The Don Blankenship Trial - FAQ
With the prosecution and the defense also resting - without calling any of its own wtinesses, the trial of former Massey Energy CEO Don Blankenship is nearing its climax. For those who haven’t been following closely, here’s a brief overview of what the trial is all about.
Why is Don Blankenship on trial?
When Massey Energy’s Upper Big Branch Mine blew up in April 2010, killing 29 miners, federal authorities launched a massive criminal investigation of the explosion and Massey’s safety and financial practices. On Nov. 13, 2014, that probe culminated with a federal grand jury handing up an indictment against Blankenship.
What was Blankenship charged with?
Originally, Blankenship faced four criminal charges. The charges included three felonies – conspiracy to defraud the United States, making a false statement to the U.S. Securities and Exchange Commission, and to investors – and one misdemeanor, conspiracy to violate mine safety standards. Four months later, a superseding indictment consolidated the two conspiracy counts into one felony that alleged conspiracy to both violate mine safety standards and defraud the U.S. Mine Safety and Health Administration.
Essentially, the government alleges that Blankenship conspired to violate federal safety standards at Massey’s mines and to cover up those violations through a conspiracy to give underground workers advance notice of federal safety inspections. He also is charged with lying to securities regulators and committing stock fraud by orchestrating public statements that defended Massey’s safety practices in an effort to stop plummeting stock prices following the Upper Big Branch Mine Disaster. While the indictment does not specifically allege that Blankenship was responsible for the explosion, the charges do focus on events at that mine. The indictment outlines repeated violations at the UBB mine of federal safety rules meant to prevent mine explosions, such as those mandating proper ventilation and control of highly explosive coal dust.
Was Blankenship released on bond or is he spending his nights in jail?
When Blankenship made his first court appearance before U.S. Magistrate Judge R. Clarke VanDervort in Beckley on November 20, he was released after posting $5 million bail and entering a plea of not guilty. The conditions of Blankenship’s pre-trial release – that he stay in Southern West Virginia or Eastern Kentucky and that he stay away from fellow former Massey employees – have caused much controversy. The courts rejected several requests by Blankenship to travel to Las Vegas, where he says he now lives, and to lessen the restriction on his ability to talk to former coworkers and employees.
Has anyone else from Massey Energy been charged or convicted?
Prior to Blankenship’s indictment, four Massey Energy executives were convicted of federal charges. They include: former Massey miner Thomas Harrah, who spent 10 months in jail for faking a foreman’s license and lying to investigators; former Massey Energy security chief Hughie Elbert Stover, who spent 36 months in prison for obstruction and lying to government investigators about Massey’s practice of warning underground workers when safety inspectors were coming into a mine; former Upper Big Branch Mine superintendent Gary May, who was sentenced to 21 months in prison after pleading guilty to one count of conspiracy to thwart federal mine safety regulators; and former Massey executive David Hughart, who was sentenced to 42 months in jail after pleading guilty to one felony count of conspiracy to thwart federal mine safety enforcement and one misdemeanor count of conspiracy to violate U.S. Mine Safety and Health Administration standards. Defense lawyers for Blankenship have said that the government has identified about two dozen individuals who have been given immunity by prosecutors so that they would potentially testify against Blankenship.
Why did it take so long to begin the trial?
Under the federal Speedy Trial Act, criminal trials are supposed to begin within 70 days of charges being filed in order to comply with the right to a speedy trial contained in the 6th Amendment of the U.S. Constitution. Originally, Blankenship’s trial was scheduled to start on Jan. 26, 2015, but Blankenship’s defense team was given more time to prepare their case. The trial was pushed back to April and then to July. Finally, the two sides agreed to an Oct. 1, 2015, date.
Originally the proceedings were scheduled to be held in federal court in Beckley but in June, it was moved to Charleston, and the jury pool expanded to include the Southern West Virginia court district’s Charleston and Huntington divisions. The Charleston division includes Boone, Fayette, Kanawha, Logan, Mingo, Clay, Jackson, Lincoln, Nicholas, Roane, Wirt and Wood counties. The Huntington division includes Cabell, Mason, Putnam and Wayne counties. Blankenship wanted the case moved to either Northern West Virginia or to Baltimore, because defense lawyers argued he couldn’t get a fair trial in Southern West Virginia.
In September 2015, Blankenship’s lawyers had tried again to have the trial moved from Charleston and to further delay it. Berger declined.
Why didn't Blankenship testify?
Criminal defendants have a right to testify on their own behalf, under the Due Process Clause of the Fourteenth Amendment, the Compulsory Process Clause of the Sixth Amendment, and the Fifth Amendment’s privilege against self-incrimination. But if they don’t testify, jurors are routinely instructed that they cannot hold that against the defendant.
During the trial, jurors heard Blankenship speak thanks to audio recordings he made of himself while talking to other company officials.
Who is the judge presiding over the case?
