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www.wvgazettemail.com Former Massey Energy Co. chief executive Don Blankenship, once one of the most powerful men in the region’s coal industry, was convicted Thursday by a federal jury of conspiring to violate mine safety and health standards at Massey’s Upper Big Branch Mine, where 29 miners died in an April 2010 explosion.The federal jury found Blankenship not guilty of two other charges, securities fraud and making false statements, after a landmark, two-month trial that revisited the worst U.S. coal-mining disaster in a generation and closely examined the longstanding argument from Blankenship’s critics that he put coal production and corporate profits ahead of the safety of his company’s miners.Blankenship faces a maximum of one year in prison — compared to the 30-year maximum sentence had he been convicted on all three charges — but he also could be sentenced to pay fines of up to twice the financial gain resulting from the mine-safety conspiracy.“The jury’s verdict sends a clear and powerful message,” U.S. Attorney Booth Goodwin said. “It doesn’t matter how rich you are, or how powerful you are — if you gamble with the safety of the people who work for you, you will be held accountable.”Blankenship, who once wrote on his blog that, “If they put me behind bars . . . it will be political,” declined comment as he left the courtroom. His legal team vowed a vigorous appeal.“We’re pleased that the jury found Mr. Blankenship not guilty on all the felonies in this indictment,” said Bill Taylor, the lead attorney on a large and expensive defense team that included lawyers from the firms Zuckerman Spaeder, in Washington, D.C., and the Morgantown and Charleston offices of Spilman Thomas & Battle. “We regret the fact that they made the mistake of convicting him on a misdemeanor, but I’m confident that will be reversed on appeal.”U.S. District Judge Irene Berger read the jury’s decision aloud to a packed courtroom at about noon Thursday, after warning those in the room that she would not tolerate “outbursts, with respect to the verdict.”Jurors had deliberated for about 50 hours over 10 days since the judge gave them the case late on the afternoon of Nov. 17. They heard 24 days of testimony that included 27 witnesses and more than 500 exhibits. Potential jurors originally had reported to court for jury selection on Oct. 1.The verdict came after jurors had twice reported to Berger — once on Nov. 19 and again on Tuesday — that they could not agree to a unanimous verdict. Over defense objections and repeated demands for a mistrial because of the deadlock, Berger encouraged jurors to continue their work, issuing an instruction that they needed to “re-examine” their positions and be willing to change their minds if convinced they should do so. Late Thursday morning, jurors appeared to have sent the judge two notes, one at 11:25 a.m. and another at 11:45 a.m. After the second note, attorneys from both sides hurried to the courtroom and court staff scrambled to set up a video feed to an overflow room. As word spread that a verdict announcement was coming, family members of the Upper Big Branch miners — seated in the front row, as they had been throughout the trial — began to sob, and kept crying until after the verdict was read.Berger told the crowd that she had received a note from the jury that read, “Your honor, we have a verdict.” After reading from the verdict form, and while Blankenship sat quietly at the defense table with his lawyers — the judge did not ask him to stand — Berger polled the eight women and four men on the jury. She asked them each, in turn, if they agreed with the verdict. Jurors replied, “Yes, your honor,” “It is, your honor,” and “Yes, ma’am.”After conferring with Goodwin and other prosecutors, Assistant U.S. Attorney Steve Ruby asked Berger to have Blankenship taken into custody or to, at least, increase his existing $5 million cash bail by another $10 million if the CEO wanted to remain free pending sentencing.Ruby said Blankenship has “significant international ties, a bank account in a foreign country” and, even though he already had surrendered his passport, “has sufficient means that there is, nonetheless, a risk of flight.” Taylor responded that Blankenship had appeared voluntarily at every phase of the case, had a “perfect” record of attendance and was not a risk of flight.Berger denied Ruby’s request, saying that Blankenship “has complied with all of the terms and conditions” of his initial bail release.