Blankenship Conviction Is Affirmed ; 4th Circuit Upholds Berger Rulings

By Ward, Ken | Charleston Gazette Mail, January 20, 2017 | Go to article overview

Blankenship Conviction Is Affirmed ; 4th Circuit Upholds Berger Rulings


Ward, Ken, Charleston Gazette Mail


Saying that the criminal provisions of the nation's mine safety laws are intended to ensure that miner health and safety aren't sacrificed for coal production and profits, a federal appeals court on Thursday affirmed the conviction of former Massey Energy Co. CEO Don Blankenship. The 4th U.S. Circuit Court of Appeals upheld a series of trial rulings by U.S. District Judge Irene Berger and said the ability of prosecutors to go after mining company executives whose companies repeatedly ignore longstanding safety requirements is a key part of federal protections for mine workers.

Blankenship is in federal prison in California, serving a one- year sentence, the maximum penalty for a crime that federal law considers a misdemeanor. He was convicted in December 2015 of conspiring to violate federal mine safety standards at Massey's Upper Big Branch Mine, where 29 workers died in an April 2010 explosion.

In a 34-page decision, a three-judge panel of the 4th Circuit soundly rejected defense arguments that the indictment against Blankenship didn't properly outline the mine safety violations at issue, that Berger wrongly denied the defense the chance for a second cross examination of a major government witness and that the trial judge incorrectly instructed the jury about the prosecution's burden of proof.

"After careful review, we conclude the district court committed no reversible error, wrote Judge James Wynn. "Accordingly, we affirm.

The 4th Circuit also flatly turned down Blankenship's appeal argument that Berger was wrong to instruct the jury that Blankenship's "reckless disregard of federal mine safety and health standards amounted to criminal willfulness needed for a conviction.

Wynn explained in the opinion that Congress, in passing federal mine safety laws in 1969 and 1977 had intended to impose enhanced penalties - criminal liability for individual mine operators and company executives - precisely because mine operators could still "find it cheaper to pay minimal civil penalties than to make the capital investments necessary to adequately abate unsafe or unhealthy conditions, and there is still no means by which the government can bring habitual and chronic violators of the law into compliance.

"Accordingly, Congress saw criminal penalties as a mechanism to punish habitual' and chronic' violators that choose to pay fines rather than remedy safety violations, Wynn wrote. "Put differently, a long history of repeated failures, warnings and explanations of the significance of the failures, combined with knowledge of the legal obligations, readily amounts to willfulness.'

While Blankenship was not specifically charged with causing the explosion that killed the miners at Upper Big Branch, the 4th Circuit ruling noted that, in 2009, the U.S. Mine Safety and Health Administration identified 549 violations at the Raleigh County mine and, in the 15 months leading to the April 2010 disaster, Upper Big Branch had received the third-most serious safety violations of any mine in the United States.

"Many of these violations related to improper ventilation and accumulation of combustible materials - problems that were key contributing factors to the accident, Wynn wrote. …

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