Defense Wants 'Another Crack' at Blanchard, Requests to Re-Cross

Oct 30, 2015

The prosecution wrapped their redirect examination of former Performance Coal President and Upper Big Branch mine operator Chris Blanchard late Friday afternoon, but the unconventional witness may not be done on the stand just yet. Defense attorneys Friday moved to “take another crack” at Blanchard.

Don Blankenship, right, leaves the Charleston federal courthouse with his lead attorney Bill Taylor, left.
Credit Ashton Marra / West Virginia Public Broadcasting

Blanchard has been on the stand since Oct. 22, testifying in the trial of former Massey Energy CEO Don Blankenship. Blankenship is charged with lying to investors and securities officials about Massey’s safety record and conspiring to violate federal mine safety laws.

Blanchard, although immune from being charged in the case because of an agreement with the U.S. Attorney’s Office for his testimony, is named in the federal indictment as one of Blankenship’s co-conspirators.

Blankenship’s lead attorney, Bill Taylor, requested the right to again cross examine Blanchard on a number of issues, the first of which was a host of new evidence introduced during the prosecution’s redirect examination this week.

Taylor said Friday the government introduced more than 40 new documents under the witness’s testimony that the defense had not had an opportunity to discuss with Blanchard. Taylor’s other reasons for a re-cross include:

  • The government’s impeachment of the witness on redirect using his previous grand jury testimony
  • Testimony Blanchard gave about the process of giving advanced notice of safety inspections at his mines
  • The disciplinary action Blanchard took against a former Upper Big Branch employee, Brian Collins
  • Testimony about Blankenship’s direction to create smaller coal pillars in the mine, resulting in more coal produced, but weaker roof supports
  • The re-calculation of the rate of accidents that resulted in injuries in both the Upper Big Branch and Massey mines after the 2010 Upper Big Branch mine explosion, resulting in an increase of those rates

Assistant U.S. Attorney Steve Ruby responded to the request by saying the defense is free to call Blanchard as their own witness if they wish to have him testify further, but said all of the areas of argument listed by Taylor came as a response to the witness’s cross examination.

“It’s often the case that after redirect, the party that conducted the cross examination will be dissatisfied and want another crack at the witness,” Ruby said in court Friday, “but if the redirect deals with what’s been brought in the cross, it does not require a re-cross examination.”

On cross examination, Blanchard testified he had not committed any crimes while working as the president of Performance Coal and did not have an unwritten agreement nor understanding with Blankenship to violate safety laws. That testimony directly contradicted Blanchard’s previous testimony, both in his direct examination and in previously sworn testimony given before a grand jury.

Because of those statements, Taylor claimed the government had withheld evidence from the defense, evidence that consisted of statements of innocence Blanchard made “over the course of several years” to the government before the trial.

Ruby argued while the government had previous conversations with Blanchard’s attorneys, those conversations started only shortly before Blankenship was indicted in November 2014, and the government did not know Blanchard would testify he was innocent.

“Much of what was said on cross came as a surprise to the United States, but apparently not to the defense,” Ruby told Federal District Judge Irene Berger. “We did not understand the witness was going to testify he was not part of a conspiracy.”

Berger dismissed the courtroom after 5 p.m. Friday, telling attorneys she would “notify you via email Monday or before” about her decision on a re-cross examination. Berger has not allowed defense attorneys to question any other government witness a second time so far in the case.

The trial will resume Tuesday morning.