“I realize, as has been argued here, that the circumstances have changed, in that he now stands convicted by a jury verdict, which was not the case previously,” the judge said, “but given the conduct up until this time, I’m going to deny the motion to modify the conditions of bond.”The judge set sentencing for 10 a.m. March 23, but then agreed to reconsider that date after Taylor told her, “I happen to know I will be out of the country on that date.”For video of Taylor’s reaction to the verdict, click here.Live updates and background hereBlankenship, 65, had faced three felony counts in an indictment that resulted from a nearly five-year federal probe following the April 5, 2010, explosion at Upper Big Branch, an underground mine in Raleigh County that produced a valuable form of steel-making coal that was key to Massey’s financial success. While Blankenship was not charged with causing the disaster, the accusations focused on rampant violations of basic safety standards — mine ventilation, roof support and dust control — known for decades to be effective in preventing mine explosions.The charges put on trial a man who worked his way from humble beginnings in Mingo County to a powerful player in West Virginia’s business and political world — a coal CEO who was loved by some for his outspoken conservative stances but vilified by others for an anti-union business model that critics said illustrated the worst aspects of the coal-mining industry.During the trial, more than a dozen former Upper Big Branch miners testified about working day after day with inadequate fresh air, high levels of dust, and other problems, and still being ordered to keep “running coal.”Prosecutors introduced evidence that Massey — and the Upper Big Branch Mine in particular — racked up far more serious safety and health violations than other mines operated by other major coal producers. Prosecutors alleged that these violations could easily have been prevented, but Blankenship refused to hire additional miners to do things like spread adequate amounts of crushed limestone, or “rock dust,” to dilute explosive coal dust generated by mining. The government also noted specific examples where Blankenship refused budget requests for a new ventilation shaft and rock-dusting machine for the Upper Big Branch Mine.“There will certainly be an appeal, but no matter what happens now, the evidence in this case revealed the repugnant arrogance that underlay Massey management’s claims that it always strove to comply with mine safety laws at all times,” said longtime West Virginia University law professor Pat McGinley, who served on an independent team that investigated the Upper Big Branch Mine disaster. “A trial is a search for the truth, and coalfield communities now know the truth — profits, not miners’ lives, was Massey’s overarching goal.”Lead defense lawyer Bill Taylor had tried to convince jurors that the government had not proven its case to the “reasonable doubt” standard required in criminal cases, even concerning the mine safety conspiracy.“There’s no proof that Don Blankenship agreed with anyone else, with others, unnamed so far, to commit willful violations of MSHA regulations at the Upper Big Branch Mine,” Taylor said during his closing.Goodwin responded that the conspiracy charge didn’t require an overt or spoken agreement by Blankenship to take part in the scheme. He compared the concept to a “drug kingpin who doesn’t need to know about every drug sale that is made by one of his street-corner drug dealers.”“The defendant doesn’t need to know the details about every violation of mine safety laws in order to be guilty of conspiracy,” Goodwin said. “He was the kingpin.”Defense lawyers tried to focus jurors on what they said were Blankenship’s safety innovations — reflective clothing and new safety helmets — that prosecutors dismissed as “whiz-bang so-called innovations.” The defense touted a “hazard elimination program” they said Blankenship came up with to push for fewer safety violations. Prosecutors said the program was little more than “propaganda” and won a legal motion to keep out of evidence a lengthy video of a Massey meeting held to launch the program.The defense also repeatedly tried to convince jurors that ventilation violations at Upper Big Branch were largely caused by the federal Mine Safety and Health Administration forcing the mine, over Massey’s objections, to adopt a different plan for pumping fresh air through the mine. Berger initially granted a government motion to keep such evidence out of the trial but repeatedly allowed the defense to get into the matter through cross-examination of government witnesses. And during one short cross-examination, defense lawyer Eric Delinsky managed to get the government’s securities expert to say the name “Obama” more than three-dozen times to a jury drawn from a state where the president is very unpopular.On Nov. 16, after the government completed its case, defense lawyers made the surprise announcement that, not only would Blankenship not testify on his own behalf, but also the defense would rest without calling any witnesses of its own.In his closing argument the next day, Taylor made it clear the defense thought it had done enough by scoring points toward reasonable doubt with its cross-examination of prosecution witnesses.Taylor especially focused on the testimony of Chris Blanchard, who, as president of Performance Coal Co., had