Blankenship’s attorneys want to see MSHA documents

CHARLESTON, W.Va. — Attorneys for accused conspirator Don Blankenship claim there may be violations of their client’s discovery rights. The claim was made Thursday while the jury was out of the room in the Blankenship federal criminal trial.

Former Massey safety official Bill Ross gave a full day of testimony but what happened after the 12-member jury was excused for the mid-afternoon break may have a future impact on the case.

U.S. District Judge Irene Berger questioned Ross about a statement he had given in connection with a separate legal proceeding. It has to do with documents connected to the Upper Big Branch mine in Raleigh County where 29 men died in an April 2010 explosion.

Ross, who had a 32-year career as a federal mine safety official before taking a job with Massey Energy in 2008, had given the statement about a visit he made to the MSHA field office in Mount Hope in the months after the explosion. Ross was looking for documents focused on floor bursts at UBB.

Ross told the judge the secretary told him the documents were no longer there. She told him the man that had taken his place at MSHA had destroyed many documents.

Former Massey Energy CEO Don Blankenship leaves the federal courthouse after a full day of testimony Thursday.
Former Massey Energy CEO Don Blankenship leaves the federal courthouse after a full day of testimony Thursday.

Blankenship, who is charged with conspiracy to break mine safety laws in favor of production and lying to investment regulators following the UBB explosion, has long blamed the 2010 disaster on a sudden rush of natural gas into the mine.

“UBB was the result of MSHA’s ventilation changes and a natural gas inundation.  It had nothing to do with any of the things that are commonly reported in the news,” Blankenship said in a MetroNews “Talkline” interview on Nov. 21, 2013.

Blankenship’s lead attorney Bill Taylor told Judge Berger Thursday there may have been some discovery violations of his client’s rights in connection with the missing documents. He said they’ve asked MSHA over and over again for documents including copies of emails but haven’t gotten anything.

Judge Berger listened to the information but made no immediate ruling.

Ross also told the judge about a brief conversation he had with a woman in a Charleston parking garage following his testimony Wednesday.

“I just want to say thank you, Mr. Ross. You’re doing a good job,” Ross told the judge the woman said.

Under questioning from Blankenship’s attorney, Ross couldn’t say if the woman was anyone who had been attending the trial.

Judge Berger made no ruling.

Ross is expected to be back on the stand Friday morning for more redirect questioning from Assistant U.S. Attorney Steve Ruby.

Ross ended cross examination earlier Thursday afternoon saying he didn’t believe Blankenship wanted to violate federal mine safety laws. Ruby used his initial redirect questioning to repeat the government’s case against Blankenship including reintroducing a memo where Blankenship emphasized running coal and two audio recordings where Blankenship criticized time spent on Black Lung disease and the “craziness” of how Massey operated.

Thursday morning the defense continued to try to pick apart the details of the many problems Ross identified during a 2009 review of Massey Energy’s mines.

“They asked me to be open about what I thought we needed to do better,” Ross told Taylor.

Taylor showed the jury two e-mails that indicated Blankenship wanted Ross to provide an “open and unbiased” assessment about how to reduce Massey’s mine safety violations.

Ross talked with miners in his Massey training classes along with others to develop a list of trouble areas that he detailed for two Massey executives, not Blankenship, during a June 2009 meeting. Notes from that meeting made up what has been referred to as the Ross memo in this trial.

Taylor revisited several parts of that memo with Ross Thursday.

Under cross examination, Ross said he did not initially talk with anyone at UBB as part of the review, though later testified he’d spoken informally with a UBB foreman and superintendent. No other specific Massey mines were named in his findings.

Ross confirmed no one told him they were seeing willful or criminal violations at Massey mines.

On recommending additional personnel for Massey’s mines, Ross testified he was not aware of specific staffing plans for Massey’s mines and so could not define what an adequately staffed mine would be. “I was just listening” to those working in the mines, he said. “It sounded as though they needed more people.”

At one point, Taylor pulled out a large white flip chart to calculate staffing for a hypothetical mine and even showed Ross staffing reports for UBB to try to prove that UBB, specifically, had enough personnel. No, Ross said, he did not consult those reports during his review of Massey.

Ross maintained that was not the focus of his analysis since he’d been charged with finding ways to reduce Massey’s violation numbers.

“If we get these violations, somewhere something went wrong,” he said.

The day started with questions from Taylor for Ross that focused on the ventilation plan at UBB in late 2009 and early 2010.

There were times, Ross testified, when it seemed that MSHA “was determined to stop that longwall.”

MSHA’s issue, he said, was with Massey’s plan to use belt air to supplement ventilation at the longwall face. Ross told the jury a belt fire was a better alternative than a face ignition or explosion on the longwall because of inadequate ventilation.

Blankenship’s trial began with jury selection on Oct. 1 in front of U.S. District Judge Irene Berger.





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