth largest coal producer at the time of the Upper Big Branch. “Historically, prosecutions of a top coal company executive for mine safety violations isn’t rare — it’s unprecedented,” said Pat McGinley, a West Virginia University law professor who served on the McAteer Upper Big Branch investigation team. McGinley outlined a number of reasons for the lack of such cases over the years: prosecutors had few resources, compared to armies of lawyers coal executives could hire; gathering evidence to charge and convict a coal executive is hard, especially when miners and others in the coalfields are afraid to come forward and cooperate with the government; state court prosecutors and judges are elected, and taking on the coal industry was rarely seen as a solid political strategy.

“The notion that coal bosses were implicitly immune from criminal prosecution became rooted in the culture of coalfield communities, a perspective that was so deeply ingrained that it continued into the 21st century,” McGinley said.

After much public criticism over the lack of prosecutions of top Wall Street executives related to the financial meltdown, the U.S. Department of Justice said earlier this month it will focus more on prosecuting individual corporate officials, not just companies.

“They are responding to what is pretty obvious,” said Jane Barrett, a University of Maryland law professor who has written about the issue. “By prosecuting just the companies, you are not going to change behavior. Unless someone knows they have a personal stake, it is easy to make decisions to break the law.”

Barrett agreed with McGinley that mine safety cases against coal company executives aren’t easy to prosecute.

“Certainly it takes a lot of resources to walk up the corporate ladder to get to the top,” Barrett said. “You need evidence. You’ve got to establish some level of knowledge of what was going on. That can be difficult.”

In Blankenship’s case, though, many observers say his hands-on approach — requiring frequent mine-by-mine production reports and firing off testy memos to mine managers — makes him for vulnerable to prosecution.

“That’s what the government is going to focus on,” Barrett said. “You can’t manage every minute detail and then claim you didn’t know what was going on.”

Blankenship faces three felony counts alleging that before the Upper Big Branch Mine Disaster, he conspired to violate mine safety standards and thwart government inspections at the mine, where 29 workers died in an April 5, 2010, explosion. After the disaster, prosecutors charge, Blankenship lied to securities regulators and the investing public about Massey safety practices — boasting that the company tried to always comply with all government rules — to try to stop Massey stock prices from plummeting.

Blankenship says he is not guilty and is fighting the charges.

Jury selection began last week, and is expected to continue Monday morning at the Robert C. Byrd United States Courthouse in Charleston. U.S. District Judge Irene Berger has barred media and the public from the courtroom, and has turned off the sound to a second courtroom where spectators are allowed to watch a video feed of the jury selection process. As of Saturday afternoon, the judge had not ruled on a motion filed by the Charleston Gazette-Mail and West Virginia Public Broadcasting asking that the jury selection be conducted in open court. Blankenship’s lawyers opposed the media request, and U.S. Attorney Booth Goodwin declined to take a position on the matter.

Bill Raney, president of the West Virginia Coal Association, declined to comment on the Blankenship prosecution and its potential impact on the mining industry.

Tony Oppegard, a longtime mine safety advocate in Kentucky, said that the impact of prosecuting Blankenship could be lessened because other coal executives don’t generally exercise the same level of control over day-to-day operations.

“It’s an historic indictment, but its impact is less than some people might think,” Oppegard said. “It’s not going to send chills down the spines of most coal executives because they are way off, many miles away and are not involved in the day-to-day decisions.”

Oppegard said another issue that could reduce the impact of the Blankenship prosecution is the ongoing decline of the coal industry in Appalachia.

“This prosecution means a lot less now than it would have 10 or 20 years ago, when the industry was bigger,” Oppegard said. “If they had done this when the mining industry and employment was high, it would have sent a much stronger message to the industry.”

Oppegard said that another problem is that federal law makes criminal violations of mine safety standards misdemeanors — punishable of a maximum of one year in prison — rather than felonies.

“That’s a major weakness of the fundamental structure of the law,” Oppegard said. “It’s harder to get prosecutors interested in misdemeanors.”

In Blankenship’s case, 25 years of the maximum statutory sentence of 30 years come from the two securities fraud charges against the former Massey CEO. And the conspiracy charge against him is a felony, punishable with up to five years in prison, only because it is tied not just to mine safety violations, but thwarting mine safety inspectors.

“Sadly, as punishments for federal crimes go, the penalty for plotting to break America’s mine safety laws pale in comparison to misleading Wall Street,” said Bruce Stanley, a Pittsburgh lawyer who represented the families of two miners killed in a January 2006 fire at Massey’s Aracoma Mine in Logan County.

In the end, mine safety experts say that, while the Blankenship case alone isn’t the answer to protecting miners — and the former Massey CEO still hasn’t been convicted — just bringing the case is a step in the right direction to helping miners and workers in other dangerous industries.

“It’s not a magic bullet, but it would direct attention to the high-level organizational factors that drive decisions on the shop floor,” said Celeste Monforton, a worker safety advocate who also served on McAteer’s Upper Big Branch team. “Our safety oversight programs focus on problems with equipment, worker mistakes and training. They ignore what happens upstream — the behavior at the top of the organization which creates the environment for the downstream failures.”

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

Funerals for Monday, January 27, 2020

Davis, Valerie - 11 a.m., Cunningham Memorial Park, St. Albans.

Hamrick, Leonard - 1 p.m., Waters Funeral Chapel, Summersville.

Hughes Jr., Denver - 1 p.m., Curry Funeral Home, Alum Creek.

Keen, Cora - 2 p.m., Tyler Mountain Memory Gardens, Cross Lanes.

Lazear, Elizabeth - 7 p.m., Keller Funeral Home, Dunbar.

Masters, Delores - 1 p.m., Glen Ferris Apostolic Church, Glen Ferris.

Milroy, Miller - 11 a.m., Simons-Coleman Funeral Home, Richwood.

Petro, Edith - 11 a.m., Cunningham-Parker-Johnson Funeral Home, Charleston.

Phelps, Herbert - 2 p.m., Chapman Funeral Home, Hurricane.

Stanley, Gary - 1 p.m., Pryor Funeral Home, East Bank.

Stewart, Donna - 1 p.m., First United Methodist Church, South Charleston.

Walker, Iva - 1 p.m., Roush Funeral Home, Ravenswood.

Wilkinson, Catharine - Noon, Raynes Funeral Home, Eleanor Chapel.

Williams, Joseph - 3 p.m., Tyler Mountain Memory Gardens, Cross Lanes.