run the Upper Big Branch Mine for Massey. Blanchard testified under an immunity agreement with Goodwin’s office and was a key witness before the grand jury that indicted Blankenship. However, in a marathon cross-examination that lasted more than a week, Taylor got Blanchard to insist that he did not conspire with Blankenship to violate safety laws or hinder MSHA inspections. Prosecutors tried to minimize any damage by referring in their closing arguments to Blanchard as one of the “yes men” who did whatever Blankenship instructed them to do.Defense lawyers tried just as hard — but for not nearly as long — to turn to their advantage another key government witness, former Massey ventilation expert Bill Ross. Ross testified on cross-examination that he thought Blankenship wanted to reduce safety violations. He told jurors how the CEO had invited him to lunch to talk about safety and asked him to write a safety speech. Ruby, though, said it was the documents from Ross — more than the witness himself — that were a key to the prosecution case. The Ross documents, Ruby reminded jurors, showed that, even after he lunched with Blankenship, Ross didn’t see the sorts of safety improvements he felt were needed.At the end of trial, in a chilling rebuttal to Taylor’s closing argument, Ruby asked jurors to picture themselves as one of the miners they heard testify about conditions at Upper Big Branch.“Picture walking through a mine and seeing, everywhere in the tunnels around you, coal dust, knowing it’s explosive, knowing there’s an easy way to make it safe by putting down pure white rock dust on top of it, but the people in charge won’t take the time to do it,” Ruby said. “Fast forward a few years to this trial, and picture having the defense try to blame the coal miners for the safety violations that happened at UBB — the coal miners who went to work every day and kept their heads down and did their best to make a living for their families when they were all but begging, in fact, just to be given the chance to do what was right, to follow the laws that were designed to keep them safe on the job.”On the false-statement and securities fraud charges, prosecutors alleged that Blankenship orchestrated a Massey statement that falsely said the company did not condone safety violations and strove to comply with all safety rules at all times. They alleged that the statement was issued just days after the Upper Big Branch Mine disaster to try to stop Massey stock prices — and Blankenship’s personal wealth — from plummeting amid news reports of Massey’s troubled safety record.“When tragedy happened and he found the eyes of the world on him and his safety practices,” Ruby said, “he lied about it, to cover it up and keep the money machine going a little longer.”On Thursday, Taylor said it was clear that jurors didn’t buy that part of the government’s case.“They obviously didn’t, and we didn’t either,” Taylor told reporters, as defense lawyers escorted Blankenship down the courthouse steps. “There’s never been a charge of securities fraud based on a sort of subjective language like that. There was a quality of ‘make it up as you go along’ in this case.”The securities fraud charge had carried a maximum prison sentence of 20 years, and the false-statement charge a maximum sentence of five years.Count One — the conspiracy charge — would normally be a felony, punishable with up to five years in prison. In Blankenship’s case, though, prosecutors had charged a two-object conspiracy. They alleged that the conspiracy’s goals were to violate mine safety standards and to defraud MSHA by thwarting government inspections. Defrauding MSHA is a felony but, under federal law, violating a mine safety standard is just a misdemeanor. Jurors checked off only one of the two objects of the conspiracy — the one for violating mine safety standards — in a move that bumped the Count One conviction down to a misdemeanor and the maximum sentence down to one year in prison. Generally, violating mine safety standards also carries a maximum fine of $250,000, but prosecutors said they also could seek to force Blankenship to pay a fine equal to twice the financial gain or loss from the conspiracy — a figure that no one has yet put a number on.“You can’t always — in fact, you often can’t — measure justice by the length of a prison sentence or by the amount of time that a defendant does,” Ruby said Thursday. “A critical part of doing justice, particularly in a case like this, is accountability. It is unprecedented, as far as we know, for any CEO of any large corporation to be held accountable, to face a jury of his peers and have that jury say he is guilty of violating workplace safety laws, violating mine safety laws. The fact that we’ve been able to obtain that kind of accountability today, obtain that kind of justice today, it is an enormous victory.”Staff writers Joel Ebert and David Gutman contributed to this report. Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.
