RICHMOND, Va. — Members of a three-judge panel peppered an attorney for jailed coal company CEO Don Blankenship with questions during oral arguments for an appeal.

Blankenship’s attorneys contend that jurors were wrongly instructed about the meaning of “willful disregard” during his federal criminal case that followed the explosion of the Upper Big Branch Mine.

Lawyers for Blankenship also argue Judge Irene Berger’s jury instructions did not properly define and weigh the presumption of innocence.

“If the instructions had been slightly different, you contend this defense-favorable testimony would have created reasonable doubt?” asked Senior Judge Andre M. Davis.

Davis was one judge on the panel that also included Judge James A. Wynn Jr. and Chief Judge Roger L. Gregory.

Oral arguments began at 9:30 a.m. Wednesday at the Lewis F. Powell, Jr., United States Courthouse in the appeal of Blankenship’s 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 is serving his sentence at Taft Federal Prison in California and did not attend Monday’s hearing.

Blankenship’s lead attorney, Bill Taylor, had 20 minutes to make his case — but the three-judge panel almost immediately launched into questions about precedent and how “willful disregard” should be defined.

The judges sometimes focused on Massey Energy’s record of mounting safety violations under Blankenship’s watch.

“If you continue to do something over and over a period of time, knowing what the consequences could be…” Judge Wynn began.

“Here we’re talking about repeated violations.”

Taylor argued that Blankenship was well aware of the violations but that he hadn’t intended for conditions at Upper Big Branch to be unsafe or to cause the explosion that resulted in the deaths of 29 miners.

He contended that the defense was able to prove its case to the jurors to the extent that they deadlocked twice and that particular wording of Berger’s instructions tipped them toward their guilty verdict on the conspiracy charge.

“There was a mass of contradictory evidence,” Taylor said. “The jury deliberated for two weeks.”

Assistant U.S. Attorney Steve Ruby argued that Judge Berger’s instructions to the jury were adequate and that the defense team’s argument amounted to parsing particular phrases.

The judges also asked Ruby a lot of questions, mostly dealing with which precedents should be used to define “willful disregard” and how the definition should be used in the Blankenship case.

“What am I missing here?” Davis asked Ruby at one point.

“I don’t think you’re missing anything your honor,” Ruby replied.

The judges asked Ruby more questions about whether Blankenship had to be directly involved to constitute a conspiracy.

They also asked questions about the preferred phrasing of the presumption of innocence in jury instructions.

The court posts oral arguments here within a day: http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments

It’s not clear how soon the judges might decide Blankenship’s appeal and release an opinion, but it seems not any time soon.

Here’s how the court describes how soon opinions will be released: “The court’s median disposition time for cases decided on the merits is about six months from notice of appeal to entry of judgment. Disposition times may vary widely from case to case.”

Blankenship reported to prison May 12 so six months of his one-year sentence have passed already.

 

 

 

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