Money, Safety Violations Focus of Opening Arguments in Blankenship Trial

Money. That’s what both sides arguing the case of former Massey Energy CEO Don Blankenship say his trial boils down to.

For the prosecution, Blankenship employed a top-down leadership style that protected his own financial interests – both his $12 million annual salary and his substantial stock holdings in Massey.

For the defense, it’s that same money that made him a target.

“Ask yourself is [Mr. Blankenship] on trial here for what he did or who he is?” lead defense attorney Bill Taylor asked of the jurors in his opening statement Wednesday. “It’s no secret Mr. Blankenship wouldn’t win a popularity contest in the state of West Virginia.”

Assistant U.S. Attorney Steven Ruby presented the government’s opening arguments in the case, saying his team will attempt to prove Blankenship was a micromanager with a special eye on the Upper Big Branch mine, receiving production reports every half-hour and often threatening mine managers with their jobs when tonnage numbers dropped.

Read the entire court transcript of opening arguments.

The government will build its case around hand-written notes, memos and Blankenship’s own phone recordings. Those, Ruby said, in addition to the witnesses the government will call, will show Blankenship’s top priorities were production and profit, leaving safety low on the list.

“In a February 8, 2008, memo,” Ruby said, “Blankenship wrote about Upper Big Branch, ‘We will worry about ventilation or other issues at the appropriate time. Now is not the time.”

The memo came as safety violations issued by the federal Mine Safety and Health Administration climbed at the mine, making Upper Big Branch one of the least safe mines for its size in the country.

The government will also present evidence, according to Ruby, to prove Blankenship lost a substantial amount of money on his Massey stocks after the Upper Big Branch mine disaster, which led him to approve written statements to both the Securities and Exchange Commission and investors saying Massey did not condone unsafe practices in the mines. Ruby called those statements falsifications.

Taylor, however, maintained Blankenship did not write nor say nor distribute the statements, which were also reviewed by other executives and attorneys within the Massey organization.

Credit Jeff Pierson

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That point was one of six the prosecution objected to during Taylor’s opening argument Wednesday, an occurrence Charleston attorney and former Assistant U.S. Attorney for the Southern District of West Virginia Mike Hissam called rare.

“Legal objections during opening statements in criminal trials are uncommon,” he said, “but it’s even rarer for a judge to call the lawyers to the bench to discuss those objections during opening statements like Judge Berger did Wednesday.”

Many of Federal District Judge Irene Berger’s rulings on the objections resulted in Taylor rerouting his argument to avoid evidence that will not be permitted in the case, including Blankenship’s claim that his indictment was politically motivated. Berger ruled on pre-trial motions involving permissible evidence Tuesday evening.

Still, Taylor continued to refute the government’s standings, saying Blankenship implemented company-wide safety programs that began cutting the number of violations issued at the Upper Big Branch and other mines in late 2009, that Blankenship had no knowledge of a scheme at the site that warned miners underground of an inspector’s presence, and that none of the safety citations at the mine could be proven to be “willful,” or deliberate like the government will argue.

Four family members of Upper Big Branch victims looked on as Taylor made his case, often shaking their heads in disagreement over the emphasis Taylor says Blankenship made on safety at the mine. Blankenship appeared calm during the three-hour process, occasionally taking notes.

After opening statements, the government called its first witness Wednesday afternoon. Tracey Stumbo spent 41 years in the mining industry in Kentucky as a miner, foreman, and later inspector and accident investigator for the Kentucky Mine Safety Department.

Stumbo began giving jurors a detailed explanation of the coal mining process and will continue his testimony Thursday. 

Blankenship is charged with conspiring to willfully violate federal mine safety laws and lying to securities officials and investors about Massey’s safety record after the Upper Big Branch mine explosion in 2010. The blast killed 29 miners.