www.wvgazettemail.com Little was known about the 12-member jury that spent more than 50 hours deliberating over 10 days, but hints began to emerge Thursday evening about how its members decided former Massey Energy Co. CEO Don Blankenship’s fate. One juror, Bill Rose, said Thursday evening that the main reason deliberations took so long was because of the plethora of material in the case. Jurors sent a note to U.S. District Judge Irene Berger on Nov. 19, early in deliberations, indicating that they were deadlocked. Rose said jurors took an early poll before sending that note.“I don’t think any of us had ever been on a jury,” Rose said. “We just threw out our opinions and were kind of deadlocked at that.”Rose said that once Berger told jurors to continue deliberating, “we took that to heart.”As the deliberations progressed, Rose said, as many as eight or nine jurors — including him — thought Blankenship was guilty “pretty much on all charges,” while three or four jurors thought he was not guilty.The main reason jurors thought Blankenship was not guilty was over the “reasonable doubt” language, said Rose, the first juror to publicly discuss the trial. He said he believed all the charges “kinda tied together,” and that led to his belief that Blankenship was guilty.Earlier Thursday, as the verdict was read inside Berger’s courtroom, court security officers gathered jurors’ cellphones near the entrance to the Robert C. Byrd U.S. Courthouse. About 30 minutes after returning a verdict finding Blankenship guilty of conspiring to willfully violate mine safety standards, more than half of the jury exited the courthouse through a back door.The jurors quickly made their way across Quarrier Street, into the Charleston Town Center mall’s parking garage. Most kept their heads down and didn’t want to talk about the decision they had just made, which also found Blankenship not guilty of securities fraud and making false statements in the wake of the April 2010 Upper Big Branch Mine explosion that killed 29 men. One woman who wouldn’t identify herself said only that she was “glad it’s over” as she walked to her car. The jurors had been at the courthouse nearly every day since jury selection began Oct. 1. They were given weekends off and a three-day break for Thanksgiving. “I think we did the best we could with all the material we had,” said a gray-haired man wearing a Teamsters jacket who didn’t want to identify himself. “There was lots of material.”Since Oct. 7, jurors heard testimony from 27 witnesses and viewed more than 500 exhibits over 24 days in the landmark trial.After saying goodbye to jury forewoman Pam Carte, the man said the jurors had become friends.“That’s bound to happen, after spending as much time together as we did,” he said. He wouldn’t say what might have led the judge to instruct jurors before their deliberations began again on Monday to be “respectful” of each other. A woman in the elevator didn’t want to comment or identify herself. She went for lunch at the mall after the verdict.Carte also went to the mall’s food court after being released from the case.“Not right now,” she said when asked questions about the trial, adding that she was exhausted. “I just need a break from it all.”Two male jurors — including Rose, who had been sick on Wednesday and caused Berger to send the jury home early — walked into the mall together after the verdict. They also said they didn’t want to give their names or comment about the trial, but Rose talked when contacted by phone Thursday evening.Little is known about the jury because jury selection took place in private, without the presence of the news media and the public, who were relegated to a separate courtroom, where jury selection was broadcast via a video feed. Berger denied a request from the Gazette-Mail and West Virginia Public Broadcasting that the jury selection process be open to the public and the news media. Although the Gazette-Mail sent letters to Berger seeking access to transcripts of the voir dire process, the judge did not respond to the newspaper’s requests.Carte and Rose are the only jurors whose names were made public by Berger during the trial. According to a transcript of the first day of jury selection that was temporarily available on a public computer terminal, Carte, a 54-year-old Elkview resident, disclosed the fact that she went to high school with Assistant U.S. Attorney Greg McVey. Rose was called to Berger’s bench on Nov. 6, for reasons that were not publicly disclosed. He also was identified Wednesday, after jurors sent a note saying Rose was too ill to continue with deliberations. In the aforementioned transcript, Rose said he had not heard anything about Blankenship, other than the fact that he was the CEO of Massey. When asked if he remembered details about the Upper Big Branch Mine disaster, Rose said, “Just the beginning of what happened, like when it occurred.”According to his Facebook page, Rose posted two messages on April 6, 2010, saying, “Pray for miners,” in each one.Rose’s profile indicates that he studied civil engineering at the West Virginia University Institute of Technology, lives in Hico and is originally from Smyrna, Delaware. Last month, the Associated Press filed a motion to make public the names and addresses of the jurors. Berger has yet to respond to the filing.At several points during the deliberation process, Berger praised the work of the jurors. “This jury has worked,” she said Tuesday. “They’ve done what we ask of jurors over the course of their deliberations.”Reach Joel Ebert at joel.ebert@wvgazettemail.com, 304-348-4843 or follow @joelebert29 on Twitter. Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.
