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A federal judge ruled with government prosecutors on many of the pending evidentiary motions that were decided on the eve of trial in the Don Blankenship case, according to a previously confidential transcript of a closed-door court session.

U.S. District Judge Irene Berger ruled for the prosecutors in many of the key questions about what evidence and argument could be presented in the trial of the former Massey CEO.

Berger granted motions from U.S. Attorney Booth Goodwin’s team to block the defense from arguing that federal mine safety standards were wrong. She also ruled that Blankenship cannot try to argue that his prosecution is politically motivated or present evidence about the economic importance of the coal industry.

Also, Berger denied a key defense motion to stop prosecutors from presenting evidence about Blankenship’s compensation and stock holdings.

“The evidence could be probative of motive, given the allegations contained in the indictment, and probative of the defendant’s conspiring to willfully, and I stress willfully, violate safety regulations,” the judge told lawyers during the closed-door hearing.

Berger also denied a motion by the defense to block the prosecution from having U.S. Mine Safety and Health Administration citations used as evidence in the case against Blankenship.

The judge granted a defense motion to prohibit evidence about previous criminal convictions of Massey subsidiaries in safety cases. Prosecutors had argued that such evidence would go to show Blankenship’s willfulness.

“I find the argument to be unpersuasive,” Berger said, according to the transcript. “If we take the argument to its logical conclusion, any time a defendant was aware of another having been previously convicted of the same conduct ... that he is alleged to have ... committed, that fact would be probative of intent and-or willfulness.”

The judge did rule out parts of the testimony of two prosecution expert witnesses. Mine safety expert Tracy Stumbo was prohibited from testifying about whether Massey officials had a “mutual understanding” that they would violate safety laws and thwart government inspections. And the judge said that prosecution financial expert Frank Turchio will not be able to testify about the “materiality” of statements made about after the Upper Big Branch Mine Disaster about Massey’s safety practices.

Berger said that she would wait to rule until she saw the proposed evidence on a motion by the government to prevent Blankenship from presenting evidence about his “purported good acts,” or mine safety initiatives that the defense says were above and beyond what the regulations required.

The judge ruled on the motions in a closed-door hearing held on the evening of Oct. 6, after prospective jurors had been sent home for the day. Members of the media and the public had been barred from the courtroom where the jury selection was taking place, and shortly before the motions hearing, the video feed into a separate courtroom for spectators malfunctioned.

After repeated requests from the Charleston Gazette-Mail, Berger released a partial transcript of the closed-door hearing on Tuesday.

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

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