By Taylor Kuykendall

Former Massey Energy CEO Don Blankenship is standing trial for lying to securities regulators and investors and commanding a corporate-wide conspiracy to violate mine safety regulations. While prosecutors will not take on the challenge of proving his actions caused an explosion that killed 29 miners, the arguments and evidence to date closely follow the findings of investigatory reports that lay blame for the explosion at the executive's doorstep.

As the jury and alternates — 11 women and four men — listens to the arguments on both sides, they will not be asked to wade into the weighty issue of whether or not Blankenship's actions led to an explosion. In previous filings, the prosecution has explicitly said they will not seek to prove whether or not that was true, and the defense has already threatened to counter such an assertion, should it arise, with Blankenship's own theory of the explosion.

Blankenship is charged under the same portion of U.S. law that one would face if the government was trying someone for tax fraud.

"It's the same legal concept here," explained Michael Hissam, a partner with law firm Bailey & Glasser who is also a former Assistant U.S. Attorney for the Southern District of West Virginia. Hissam also worked on the investigation of Massey's Upper Big Branch mine. "Blankenship is charged with a conspiracy to defraud [the U.S. Mine Safety and Health Administration] and that's a felony."

The evidence, however, has a sharp focus on exactly the sort of issues an independent panel, multiple government agencies and a union investigation have concluded was the result of the explosion. At the heart of most of those reports is the assertion that a corporate culture focused on production over safety — including intimidation — resulted in improperly maintained equipment that ignited a gas explosion that would later fuel a massive blast of coal dust that was knowingly not treated according to mine safety law.

By avoiding the cause of the explosion, prosecutors may avoid a potentially messy process involving competing experts on the science and forensics of the Upper Big Branch coal mine incident while still pursuing charges that could stick the 65-year-old Blankenship with up to 30 years imprisonment.

"I think it was a wise decision by the U.S. Attorney's Office because Blankenship … did that quote-unquote documentary that he paid the filmmakers to do so he could put out his theory of why the mine blew up," said Tony Oppegard, a Kentucky attorney who specializes in defending coal miners. "I think had they charged him with causing the explosion, you would have had this sideshow at the trial of competing experts on why did the mine blow up. I know from first-hand experience — you can have an expert say anything."

Blankenship's film largely re-asserted Massey's official theory of the explosion. Blankenship said in the documentary that "accidents happen" and that while they can be prevented, he suggested other conclusions drawn from the investigation of the explosion stem from "propaganda and politics."

Blankenship, who has pleaded not guilty to charges against him, blamed a sudden inundation of natural gas for the explosion. Several participants in the film, including mine experts and Sen. Joe Manchin, called foul shortly after its release suggesting they were tricked into participating or their interviews were selectively edited.

In a court order released Oct. 7, Blankenship's film appears to have backfired on him. The judge cited the film as one reason for denying his motion to move the trial to another venue.

"It is uncontested that this video, produced by the defendant, 'invited media attention,' and combined with the indictment, created a media spotlight, particularly in light of the defendant's declarations of innocence and perceived victimization," the judge wrote. "The Fourth Circuit has stated that 'a defendant should not be allowed to manipulate the criminal justice system by generating publicity and then using that same publicity to support his claim that the media attention surrounding his case created a presumption of prejudice.'"

“All you need for an acquittal is one juror.”

 Tony Oppegard, Kentucky attorney

It may not be Blankenship's only backfire. His successful effort to compel Alpha Natural Resources Inc., which bought Massey after the explosion, to pay for his legal proceedings appears to be the source of a trove of evidence prosecutors say shows Blankenship was well aware of safety concerns at Massey operations.

Another reason prosecutors may be avoiding the cause of the explosion, Oppegard said, is that Blankenship's attorneys would have been able to overwhelm the court and prosecutors with expert witnesses and potentially plant a seed of doubt in jurors' minds if the trial were to pivot to the cause of the explosion.

"All you need for an acquittal is one juror," Oppegard said.

By instead focusing on the broader charge of conspiring to defraud the government, Hissam said prosecutors do not need concrete evidence of a specific agreement or to show that Blankenship was directly involved with every violation that led to the disaster. Had they pursued manslaughter charges or tried to focus on the individual violations, Hissam said the government would have needed to take a more specific focus on MSHA violations and inspectors who were at the mine.

"It doesn't work that way," Hissam said. "That is why prosecutors charged conspiracy because conspiracy law is very broad and in this case it's much broader than charging individual, tick by tick, tack by tack citations or violations of health and safety standards."

However, the defense could try to pivot to a more MSHA-heavy trial in an effort to shift blame for ongoing violations to MSHA inspectors. Hissam said opening statements already indicate that could be the case.

