In October 2005, then-Massey Energy CEO Don Blankenship sent the superintendents of his underground mines a now-familiar memo that told them to ignore instructions “to do anything other than run coal.”
“This memo is necessary only because we seem not to understand that the coal pays the bills,” Blankenship said in the widely circulated memo.
Blankenship’s critics have frequently pointed to the memo as proof that he put coal production and profits ahead of worker safety. His defenders say the memo was misunderstood, and point to a follow-up note a week later that said safety “is our first responsibility.”
Now, with Blankenship facing three felony charges that allege he conspired to violate mine safety standards and lied to securities regulators, the “run coal” memo has resurfaced. Prosecutors say they might use it in Blankenship’s criminal trial.
Defense lawyers want to block a jury from ever seeing the memo. They say a memo written in October 2005 is irrelevant to an indictment for criminal acts allegedly committed between January 2008 and April 2010 and that the memo would unfairly prejudice the jury against Blankenship.
The memo is among a wide variety of potential evidence that Blankenship’s defense team hopes to keep away from the jury. In new legal motions filed last week, the defense team, led by Washington, D.C., lawyer Bill Taylor, outlined a long list of material it wants thrown out of the case: all of the violations issued to Massey’s Upper Big Branch Mine; any of Blankenship’s public statements after the April 2010 disaster at the mine; discussion of Blankenship’s pay and stock holdings; and earlier guilty pleas by Massey subsidiaries to mine safety crimes.
Prosecutors have not yet responded to Blankenship’s “motions in limine,” or motions filed before the trial to try to exclude evidence from the case, but Assistant U.S. Attorney Steve Ruby filed his own motion, asking Berger to not allow Blankenship’s lawyers to present jurors with potential evidence that Ruby argued is little more than a “litany of excuses” for Massey violating safety laws at Upper Big Branch “thousands of times . . . the same, readily preventable violations, over and over — with [Blankenship’s] full knowledge an under his supervision.”
Ruby wants Berger to prevent the defense from making the case about Blankenship’s claims that he was a safety innovator and that Massey’s mines weren’t dangerous, or about whether federal mine safety standards were incorrect or misguided, or about “political considerations concerning the coal industry” or about “the economic state” of that industry.
“These claims may be convenient excuses, but they are not legal defenses,” Ruby said in his motion last week. “In a court of law, what matters is the law and whether it was violated. Extralegal excuse-making stops at the courthouse door.”
As Blankenship’s scheduled trial date of Oct. 1 approaches, the two sides are trying to shape what evidence will be heard and what legal arguments will be made before a U.S. District Court jury that will meet in Charleston.
Defense lawyers filed 16 motions trying to keep out potential government evidence. Prosecutors filed one motion that outlined 11 types of material they don’t want considered by the jury. Both sides get to respond in legal briefs this week, prior to a pre-trial ruling by Berger.
Generally, evidence must be determined to be “relevant” to be used in a criminal trial. Evidence is considered relevant if it has a tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. Even if evidence is relevant, though, it can be excluded if its “probative value” is substantially outweighed by the danger that it will create unfair prejudice or mislead the jury.
Not surprisingly, defense lawyers are trying to narrow the amount of potentially negative evidence, especially about Massey’s troubled safety history, that prosecutors can use at trial.
For example, the defense wants to block the use of any testimony by Blankenship in previous civil cases against Massey. They complain that prosecutors do not specify what testimony from which of the civil lawsuits against Massey the government wants to use in the criminal case.
“The defense can only guess at any of the numerous reasons why the government might seek to offer this advice, not to mention which of the multiple civil lawsuits it may choose from,” Blankenship’s lawyers wrote in one of their motions.
Defense lawyers also want to exclude any discussion of previous guilty pleas by Massey’s Aracoma Coal Co. and White Buck Coal Co. subsidiaries in mine safety cases. They argue that, because the indictment against Blankenship focuses on the Upper Big Branch Mine, incidents at other Massey operations are irrelevant. The defense also says that evidence about those guilty pleas would be unfair and create jury confusion.
Prosecutors, on the other hand, want to avoid a trial in which Blankenship tried to convince jurors that some number of safety and health violations can’t be avoided by the coal industry. They note that, in an earlier legal brief, Blankenship’s lawyers said allegations in the indictment against Blankenship, even if assumed to be true, prove only “that mine safety violations at UBB were an unfortunate — and incidental — by product of Mr. Blankenship’s aggressive business strategy.”
Prosecutors now want to block testimony from a Blankenship defense team expert that it was important for Blankenship “not to waste corporate resources,” although they suggest that such testimony would “suggest that devoting necessary resources to following the mine safety laws was, at least at [Blankenship’s] company, viewed simply as a waste.”
The two sides also are arguing over potential evidence about whether Blankenship was trying to improve the safety performance at Massey. Defense lawyers want the judge to prevent the government from arguing that a Massey program aimed at cutting the company’s violations in half actually reflects Blankenship’s “authorization of the remaining violations.”
“The government may claim that by setting a violation reduction goal of less than 100 percent, Mr. Blankenship authorized whatever percentage of safety violations remained,” the defense lawyers said. “For the government to pluck a figure or two from the context of a much larger company effort and use it to suggest that the violation-reduction campaign was actually an authorization of unlawful conduct defies any reasonable inference and is fundamentally misleading.”
Prosecutors, though, want the judge to block any effort by the defense to present evidence about “other good acts and noncriminal conduct,” such that the Upper Big Branch Mine “did follow the safety laws some of the time.”
“Notably, the superseding indictment does not charge that defendant or his co-conspirators always violated such standards or invariably made false statements,” Ruby said in his court filing. “Rather, the conspiracy described in the superseding indictment . . . is one in which law-breaking was managed — not carried out indiscriminately, but rather as a calculated part of defendant’s business strategy.
“When it made financial sense to follow the safety laws, defendant and his co-conspirators did so,” Ruby wrote. “When it instead made financial sense [at least in the short term] to violate those laws, defendant and his co-conspirators violated them.
“Evidence of good acts or noncriminal conduct to negate the inference of criminal conduct is generally irrelevant and inadmissible,” Ruby wrote. “A defendant charged in a cocaine distribution conspiracy, for example, may not offer evidence of the many prospective customers that he and his co-conspirators allowed to pass by without attempting to sell them cocaine.”
Reach Ken Ward Jr. at firstname.lastname@example.org, 304-348-1702 or follow @kenwardjr on Twitter.