CHARLESTON, W.Va. — Cross examination could resume Monday for the FBI investigator who was supposed to be the U.S. government’s final witness before the prosecution rested its case against former Massey Energy CEO Don Blankenship.
Questioning of FBI Special Agent James Lafferty by Jim Walls, one of Blankenship’s attorneys, was suspended Thursday morning to allow the prosecution time to review the additional phone recordings the defense wants to introduce through Lafferty’s testimony. U.S. District Judge Irene Berger decided Thursday afternoon to send the jury home until Monday.
After buying Massey Energy in 2011, Alpha Natural Resources turned over the phone recordings that Blankenship himself made in his office to the federal government.
Until Lafferty’s Tuesday testimony, when he told the jury he’d gone through approximately 1,600 of those recordings as part of his investigation, Walls said he and Blankenship’s other attorneys did not know there would be an opportunity to introduce their own recording picks.
Prosecutors for the U.S. government received notice of the defense’s intent to introduce different recordings on Tuesday evening and, because of that, Steve Ruby, assistant U.S. attorney, asked for and was granted more time to review what exactly Blankenship’s defense wants to play for the jury weighing three federal charges against the former Massey CEO.
During Oct. 13 testimony from Sandra Davis, Blankenship’s former executive assistant, the prosecution played at least 13 of those phone recordings — which included Blankenship and other Massey executives — for the jury. At least one of those calls, dealing with a filing with the U.S. Securities and Exchange Commission, was revisited during Lafferty’s testimony this week.
Initially, Judge Berger said she believed the defense recordings were admissible. However, she will hear motions on those recordings at 8 a.m. Monday.
Blankenship is accused of violating mandatory mine safety regulations in the two years prior to the UBB Disaster on Apr. 5, 2010 and lying about those safety practices to securities regulators and Massey shareholders after the explosion.
Lafferty previously testified his investigation into UBB began on Apr. 9, 2010.
Ruby was permitted to move forward with redirect questioning prior to the Thursday lunch break and quickly focused in on Massey’s organizational structure, with Blankenship at the top, and the salaries paid to several former Massey board members. In one case in 2009, a board member earned upwards of $60,000 for one regular Massey board meeting, Lafferty testified. Ruby finished that part of his questioning by mid-afternoon Thursday prompting the judge’s decision to dismiss the jury for the weekend.
Judge Berger has also promised a ruling soon on a Rule 29 motion, seeking acquittal of all three charges against Blankenship. The judge allowed the defense to argue the motion after she sent the jury home early Thursday.
The case is “ripe for acquittal,” defense attorney Eric Delinsky said.
“The government doesn’t come close to meeting the standards after five to six weeks of evidence,” he told Judge Berger. “The government has concocted a conspiracy that doesn’t exist in fact and is fictional.”
Ruby told the judge the prosecution has offered “overwhelming evidence” on all three counts including Blankenship’s pro-safety statement not being “sincere.”
Earlier on Thursday morning, Walls took Lafferty through 14 Mine Safety and Health Administration citations and the corresponding daily violation reports that Blankenship and other Massey executives began receiving for all of the company’s mines in Apr. 2009.
Lafferty admitted those daily reports did not include specifics on the underground or surface conditions at the Upper Big Branch Mine along with all other Massey mines. They were, instead, limited to four areas: type of order, whether it was serious or substantial, the section being violated and the actual penalty.
According to Walls, Blankenship was taking steps, at the time, to reduce mine safety violations company-wide for safety reasons. “I have a different take on that,” answered Lafferty. He said he believed Blankenship was most concerned about the monetary costs of such rampant violations.
So far, members of the jury have heard from 27 prosecution witnesses during 24 days of testimony. The trial began on Oct. 1 with jury selection.
Judge Berger did announce Thursday evening she’ll have court, absent the jury, Friday morning for housekeeping matters.
(Jeff Jenkins also contributed to this story.)