WASHINGTON – The lead attorney for Don Blankenship is confident his team will win its upcoming appeal to the 4th Circuit.
Bill Taylor, a founding partner of the Washington firm of Zuckerman Spaeder, says he thinks “there are so many things wrong with the government’s case from a legal point of view.”
Blankenship, the former CEO of Massey Energy, was sentenced earlier this month to one year in prison and a $250,000 fine for a misdemeanor charge of conspiring to violate mine safety standards at the Upper Big Branch Mine in Raleigh County where 29 miners died in a 2010 explosion. Blankenship also will spend a year on supervised release after his time in prison.
“We have said a lot in our pleadings about the merits of the case and the motivation of the people bringing it,” Taylor said. “That’s all fair game. But now, we are in the process of filing the appeal. And, I happen to think we’ll win that.
“Meanwhile, the piling on continues. Much of the media and various public figures are critical and are more than willing to jump on anything that looks like it’s going to get them votes and viewers.”
Taylor’s legal career includes defending Dominique Strauss-Kahn, the former managing director of the International Monetary Fund, on charges of sexual assault of a hotel employee. Those charges later were dropped. More recently, he represented former IRS official Lois Lerner, who was accused of targeting Tea Party groups.
Taylor also has represented the Clinton White House chief of staff and Democratic National Committee finance chairman in the Whitewater investigation as well as the law firm Milberg Weiss when some partners at the firm were accused of covering up millions in illegal kickbacks to plaintiffs.
Taylor says there are some major questions he has about the Blankenship case.
“For example, why didn’t the government call any MSHA inspectors to testify at the trial?” he asked. “It was a trial about citations at the Upper Big Branch Mine. The inspectors have to write the inspections. They have to see things. Some are serious, and some are trivial. And all of them get fixed within a day or so.
“The charge was that the mine received 837 citations and that it was his fault. You would’ve expected they would have one or more MSHA inspectors come into the courtroom to testify. That’s not what happened. We have been speculating as to why, but we just don’t know.”
“We know the inspectors would have had to acknowledge they wrote a lot of emails, but they never were produced to us.”
Taylor said he has other questions.
“Why is it that they did not pursue the destruction of documents by MSHA?” he asked. “If you’re going to bring a case against somebody based on law enforcement activities, why didn’t they? Why do they insist on not producing the relevant e-mails.
“Why do they not have an interest in what happened at Upper Big Branch in terms of ventilation when their own witness (Bill Ross) says it was dangerous to reduce the ventilation in the mine based on experience.”
Taylor questioned how the case has been portrayed in the media as well.
“For reporters, it’s so easy to just report on what the government says but not ask a single question about some of the things that might look like they could be important,” he said. “And then, they just accept what they’re told.
“My concern all along is if you’re prosecuting him for willful violations, who is going to testify against that? Well, there were not any willful violations. He wasn’t accused of carelessness or anything like that. Willful means you know you’re doing something bad, and you do it anyway.
“There just are some very basic problems with the government’s case.”
After Blankenship being in the public eye for years, especially the five years since the Upper Big Branch tragedy, Taylor knows it is hard to change public opinion.
“All we can do is point out he didn’t get a fair trial, and we expect the Court of Appeals to reverse this,” Taylor said. “It’s just things such as if the government didn’t call inspectors, how can you possibly conclude he got a fair trial because we didn’t have the chance to cross examine. We’d love to ask questions about these violations.”
Looking back on the trial and sentencing, Taylor said the Blankenship case has been a difficult one to defend.
“First of all, the people had been saturated for four and a half years with the notion that this was a terrible tragedy, and that Don Blankenship must be a criminal,” Taylor said. “People were willing to believe that.
“But, I think it was a very bright moment when the jury acquitted him of the two other charges (securities fraud and making false statements). It tells you something about the case. In a climate where people were so ready to do so, the government couldn’t pull out enough evidence to convict him of those.”
Taylor also was critical of Booth Goodwin, the former U.S. Attorney who brought the case against Blankenship. Goodwin resigned last year and now is running for governor.
“Why is it that as a citizen, Booth Goodwin appears in court, working the crowd like it’s a fundraiser?” Taylor asked. “I’ve never seen anything like that in my life. He’s going around shaking hands with everybody as if this is an opportunity for him to take credit.
“That, to me, is one of the worst things I’ve ever seen. I’ve been in a few cases, but I’ve never seen such blatant evidence of a political motivation … having his picture taken, commenting on his campaign materials.
“The court system is supposed to be apolitical, but you certainly can’t say that about this case.”
Taylor said the question at the heart of the case is simple: Did Blankenship do anything illegal?
“There is no reason why a CEO shouldn’t be prosecuted if he commits a crime or has others commit a crime,” Taylor said. “Take Enron, for example.
“You shouldn’t be acquitted because you’re a CEO, but neither should you be convicted because you’re a CEO. You should be convicted if there is evidence you committed a crime. We think it’s very important that people not be prosecuted by what others do unless they’re part of the scheme or controversy.
“The government didn’t accuse him directly of committing a crime. They accused him of a conspiracy, which was very vague and undefined. You have to show there is mutual agreement of a goal.”
Taylor said Goodwin and Steve Ruby, an assistant U.S. Attorney who handled the case, often used an analogy comparing the case to a drug organization where Blankenship was the kingpin.
“If you use that drug analogy, you have to have proof this is a group of people who want to do something illegal,” Taylor said. “And that isn’t the case here.”
“Sure, we don’t want executives to just get a free ride if they’re responsible. But on the other hand, we don’t want to make it so dangerous to be an executive that you’re prosecuted for anything someone else does.”
Taylor insists the case never should have been brought against Blankenship.
“The government waited four and a half years to bring the case,” Taylor said. “And, they didn’t bring it until after Don put out his documentary about the explosion. They didn’t present a case of a conspiracy to willfully violate the Mine Safety Act.”
“Yes, Don Blankenship insisted on production quotas. But there never was evidence that you could connect those dots to show Don Blankenship violated Mine safety standards. Everyone said there must be a conspiracy with so many violations.
“But if you compare the citations, the Harris mine (located near the Upper Big Branch Mine) had more violations by a lot, more miners and produced less coal in the years before the explosion.”