WASHINGTON – Don Blankenship’s legal team says the U.S. Supreme Court should hear his criminal appeal to ensure other corporate leaders don’t face similar prosecution for workplace safety violations in the future.
Blankenship’s attorneys filed a reply Sept. 13 to the Trump administration’s brief last month asking the court not to hear Blankenship’s appeal.
Bill Taylor, the lead defense attorney, argues that previous rulings in the case “threaten to dramatically expand federal criminal liability in a wide range of contexts.” That includes cases in which executives “should have known that an act or omission would lead to safety violations,” regardless of whether that executive “wanted violations to occur or continue.”
Because the Blankenship ruling could be used in future cases, Taylor contends the justices should summarily reverse the conviction without it being argued in front of the court.
“Simply put, the decision … and the positions espoused by government threaten to dramatically expand federal criminal liability in a wide range of contexts,” Taylor wrote. “The logical conclusion of the government’s position is that criminal willfulness can be established by ‘reckless disregard’ in all circumstances.”
Blankenship’s team has appealed to the U.S. Supreme Court, arguing that 4th Circuit Court of Appeals was wrong on two points. They say U.S. District Judge Irene Berger wrongly told the trial jury that Blankenship’s “reckless disregard” of mine safety and health standards amounted to criminal willfulness and that Berger wrongly denied the defense a chance for a second cross-examination of former Massey official Chris Blanchard. The DOJ says both the 4th Circuit and Berger were correct in their earlier rulings.
Blankenship's appeal could be among potential cases discussed by the justices during a private conference scheduled for Oct. 6, according to an online docket.
In its 31-page filing last month, the DOJ says Blankenship “could not plausibly argue” that he didn’t have knowledge of safety standards because “he received and reviewed daily reports of citations” at Upper Big Branch.
Attorneys for the former Massey Energy CEO filed the petition May 25 asking the Justices to take up an appeal of his criminal mine safety conviction. They say the U.S. District Court in Charleston and the 4th Circuit Court of Appeals in Richmond, Va., both erred in rulings, and they claim Blankenship was a victim of politics.
Blankenship was sentenced to a year in prison on a misdemeanor conspiracy charge for the 2010 explosion at the Upper Big Branch mine in Raleigh County that killed 29 miners. A federal jury had convicted Blankenship of the one misdemeanor count, while acquitting him on felony charges of securities fraud and making false statements. He finished serving that one-year federal sentence on May 10.
The Supreme Court granted the extension after Acting Solicitor General Jeffrey B. Wall said his office needed more time “to complete preparation of the government’s response, which was delayed because of the heavy press of earlier assigned cases to the attorneys handling this matter.”
Blankenship’s petition claims U.S. District Judge Irene Berger wrongly told jurors that Blankenship’s “reckless disregard” of mine safety and health standards signaled a criminal willfulness. It also claims Berger was wrong to not allow defense attorneys a chance to cross-examine former Massey official Chris Blanchard a second time.
“The first error was that the trial judge gave instructions to the jury that my failure to prevent others from violating mine safety laws meant I was committing a crime myself,” Blankenship said in a May media statement about the petition. “The second error was that the judge denied my attorneys any opportunity to cross-examine a lead prosecution witness about 42 mine citation exhibits and about statements the witness alleged were made by me.”
Blankenship’s team also says both courts disregarded legal precedent about the meaning of “criminal willfulness” so that it could “dramatically expand” the liability of officials.
“It will open the door to jury presentations that criminal willfulness is established on a finding that corporate officials did not do enough to ensure that their companies never operate outside of any legal or ever-changing regulatory requirements,” Blankenship attorney William W. Taylor III wrote in the petition. “And it will allow those in supervisory positions to be incarcerated for management decisions they made without any conception of illegality or intent that any laws would be violated.”