"That's not that surprising, it's a common defense tactic," Hissam said. "If you were trying an [Occupational Safety and Health Administration] case, you would probably try to blame OSHA. Given this state, and this political environment, they will say 'blame the government, blame MSHA.'"

Prosecutors also likely went after the charges they chose because violating securities law is simply treated more harshly under the law than violating mine safety regulations.

"In my mind, that's a big weakness of the federal mine safety law," Oppegard said. "Even intentional conduct — say if a coal operator knows its ventilation system is inadequate and could result in an explosion, and does absolutely nothing to change it. … If the mine blows up — that's still a misdemeanor. Typically, it's hard to get prosecutors interested in misdemeanor cases."

A legislative effort to add potential felonies to certain mine safety violations was shot down in Congress just months after the explosion.

Blankenship faces five years for the charge of conspiring to violate mine safety laws. The remaining 25 years of the potential sentence stems from two counts of securities fraud.

Hissam said that while it can be difficult to link corporate statements to one individual, evidence including documents and phone recordings could make it easier to implicate Blankenship. He said the defense will likely try to claim Blankenship did not draft the statement or that it was a decision involving many individuals.

"In a general case, that's a pretty attractive defense," Hissam said. "I think the recordings here make it much more difficult for the defense because the government has recordings of Blankenship being personally involved in the earnings releases, earnings calls, press releases. There's a great quote from one of the recordings where he tells his guys to insert some material into an upcoming press release to Wall Street and he refers to a health and safety initiative as 'propaganda.'"

Patrick McGinley, a law professor with West Virginia University, noted that homicide or manslaughter charges, outside of narrowly defined exceptions in federal law, are charges handled by state prosecutors. For homicide, prosecutors would face the burden of proving intent while a manslaughter charge must show gross disregard for the life of another resulting in death.

"It could be very difficult, but not necessarily impossible, to apply state homicide law to the facts arising from the deaths of the Upper Big Branch miners," McGinley said. "Constraining a state homicide prosecution would be the lack of investigative resources and experts to identify evidence that would support a homicide charge — a constraint that federal prosecutors did not have."

Federal homicide cases, McGinley said, are typically limited to murder on federal property, homicide of a congressional official or president, homicides involving federal witnesses and other special circumstances. The Upper Big Branch situation, McGinley said, does not fit the narrow jurisdiction in which federal officials investigate manslaughter or homicide.

Prosecution's focus on explosion

While the cause of the explosion is not on trial, the indictment closely mirrors conclusions of investigations into the explosion. Prosecutors will be reaching back to 2008 to start proving first that Blankenship was not only aware of safety concerns at the mine, but also routinely issued orders allowing unsafe conditions to continue.

Not all evidence has been revealed, but one of the first incidents noted by the indictment is that Blankenship was informed that Upper Big Branch met criteria for potential pattern of violation, or PPOV status. The pattern of violations, or POV, system is used by MSHA to indicate a mine warrants extra regulatory scrutiny. The program has become more prominent and stringent since the explosion.

The incidents documented in the first couple years of the indictment period largely build on the notion that it was a culture of production over safety at Massey that led to conditions that would allow for the explosion. Derogatory statements from Blankenship such as "children could run these mines better than you all do" and commands to "run coal" and to "worry about ventilation" issues at a later time in handwritten communications aim to show Blankenship was clearly orchestrating Massey's mines down to the employee-level.

A memo recently made public, coupled with a recording discovered during his case compelling Alpha to pay his legal expenses, shows Blankenship was alerted to possible safety concerns at Massey.

"It's bad because like for example, if that was a fatal today or if we have one, it'd be a terrible document to be in discovery," the prosecutors quote Blankenship in a recent filing.

The document suggests a broad attitude within the Massey organization that management tolerated or even encouraged safety violations as long as operations "can get the footage."

In addition to establishing safety issues were known, the prosecution used violations closely related to the explosion in their indictment. As an example, MSHA citations related to ventilation, machine maintenance and coal dust accumulation — factors investigators point to as a cause of the explosion — are all cited in the indictment.

The prosecution noted that, during the indictment period, MSHA handed out 283 violations related to ventilation and 59 orders were issued at the mine that shut down all or part of the operation. A report from the United Mine Workers of America noted that Massey documented 937 hazardous conditions related to coal dust.

William Taylor, the attorney representing Blankenship in the trial, told the jury in opening statements to be wary of jumping to conclusions because it was "human nature" to seek someone to blame for the explosion. He warned them of a prosecution that is more about emotion than evidence and acknowledged Blankenship was a controversial figure.