That would be Judge Irene Berger. A graduate of West Virginia University’s College of Law, Berger was nominated by President Barack Obama in July 2009 to serve as U.S. District judge for the U.S. District Court for the Southern District of West Virginia. She was replacing David A. Faber. Upon her appointment, Berger became the first African-American female federal judge in West Virginia history. Berger was previously a Kanawha County Circuit Judge, an assistant U.S. Attorney in Charleston, an assistant prosecutor for Kanawha County, and a Legal Aid lawyer in Charleston. Berger grew up in McDowell County, the daughter of a coal miner.
Who is representing Blankenship?
Blankenship’s team includes several high-profile lawyers, including lead defense attorney Bill Taylor III, Blair Brown, Eric Delinsky, Steve Herman and Richard Miles Clark, from Washington, D.C.-based law firm Zuckerman Spaeder. He is also being represented by James Walls of Morgantown and Alex Macia of Charleston, both with the law firm Spilman Thomas & Battle.
How much is he paying them?
Blankenship is actually not paying for his attorneys thanks to a ruling earlier this year from Delaware Chancery Court Judge Andre G. Bouchard, who determined that Blankenship is entitled to have Alpha Natural Resources -- the company that purchased Massey Energy in 2011 -- pay his legal fees. Although it is unclear exactly how much money Blankenship’s attorneys are making, as of April 1, his unpaid legal fees had amounted to $5.8 million. Alpha recently sought through its bankruptcy case to avoid paying for Blankenship’s legal defense.
Who is prosecuting Blankenship?
The team of prosecutors includes U.S. Attorney Booth Goodwin and Assistant U.S. Attorneys Steve Ruby, Greg McVey and Gabriel Wohl.
Who are the jurors?
Little is known about the 15 jurors. Twelve of the 15 are actual jurors, and three are alternates. Throughout the trial, the courtroom’s jury box has room for only 14 chairs, so one juror sat just outside the jury box.
There are 11 woman and four men. We don’t know their names, ages, hometowns or occupations. The public and the media were excluded from listening to the jury selection process.
Judge Berger agreed to hold “voir dire” – the interviewing of individual jurors to ensure they can fairly decide the case – in private. She denied a request from the Charleston Gazette-Mail and West Virginia Public Broadcasting that the process be conducted in public. Under the law, there is a presumption that jury selection is open to the public and the press, and Judge Berger has not publicly explained how this case meets the legal test – a showing that secrecy is essential to preserve higher values and is narrowly tailored to serve that interest – to close the jury selection process.
We recently learned the last names of two jurors when each was called to the bench. One woman’s last name is Cunningham. She was called to the bench on Oct. 29 after she abruptly left the courtroom, apparently to go to the restroom. One man’s name is Rose. He was called to the bench on Nov. 6 for reasons that have not been publicly disclosed.
On Nov. 17 - prior to the jury beginning their deliberations - the court identified three women as the alternates, leaving eight women and four men to decide Blankenship’s fate. The three alternates were identified by the judge as Ms. Cunningham, Ms. Spencer and a woman with an undecipherable last name beginning with a B. indiscernible
Prior to being dismissed for the day on Nov. 17, Berger also addressed one of the jurors as Ms. Carte (it is unclear whether that is the correct spelling of her name).
How long has the trial lasted?
Jury selection began on Oct. 1 and a jury was seated on the morning of Oct. 7. There have been 24 days of testimony, with 27 government witnesses.
What happens now?
Lawyers on both sides will argue over the exact language of the instructions Berger will give to the jury about the law of the case - things like how is conspiracy defined - and then present closing arguments.
What happens to Blankenship if he is convicted?
If Blankenship is convicted of all three counts included in the superseding indictment, he could face a statutory maximum of 30 years in prison. The previous indictment included three felony charges and one misdemeanor that carried a total maximum sentence of 31 years. Any sentence would be decided by Berger, and would have to at least consider the range advised by the federal court system’s sentencing guidelines, and be based partly on a pre-sentence report prepared by the Probation Department.
What happens if Blankenship is found guilty but he decides he wants an appeal?
Defendants have a right to appeal a conviction or a sentence or both. Any appeal by Blankenship would go to first to the 4th U.S. Circuit Court of Appeals in Richmond, Va. Federal prosecutors generally cannot appeal an acquittal in a criminal case.
Has this happened before?
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.
Who is winning?
That probably depends on which side is asking the questions. Generally speaking, if the lawyers are doing their job, they are getting helpful testimony from the witness, whether it is their side’s witness or they are cross-examining someone called to the stand by the other side. The organization of a trial creates a back-and-forth between the two sides – and in the news coverage – that can be confusing. Eventually the jurors will do the difficult job of sorting out what evidence they believe and whether they think Blankenship is guilty or innocent.
For continuing coverage of the Blankenship trial visit http://www.wvgazettemail.com/blankenship