CHARLESTON, W.Va. — Attorneys for Don Blankenship will argue in federal appeals court Wednesday that the former Massey Energy CEO did not willfully disregard safety standards leading up to the explosion that killed 29 coal miners at the Upper Big Branch mine on Apr. 5, 2010.
“Mr. Blankenship’s conspiracy conviction is infected with error and must be reversed,” his lawyers wrote in his appeal brief to the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.
Oral arguments begin at 9:30 a.m. Wednesday in the appeal of his 2015 conviction of conspiracy to willfully violate mandatory mine safety and health standards.
The crime is a misdemeanor, and Blankenship was sentenced this past April 6 to the maximum penalty of one year in prison and a $250,000 fine. He’s serving his sentence at Taft Federal Prison in California.
His 94-page appeal brief filed June 27 contends that there was never any proof that Blankenship willfully disregarded federal mine safety standards.
“There was no allegation that Blankenship and his alleged conspirators believed they were violating and intended to violate the law,” Blankenship attorney William Taylor III wrote in the appeal brief.
Blankenship’s lawyers argue that Blankenship was attentive to safety. They also contend that willfulness requires proof of knowledge that conduct is unlawful and thus an intent to break the law:
“And they authorized the jury to find willful violations and to convict absent proof that Blankenship believed he was violating and intended to violate the law when, among other things, making management decisions about budgets and production targets.”
Federal prosecutors, led by Assistant U.S. Attorney Steve Ruby, counter that willful disregard doesn’t have to be explicit and that Blankenship demonstrated a pattern of flouting safety standards.
“Should this Court hold that reckless disregard for the law can never be part of the definition of willfulness in a criminal prosecution, thereby overruling its own precedents and contracting those of the Supreme Court and every other court of appeals?” Ruby and the federal attorneys asked in their own 97-page response brief.
The federal prosecutors contend that Blankenship was obsessed with safety reports but that he made clear to subordinates that his priority was coal production. They contend the behavior constituted reckless disregard.
“No court, including the Supreme Court, has ever held that reckless disregard cannot form a component of willfulness in appropriate contexts, and this Court would contradict decades of precedent were it to become the first,” the federal prosecutors wrote.
Other arguments
Blankenship’s appeal has several other aspects, including whether the superseding indictment properly identified which of the federal mine safety regulations Blankenship was accused of willfully violating.
Another bone of contention is whether Blankenship’s attorneys should have been allowed to recross-examine one of the government’s key witnesses.
And, finally, the two sides disagree whether the jury — which deadlocked twice — received proper instructions about reasonable doubt.
The instruction to jurors by U.S. District Judge Irene Berger was: “If the jury views the evidence in the case as reasonably permitting either of two conclusions — one of innocence, the other of guilt — the jury should, of course, adopt the conclusion of innocence.”
Blankenship’s lawyers argue that jurors received insufficient instructions that failed to differentiate between proof beyond a reasonable doubt and lesser standards such as a preponderance of the evidence.
“There were vigorous disputes about what the evidence in this case meant, especially in relation to Blankenship’s intentions and state of mind,” Taylor wrote. “Confusing even one juror about the standard of proof could have tipped the outcome.”
Federal prosecutors countered that this claim is poppycock and that the jury charge included 38 instructions on the necessity for proof beyond a reasonable doubt.
“Given the entirety of the trial court’s jury charge, there can be no serious contention that the jury was unaware that it must find proof beyond a reasonable doubt in order to convict,” prosecutors wrote.
“Defendant asks this Court to become the first to reverse a conviction based on the ‘conclusion of innocence’ instruction given here, but the record provides no reason for the Court to do so.”
How it will work
Each side in such hearings before the circuit court of appeals generally has 20 minutes of argument time, for a total of 40 minutes of argument time per case.
Appellants argue first and may reserve up to one-third of their time for rebuttal following appellees’ argument.
The Fourth Circuit court hears appeals from the nine federal district courts in Maryland, Virginia, West Virginia, North Carolina and South Carolina and from federal administrative agencies.
The court has 15 active judges. The court uses a computer program to achieve random selection of three-judge panels and random assignment of cases to panels.
If a panel has had significant prior involvement with a case, the case will be returned to that panel if possible.The identity of the three-judge panel hearing the case is not disclosed until the morning of oral arguments.
The court sits during six weeks in Richmond each year at the Lewis F. Powell, Jr., United States Courthouse and at special sessions scheduled at law schools and other locations throughout the circuit.
Following argument of each case, the judges come down from the bench to shake hands with counsel and thank them for their advocacy before calling the next case.