When jurors in the Don Blankenship trial went to a small conference room on Nov. 17 to begin their deliberations, they took a lot of stuff with them: More than 500 exhibits, legal instructions from U.S. District Judge Irene Berger, even coal-cutting bits from the longwall machine at Massey Energy’s Upper Big Branch Mine.
But the jury wasn’t given a copy of the federal mine safety law to take with them. And through a two-month trial with 27 witnesses, nobody explained to jurors that willfully violating the federal standards meant to protect the health and safety of the nation’s coal miners is a misdemeanor, classified by Congress as a minor crime.
So unless jurors ignored Berger’s instructions not to investigate the case on their own, they had no way of knowing that if they found Blankenship guilty of conspiracy — but checked one box and not another on their verdict form — the most time the former Massey CEO could ever spend in prison was one year.
Pat McGinley, a West Virginia University law professor who has followed the case, said that’s the way it is supposed to work in the U.S. criminal justice system. Congress writes the laws that set potential penalties for crimes. Juries decide who is guilty and innocent. And then judges pronounce sentences.
“The role of a jury is to decide the facts after sorting out the truth from all of the evidence presented at trial,” McGinley said. “It is the job of the court, not the jury, to decide on the punishment to impose on the guilty. If the jury were informed of the range of punishments that apply to each charge, there would be a real danger that the jury would usurp the role of the court.”
The Blankenship verdict, though, has restarted a push from mine safety advocates who say it’s time for federal lawmakers to amend the mine safety statute to toughen the potential penalties for coal operators who put the health and safety of miners at risk.
“When the consequences of the violations are so potentially profound, and so potentially deadly, it goes without saying that there ought to be a stiff penalty,” said Davitt McAteer, a longtime mine safety advocate who ran the U.S. Mine Safety and Health Administration during the Clinton administration.
During a press conference after the verdict, U.S. Attorney Booth Goodwin emphasized that in his view, “the most serious conduct” that Blankenship was accused of “was willfully violating mine safety laws and placing miners at risk.” Assistant U.S. Attorney Steve Ruby, the lead prosecutor in the case, likewise called the allegation of conspiring to violate mine safety and health standards “the heart of the criminal conduct” at Massey during Blankenship’s time as CEO.
But under the law, violating those safety standards — the rules that mandate proper ventilation, require adequate rock-dusting and limit exposure to dust that causes black lung — or even conspiring to violate them is a misdemeanor. The maximum penalty is one year in prison and a $250,000 fine.
The conspiracy charge against Blankenship could have been a felony, if jurors had checked off on the verdict form to signify that they also believed Blankenship had conspired to defraud MSHA by thwarting agency inspections and faking coal dust monitoring. That would have meant a maximum sentence of five years in prison.
Blankenship also faced, but was found not guilty of, two other felony counts that alleged he lied to securities regulators and committed securities fraud in saying Massey did not “condone” mine safety violations. Together, those two counts could have put Blankenship in prison for up to 25 years.
Blankenship’s defense team is already citing the fact that he was cleared of the felonies, and found guilty only of one misdemeanor, as a reason he should be free to travel to Las Vegas for Christmas and have his bond cut from $5 million to $250,000 pending his sentencing in early April.
But the day after the verdict, the ranking Democrat on the U.S. House Committee on Education and the Workforce said the Blankenship case shows the need for passage of the Robert C. Byrd Mine Safety Protection Act, which includes language making willful violations of federal mine safety and health standards felonies in certain situations.
“A misdemeanor sanction is a woefully insufficient deterrent for criminal conduct for an operator who repeatedly puts production ahead of safety requirements,” said Rep. Bobby Scott, D-Va.
The bill would make it a felony to willfully violate mine safety and health standards when doing so “recklessly exposes a miner to significant risk of serious injury, serious illness or death.” The maximum sentence would be five years in prison and a $1 million fine.
None of West Virginia’s three Republican House members are co-sponsors of Scott’s bill.
In the Senate, U.S. Sen. Joe Manchin, D-W.Va., is a co-sponsor of identical legislation. In a press release issued the day of the Blankenship verdict, Manchin’s office did not mention the bill or anything about increasing penalties for mine safety crimes.
Last week, Manchin spokesman Jonathan Kott said that the senator “has held events all across the state” to highlight the legislation and has “spoken with constituents, industry leaders, labor groups and his colleagues about the entire bill for the past 3 years.” Manchin’s office did not provide any specific examples.
Kott said Manchin “was very disappointed with the penalty handed down for the crime” in the Blankenship case and that, “hopefully this brings some much needed attention to the Robert C. Byrd Mine Safety Protection Act.”
Sen. Shelley Moore Capito, R-W.Va., is not a co-sponsor of the Senate version of the bill.
When she was in the House, Capito gave a floor speech against a bill with similar language regarding criminal penalties. Among other criticisms, Capito said the bill “imposes vague new standards for criminal liability, potentially criminalizing most infractions and subjecting officials to sanctions over which they have no direct control.”
Last week, Capito spokeswoman Ashley Berrang said while “we’ve just seen the current standard was sufficient to convict those who violate mine safety laws,” that, “going forward, [Capito] would be open to considering whether stricter penalties, like a felony, are necessary to deter violations of mine safety standards.”
Check the Gazette-Mail’s Blankenship trial page for complete coverage of the trial and the verdict, updates on the case, a timeline, exhibits and other features.
Reach Ken Ward Jr. at
kward@wvgazettemail.com,
304-348-1702 or follow
@kenwardjr on Twitter.www.DavittMcAteer.com Davitt McAteer & Associates
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