U.S. Attorney Booth Goodwin declared Thursday's jury verdict finding former Massey Energy Co. CEO Don Blankenship guilty of conspiring to violate mine safety standards as "a landmark day for the safety of coal miners."
"The CEO and chairman of one of America's largest coal companies now stands convicted of willful violations of the laws that are designed to keep coal miners safe," Goodwin said. "He now faces the prospect of federal prison ... to go from boardroom to the prospect of incarceration sends a powerful message to executives who would ignore the safety of their workers."
Goodwin spoke during a courthouse press conference held shortly after the verdict was announced, and after Blankenship's lead defense lawyer, Bill Taylor, vowed a successful appeal during a brief appearance as he and other attorneys escorted Blankenship down the courthouse steps.
"We are disappointed, but not as disappointed as we could have been," Taylor said, referencing the "not guilty" verdict on two of the three counts in the indictment at issue in the trial, including all of the felonies, which carried much longer potential prison sentences. "This case should never have been brought."
While declining to cite many examples, Taylor promised the defense team would have plenty of fodder for an appeal to the 4th U.S. Circuit Court of Appeals.
"This is a record which will be very full of errors on appeal," Taylor said. "I'm as confident as I've ever been that the court of appeals will reverse the conviction."
During his press conference, Goodwin said he was "not in any way disappointed" in the result, even with the jury not convicting Blankenship on the false statement and securities fraud charges that carried 25 years of the total maximum of 30 years for all three counts.
"I think it brings justice - justice that was long overdue in this case," Goodwin said. "The most serious conduct, certainly, that he was involved in was willfully violating the mine safety laws and placing his miners - those who work for him - at risk."
Legal experts and mine safety advocates who have closely followed the two-month trial said the jury's split verdict highlights serious weaknesses in federal mine safety laws, but also shows shrewd tactics by prosecutors in bringing a multi-count indictment that potentially gave jurors - who had reported twice that they were deadlocked - something to bargain about when deciding a verdict.
"It gave the jury the chance to split the baby," said Mike Hissam, a criminal defense lawyer at the Charleston firm Bailey and Glasser who worked on the early stages of the Upper Big Branch investigation when he was an assistant prosecutor in Goodwin's office.
The securities fraud and false statement charges were made in connection with a statement issued after the Upper Big Branch Mine explosion that said Massey did not "condone" safety violations and that company officials "strive" to comply with all rules at all times. Prosecutors allege that Blankenship engineered the statement to try to stop the company's stock price - and his personal wealth - from plummeting after the explosion.
Hissman noted that it was unlikely that jurors would have been talking about the mine explosion or about Blankenship's own personal wealth without those two counts being at issue.
"Convictions are what counts," Hissam said. "The government convicted Don Blankenship, the top of the food chain of a huge coal company."
Longtime mine safety advocate Davitt McAteer, who led an independent team that investigated the Upper Big Branch explosion, said he hopes the conviction of Blankenship is a "game-changer" for how mine safety rules are enforced - and how corporate officials choose to comply with those laws.
"Hopefully, this will send a message to the captains of industry, that if you systematically violate the mine safety laws, you will be held accountable," said McAteer, who was head of the U.S. Mine Safety and Health Administration during the Clinton administration. "We've been mining coal in earnest in West Virginia since the 1880s, and this is the first time something like this has happened."
When McAteer was at MSHA, the investigation of the deaths of eight miners in a December 1992 explosion at Southmountain Coal in Virginia led mine operator William Ridley Elkins to plead guilty and be sentenced to six months in prison.
At the time, though, Southmountain was a relatively small company, compared to Massey, which had been listed as the nation's sixth largest coal producer at the time of the Upper Big Branch disaster.
Pittsburgh lawyer Bruce Stanley, who represented the families of two miners who died in the January 2006 fire at Massey's Aracoma Alma No. 1 Mine, noted that Blankenship and other coal executives have never faced state criminal charges following the deaths of miners, and that the obligation to prosecute those kinds of crimes rests with elected local prosecutors, not U.S. Attorneys like Goodwin. He also noted that federal law currently makes violating a federal mine safety standard a misdemeanor - punishable by only up to one year in prison - while the financial charges Blankenship was acquitted of charges carrying much stiffer penalties.
"To me, he was convicted of the most serious charge," Stanley said. "Federal prosecutors can only shoot the arrows that they have in their quiver. Sadly, when it comes to prison time, Congress has decided that lying to Wall Street is a much more grievous sin than conspiring to violate federal mine safety laws."
Count One of the Blankenship indictment - the conspiracy charge the former CEO was convicted of - actually included two prongs, with each being an "object," or a goal of the conspiracy. One was to violate federal mine safety and health standards, a misdemeanor.
The other was the defrauding of MSHA, by thwarting federal inspection and enforcement efforts, which is a felony.
Jurors concluded that Blankenship was guilty of Count One, but they checked only a blank that said they believed he was conspiring to violate safety standards. They did not agree that Blankenship was also conspiring to defraud MSHA. That decision by the jury bumped the Count One conviction from being a felony - punishable with up to five years in prison - to being a misdemeanor, punishable with up to one year in prison.
Tony Oppegard, a longtime mine safety advocate in Kentucky, said that one thing the jury's verdict shows is the continuing need for Congress to revisit the mine safety law and make violating safety standards a felony.
"That's the worst," Oppegard said. "That's the biggest loophole in the law. If that were changed, maybe [coal company officials] would look at operating their mines a little differently."
Check the Gazette-Mail's Coal Tattoo blog for frequent updates on the Blankenship case, and visit the Blankenship trial page for a timeline, exhibits and other features.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.