Legal skirmishes continue in case of former coal executive Don Blankenship

The flurry of legal motions and actions continue at the U.S. District Court for the Southern District of West Virginia as the trial for former Massey Energy CEO Don Blankenship gets closer – or not.

The Justice Department, on behalf of the U.S. Mine Safety and Health Administration, had charged Blankenship late last year with ordering safety violations at his company, leading to an April 2010 explosion at the Upper Big Branch (UBB) underground coal mine that killed 29 miners. Blankenship retired from Massey Energy, then Central Appalachia’s biggest coal producer, before it was taken over in 2011 by Alpha Natural Resources.

On Sept. 24, Judge Irene Berger denied a Blankenship motion for a trial delay. Said the Sept. 11 defense motion for that delay: “Mr. Blankenship, through counsel, hereby moves on an emergency basis to reschedule the October 1 trial date. After nine months of denying their existence and misrepresenting the status of documents in the possession of the Mine Health and Safety Administration, the government produced on Wednesday, September 9, a disc containing 72,700 pages of MSHA documents. It is impossible to review these documents, not to mention the additional documents that MSHA will produce in response to the subpoena ordered by the Court, and use them to prepare Mr. Blankenship’s defense by the current trial date of October 1.

“Worse, based on very preliminary electronic searches conducted immediately upon uploading the production, the defense has determined that key documents are missing from the production, including the emails of MSHA inspectors and correspondence from MSHA ‘applaud[ing]’ Massey’s hazard elimination program.

The now-denied motion added: “Blithely ignoring that Mr. Blankenship has been charged since November of last year and that his liberty has been curtailed at its insistence since then, the government produced 72,700 pages from the files of the agency responsible for regulating the UBB mine three weeks before trial. It is unfair and professionally irresponsible. It violates Mr. Blankenship’s right to a fair trial and the clear policies of the United States Department of Justice.”

Blankenship wants this case moved to northern West Virginia or Maryland

But on the same day as this motion was denied, Blankenship on Sept. 24 again lodged a motion for a change in venue, which if granted would itself delay the trial. The judge had earlier this year denied another change in venue motion.

“Defendant Donald L. Blankenship hereby renews his motion for an order transferring this case for trial to the District of Maryland, Northern Division, or, alternatively, to the Northern District of West Virginia, Martinsburg Division,” said the Sept. 24 motion. “This renewed motion for transfer is made pursuant to the Due Process Clause of the Fifth Amendment to the United States Constitution and pursuant to Federal Rule of Criminal Procedure 21. It incorporates by reference all the arguments and exhibits contained in the initial motion for transfer, supporting memorandum, and the reply.

“That initial motion argued that transfer was necessary because, among other things, saturation-level prejudicial publicity in this district has created a high degree of prejudgment about Mr. Blankenship’s culpability, an erroneous impression that he is on trial for causing the UBB explosion, and a powerful sense of community pressure for a guilty verdict. The environment has not changed since the filing of the motion to transfer on February 20, 2015. As demonstrated in this renewed motion and supporting exhibits, the same media sources that saturated the Beckley Division with extensive and prejudicial news coverage have similarly saturated the Charleston and Huntington Divisions. The venue surveys of the Beckley and Charleston Divisions submitted with the motion to transfer and reply showed nearly identical levels of knowledge, prejudgment, and bias; there is no reason to believe that prospective jurors from the Huntington Division will be any different.

“The defense submits with this motion television and newspaper coverage relevant to this case, starting with the date when exhibits in the motion to transfer stopped through August 31, 2015. We also submit with this motion examples of highly prejudicial social media. Finally, we submit the expert declaration of Scott Armstrong, a journalist who has provided expert opinions about the extent and impact of news coverage in other high-publicity criminal cases, including United States v. Skilling. Mr. Armstrong has reviewed the relevant media, including recent news coverage since the filing of the original transfer motion, in this district and in the two alternative districts proposed by the defense. He observes that news coverage in this district is magnitudes more pervasive and hostile toward Mr. Blankenship than in the other two districts, and that local coverage routinely links the charges against Mr. Blankenship to his alleged responsibility for the UBB disaster and the deaths of the 29 despite the fact that he is not charged with causing the explosion.”

The Blankenship motion notes that southern West Virginia is “coal country,” with, for example, three of the five largest coal producing counties in West Virginia being in the Charleston Division. Notable is that northern West Virginia is also a major coal production area, but Massey Energy had no mines there and the Martinsburg Division where Blankenship wants this case transferred is out of the coal production region.

The judge has been busy lately with various other motions from the defense. On Sept. 10 alone, for example, the judge denied: a motion to sever Count One of the federal charges from Counts Two and Three; and a motion to dismiss Count One for failure to state an offense by failing to identify the particular mandatory health or safety standards that Blankenship allegedly conspired to willfully violate.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.