The petition also says Blankenship was the victim of a conspiracy among Democratic political leaders, mentioning President Obama, Sen. Joe Manchin and former Sen. Jay Rockefeller
“This case stemmed from a rush to judgment at the highest levels of the federal government,” Taylor wrote. “It was permeated throughout with unchecked abuses of power by prosecutors intent on securing a conviction by any means possible in order to assign to petitioner blame for a terrible tragedy. This prosecution begs for scrutiny by this court.
“Any hope of a fair and impartial investigation was dashed almost immediately. Before investigators even were able to enter the mine, President Obama declared from the White House that the tragedy was ‘a failure first and foremost of management’ and that the mine’s owners needed to be ‘held accountable for decisions they made and preventative measures they failed to take.”
Blankenship’s legal team also says the U.S. Attorney’s Office produced dozens of memos that were not disclosed to them before trial. They say the memos included 10 about key government witnesses who testified against Blankenship at trial.
“But these legal issues pale in their importance to most Americans versus the issues that the cert petition makes clear only in its introduction,” Blankenship wrote in his statement. “It should be hard for Americans to believe (for example) that an Assistant U.S. Attorney actually argued in a federal court that because my free speech ‘troubles the U.S.’ my liberties should be restrained while I awaited trial.
“The American public should be concerned when federal prosecutors argue and a judge (Berger) agrees that an American who claims that the U.S. government has issued a false investigation report on a tragedy such as UBB should be treated differently under the law than other Americans. They should pay close attention when a U.S. Senator (Manchin) with no mining experience says before trial that he believes an American has ‘blood on his hands.’”
Blankenship said people should question why he was incarcerated before an appeal after being convicted of a non-violent white collar misdemeanor.
“It should concern all Americans when prosecutors say a defendant's free speech ‘troubles the U.S.’ and he then becomes the only misdemeanor at a federal prison housing more than 2,000 inmates,” Blankenship wrote. “It should get our attention when after more than four and one half years of investigation and a two-month trial, the U.S. government could not convict me of a felony and yet the U.S. prosecutors rushed to ‘60 Minutes’ to declare that I was like a ‘drug kingpin’ running a ‘criminal enterprise.’
“These prosecutors were not only allowed to exercise their free speech without being indicted they have special protections under American law, making it nearly impossible to successfully pursue legal actions against them.”
The chances of the Court hearing Blankenship’s appeal are slim. It hears fewer than 100 cases a year from the 7,000 to 8,000 filed.
“The Supreme Court only agrees to hear a small percentage of cases brought to it,” Blankenship wrote. “This case begs to be one of those cases that the Court agrees to hear. The First Amendment right to free speech and the American judicial system’s integrity are both at issue.
“The trial court's actions included putting me under onerous terms of release and included my not being able to speak even privately to thousands of people, sending me to prison before appeal, sending me to prison for a misdemeanor, giving me the maximum sentence allowed under the law; issuing a gag order; telling the jury I am guilty of a crime because I did not prevent others from committing crimes and not allowing cross-examination of a key witness’ testimony.
“All of these actions would chill most Americans from continuing to speak in a manner that ‘troubles the U.S. and which should trouble this court.’”
Blankenship also talked more about how the “efforts to shut me up have now moved to efforts to make me disappear.”
“Manchin said after I was released, ‘Don Blankenship needs to disappear,’” Blankenship wrote. “The question is again why? Is it because the government’s investigation reports on UBB are false and that MSHA cut the airflow in half shortly before the explosion?
“If I said Joe Manchin should disappear, would some claim I was threatening him with harm or implying that others should make him disappear? I think so.
“Jay Rockefeller, then U.S. Senator, said prior to my trial that ‘a fair trial is more than he (Don) deserves.’ This is the Senator who championed my trial judge’s appointment to be a federal judge. What signal did Rockefeller’s statement send to the trial judge? Does it taint the judiciary that the then lead U.S. Attorney (Booth Goodwin) is the son of one of the five federal judges in the same federal district where the trial was held?
“There is more that could be said but I hope this letter is enough to ‘trouble’ all Americans.”
U.S. Supreme Court case number 16-1413