CHARLESTON, W.Va. — U.S. District Judge Irene Berger could decide by Friday morning on motions from defense attorneys to allow into evidence longer portions of phone recordings featuring former Massey Energy CEO Don Blankenship.
Blankenship, 65, faces three criminal counts for allegedly planning to break mine safety rules in favor of coal production at the Upper Big Branch mine in Raleigh County before the April 2010 explosion that killed 29 miners. A fourth count alleges he lied to investment regulators following the blast. He is not charged with causing the explosion.
Blankenship’s defense team objected Thursday afternoon to the context of 21 audio recordings the former Massey Energy boss made in the months leading up to the explosion. Federal prosecutors claim the recordings show Blankenship cared more about production and making money than safety. The prosecution told the jury in opening statements earlier this week it planned on using the recordings. The defense argued in its objections Thursday if the recordings are going to be allowed, longer sections should be played to give a better context of the various conversations.
“The tapes are unnecessary, irrelevant, target the defendant and are intended to inflame passions against him,” Blankenship’s attorney Eric Delinsky said.
The defense is against allowing any of the recorded conversations to be used but said if they are a completed context is necessary.
“It’s about fairness,” Delinsky said.
Judge Berger said she would review the transcripts before the trial resumed Friday.
The hearing on the recordings took place just before the prosecution was set to call a witness to authenticate them. The witness was not called and the judge released the jury for the day before she heard about a half-hour of arguments concerning the recordings.
Earlier in the day the 12-member panel heard from former UBB miner Bobbie Pauley.
Pauley, who now works as a training specialist for the federal Mine Safety and Health Administration, was a “red hat” miner at UBB beginning in January 2008 and worked there until shortly after the explosion.
At times, she testified, she was instructed to do things she had learned not to do during training.
Once brought on permanently by Massey later that year as a “black hat” miner, she ran a continuous miner. Her team, she told the jury, was charged with “running coal.”
She testified Massey’s safety program S1-P2 (Safety 1st, Production 2nd) was a “joke” to miners underground.
“We said it was P-1, S-2,” Pauley said. “I had no knowledge of what the whole program was about.”
Pauley was also a dispatcher for a time at UBB and testified she would hear from security personnel when inspectors arrived and was told to contact those mining coal to get ready.
“It was just standard procedure,” she said.
Pauley said on one occasion she did so when a safety inspector was in the same room. She said former UBB Superintendent Gary May told her “don’t let him hear you do that.”
But under cross-examination Pauley admitted she would radio underneath when company officials arrived also because they wanted to make sure those underground were running right.
She also detailed a conversation she had with Blankenship following the UBB explosion. She said he was at the memorial service in Beckley attended by President Barack Obama. She said Blankenship offered his condolences. She was also granted time off after the explosion.
Thursday started with a return to the stand for Tracy Stumbo, a mine expert out of Kentucky and the prosecution’s first witness, who was called to give jurors a crash course in general mine operations, terminology and equipment.
His testimony spanned several hours over two days.
At one point, Stumbo used a giant map of the UBB Mine, dated August 7, 2010, to illustrate some of the terms he’d covered, but he could not speak directly to the exact operations and conditions within the Raleigh County mine because he had never been in it.
Under cross examination, Stumbo was questioned about possible safety violations spotted in photos he’d provided of mining equipment as illustrations. Those photos were not connected to UBB.
Blankenship faces up to 30 years in prison if he’s convicted on all counts.
Jury selection for Blankenship’s trial began on Oct. 1. A jury of 11 women and four men, including three alternates, was seated on Oct. 7.
(Shauna Johnson also contributed to this story)