"I'm asking you to keep in mind a question as you listen to the evidence," Taylor said. "Are we here because he is wealthy and because he demanded production at the coal mine and because he was the CEO of Massey, or are we here because the evidence proves beyond a reasonable doubt that he committed a crime?"

'If I try to do things right, I'll get fired'

Key to the prosecution's case will be that Blankenship created an environment in which miners were afraid to be safe. Orders to "run coal" and other things they suggest were intimidating to miners will be key to proving Massey disregarded safety laws. Because the securities fraud claim rests on Blankenship lying about Massey's safety focus, those charges too largely rest on proving Blankenship intimidated workers into working in unsafe conditions of which he was aware.

The memo recently mentioned in the trial includes several statements, including an alleged quote from a miner at Massey who said "if I try to do things right, I'll get fired." Oppegard said he was unsurprised to learn of such intimidation as he said many he works with have been afraid to report unsafe conditions at mines.

"Most mining communities are small communities. Word gets out you're a whistleblower or a quote-unquote troublemaker and it can be very difficult to get a job," Oppegard said. "You're lucky if you have one guy refuse to work. Most guys are going to work anyway because it's their only chance to feed their family."

Oppegard said Blankenship goes beyond most coal operators, however, in that it appears he was directly involved with intimidating miners over production figures.

"If Blankenship would threaten managers at the mine he's certainly not going to have any hesitation to get rid of a miner he thinks is a trouble maker," Oppegard said.

The defense, however asserts that Blankenship was adamant about safety and even paints him as an innovator when it comes to technology to keep miners safe.

"You will find that Mr. Blankenship had a view about people doing their jobs correctly in the mines which was that if people do their jobs, then you don't have citations," Taylor said in opening statements. "And if there is a problem with people doing their jobs, then the problem is with the people."

In previous filings, Blankenship's defense team has said that the government has glossed over numerous efforts related to mining safely. They add that there is the instance of Massey miner who was interviewed that said he "never experienced any major safety issues" and that Blankenship started a " Kill the Spider" program that sought to eliminate the root cause of violations.

'Historic indictment,' 'historic trial'

Oppegard said the case probably will not ripple through the coalfields and boardrooms as much as many are projecting or hoping. Because Blankenship took on such an unusual role in the day-to-day activities, most of the behavior he is charged with is not common throughout the coalfields and most public coal executives leave that level of decision-making to their subordinates.

"It is a historic indictment, it is a historic trial. There's no doubt about any of that," Oppegard said. "When it comes to what impact it will have on the coal industry, I honestly don't think that will have a major impact because Blankenship is such an atypical coal operator."

McGinley believes the prosecution will send the message to coal executives that they can be held liable for the health and lives of coal miners.

“ You will find that Mr. Blankenship had a view about people doing their jobs correctly in the mines which was that if people do their jobs, then you don't have citations. And if there is a problem with people doing their jobs, then the problem is with the people. ”

 William Taylor, attorney representing Don Blankenship

"That message is a primary goal of the criminal law — deterrence of similar future unlawful conduct, thus reducing exposure of miners to injuries and death resulting from failure to adhere with basic mine safety rules. The same holds true for executives in other industries," McGinley said. "When crimes are not prosecuted, the failure to enforce the law encourages rather than deters criminal conduct. However, the recent decision by the United States Department of Justice to prioritize federal prosecution of corporate executives, if such prosecutions actually occur has the potential to provide significant deterrence of criminal activity by corporate executives."

To be an effective deterrent, McGinley said, there will need to be more cases like the one going after Blankenship.

"The Blankenship prosecution alone will not provide a lasting deterrent; going forward prosecutors must continue to prosecute similar crimes of corporate managers if there is evidence to support criminal charges," he said. "The deterrent effect of a one-time prosecution won't change anything over the long run."

McGinley said these actions resulted in a "normalization of deviance" — a term used in the independent investigation appointed by the West Virginia governor, of which he was a part — at Massey mines. He blamed a "political and regulatory culture that combined to strongly discourage strict and vigorous enforcement of mine safety rules" for Massey's corporate culture to prevail for years."

"I think the prosecution of Mr. Blankenship could be an important first step in making the nation's coal mines safer, whether or not he is convicted by a jury," McGinley said. "However, a political culture in which it was acceptable for a century to allow coal executives to escape personal responsibility when their criminal actions contributed to coal miner deaths and injuries won't change easily. Needed change can occur if political and coal industry leaders reject Mr. Blankenship's long-expressed views that coal mine safety regulation is part of a 'war on coal.'"

The case is United States of America v. Don Blankenship (5:14-cr-00244) in the U.S. District Court for the Southern District of West Virginia.