www.wvgazettemail.com A split verdict — one that brings a maximum of just one year in prison when 30 years loomed, but one billed as the first-ever conviction of a major CEO for workplace safety violations — brought mixed emotions from family members who lost loved ones in the Upper Big Branch Mine disaster.“I wanted Don Blankenship to be convicted here, so, Don Blankenship, you now wear the cloak of criminal shame,” said Dr. Judy Jones Peterson, who lost her brother, Dean Jones, in the 2010 mine explosion. “I didn’t put any weight on the charges. I just wanted someone to step forward and say he is guilty. He is guilty.”Blankenship was found guilty of a misdemeanor count of conspiracy to violate mine safety standards while he was CEO of Massey Energy Co. in the years before the disaster.For Shirley Whitt, who lost her brother, Boone Payne, in the explosion, it wasn’t enough.“Absolutely not,” she said. “Do you think that a misdemeanor is enough for what this man did? I mean, how could you?”Whitt and Peterson have been at the federal courthouse in Charleston every day of the more than two-month trial to watch the proceedings. “He was a great man,” Whitt said of her brother. “A father, a grandfather — we did this for him.”And, as much as the verdict wasn’t satisfying, Whitt found some measure of solace in it.“When we came in here, he could have walked away, not guilty of all three charges,” she said. “So, just for him to be brought to this and know that he wasn’t in control, to me that’s worth it. Just to see him sit there every day and have to listen to the kind of person he was, that kind of gave me . . . it felt like that was speaking for the 29 miners that passed away.”Gary Quarles, whose son, Gary Wayne Quarles, died at UBB, also attended nearly every day of the trial.“I’m very well-pleased,” Quarles said. “I didn’t think he was going to get anything; that’s what I was worried about.” Quarles said he had talked to prosecutors long ago and they had asked him what he wanted out of a trial.“I said I want ‘something,’ ” Quarles said. “So I got my something.” Blankenship faces up to one year in prison when he is sentenced next spring. He was released on bail while he awaits sentencing.Bobbie Elswick, whose husband, Michael, died in the explosion, hopes he gets the maximum.“It doesn’t bring my husband back, but I wonder how his wife and kids are going to feel when he has to go away,” she said.Elswick said the single conviction isn’t enough and is dubious that Blankenship will spend time behind bars.“He’ll probably be living the high life again with his family and having a good old time while we’re dreading Christmas because our loved ones aren’t with us,” Elswick said.After the verdict, U.S. Attorney Booth Goodwin said he knew of no other cases where the chief executive officer of a major company was convicted of a workplace safety crime.That sentiment stuck with Peterson, who called the case “precedent-setting.”“This says to all the CEOs, owners and operators out there, ‘You’re on notice. You are responsible for the health and safety of your members,’ ” Peterson said. “ ‘Understand that your success is on their shoulders; understand that they are your greatest asset, your greatest resource.’ ”Sen. Joe Manchin, D-W.Va., who was governor at the time of the explosion and has publicly sparred with Blankenship, said the verdict signaled that West Virginia will not allow profits to be prioritized over safety.“I am pleased the jury’s decision has brought some measure of justice to one of the most tragic mining disasters in recent history,” Manchin, a Democrat, said in a prepared statement. “I hope that today brings some closure and peace to the families of the miners.”State Democratic Party Chairwoman Belinda Biafore said, “Never should it be OK for families to feel the loss that these families have felt because of an employer’s selfishness.”Democratic Gov. Earl Ray Tomblin declined to comment on the verdict.Blankenship was, for years, a massive donor to West Virginia Republicans and spent millions of dollars to get Republicans elected.Ashley Berrang, a spokeswoman for Sen. Shelley Moore Capito, R-W.Va., said Capito respects the jury’s decision and added, “Nothing can make up for the heartache felt by the families of the 29 hard-working miners who lost their lives on that tragic day.”West Virginia’s three Republican congressmen would not comment on the verdict, and neither would the state’s Republican Party leadership.Blankenship was not on trial for causing the explosion, but the disaster loomed, ever present, over the proceedings.Peterson said that part of her satisfaction is her belief that the charges Blankenship faced were proxies for larger, unstated crimes.“These charges did not reflect the real weight of what happened here, at this UBB disaster,” she said. “The government had no teeth to go after him for what he really did, and so they went after him for these small charges. But this isn’t what happened; 29 people are gone. Countless numbers of lives are changed. My life will never be the same.” Labor unions, which have feuded with Blankenship for decades, applauded the verdict.Cecil Roberts, president of the United Mine Workers of America, also tied the conviction to the mine disaster, saying it would not bring back the 29 miners — or the 23 others who died at Massey operations while Blankenship ran the company.“The truth that was common knowledge in the coalfields — that Don Blankenship cared little for the health and safety of miners working for his company and even less for the laws enforcing their rights — has finally been proven in court,” Roberts said, in a prepared statement. “A message has gone out today to every coal producer in America who is willing to skirt mine safety and health laws: You do so at your own personal risk.”Kenny Perdue, president of the West Virginia AFL-CIO, said the conviction “sends a powerful message to corporate CEOs that they will be held accountable for their actions.”Whitt said she did not see Blankenship as he left the courtroom, nor did she want to. She said she didn’t think she could handle it if she saw him smile.“I’m just drained. It’s been a long two-and-a-half months and a long five-and-a-half years,” she said. “I think that’s all I have.”Reach David Gutman at david.gutman@wvgazettemail.com, 304-348-5119 or follow @davidlgutman on Twitter.

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