As prosecutors and defense lawyers prepare for this week's sentencing of Don Blankenship, both sides are looking backward: Blankenship's lawyers are re-arguing key parts of the case they lost at trial, while government attorneys want the case to be viewed in the context of West Virginia's long history of major coal-mining disasters.
Defense lawyers say Blankenship shouldn't spend any time in jail, maintaining that his conviction doesn't mean the jury accepted the government's "broad arguments" about Blankenship's lead role in a conspiracy that put coal production and corporate profits over miner health and safety at Massey's Upper Big Branch Mine, where 29 miners died in an April 2010 explosion.
Prosecutors asked for the maximum penalty, and are emphasizing the serious risks posed by the kinds of longstanding mine safety rules - ventilation standards and coal-dust controls aimed at preventing such explosions - that Blankenship was found guilty of conspiring to violate.
"Let us dispense with the defense's obfuscation and double-talk and say plainly what Don Blankenship did: He made a conscious, cold-blooded decision to gamble with the lives of the men and women who worked for him," Assistant U.S. Attorney Steve Ruby, the lead prosecutor in the six-year-long probe and prosecution over Blankenship's safety practices, wrote in the government's sentencing recommendation.
U.S. District Judge Irene C. Berger has scheduled Blankenship's sentencing hearing to start at 10 a.m. Wednesday at the Robert C. Byrd United States Courthouse in Charleston.
Blankenship, once among the most powerful industry and political figures in the region, faces up to a year in prison and a $250,000 fine and could - depending on rulings by Berger - face $28 million or more in criminal restitution payments that would take a significant chunk out of his personal fortune. The Mingo County native turned 66 in mid-March.
In December, a jury found Blankenship guilty of conspiring to willfully violate mandatory federal mine health and safety standards. Jurors deliberated for about 50 hours over 10 days after hearing 24 days of testimony that included 27 witnesses and more than 500 exhibits. Jury selection began on Oct. 1 and the trial stretched into early December.
Jurors also acquitted Blankenship of two felony counts that alleged Blankenship had orchestrated an effort to convince stockholders after the Upper Big Branch explosion that the company did not cut corners on safety, as part of an effort to halt a deep drop in Massey's stock prices and the CEO's personal wealth that had followed media reports about the disaster.
And jurors declined to convict Blankenship of conspiring to defraud the government by providing advance notice of U.S. Mine Safety and Health Administration inspections. That decision made the conspiracy charge rest on violating mine safety standards, a crime that remains a misdemeanor, despite repeated calls from mine safety advocates to upgrade its penalties by reclassifying it as a felony.
Lead defense lawyer Bill Taylor, in a court filing last week, argued that Berger should focus now not so much on the jury's guilty verdict as on the evidence the defense believes should have produced the opposite result at trial.
"This evidence demonstrates that, while the jury convicted Mr. Blankenship of a conspiracy to willfully violate regulatory standards on the basis of instructions permitting a conviction for agreeing to 'allow' such violations to continue and to 'recklessly disregard' the causes of such violations, the offense of conviction did not involve the brazen lawlessness described in the government's closing argument," Taylor wrote. "Nor did it involve any intent to jeopardize the safety of miners."
In filing their sentencing memorandum, Blankenship's defense team was clearly looking beyond this week's hearing in Charleston to their promised appeal to the 4th U.S. Circuit Court of Appeals in Richmond.
"We submit this memorandum as provided by the court's scheduling order," the defense wrote. "We recognize that the court will impose sentence upon our client ... we address the factors which we assume the court will consider in imposing sentence, but respectfully preserve our objections to this verdict, to trial errors, and to the numerous rulings on motions and legal issues already addressed.
"We intend to appeal," they told the judge in their March 28 filing.
As if to emphasize their point, defense lawyers three days later filed a motion asking that, should Berger sentence Blankenship to prison time, he be allowed to remain free on his $1 million bond until the appeal can be heard and decided.
But the defense lawyers are also asking Berger to look back, to re-examine evidence and argument from the trial, and conclude that the case against Blankenship doesn't warrant any jail time. They outlined a long list of evidence they say proves Blankenship was committed to mine safety.
For example, they argue that "not one witness" testified that Blankenship specifically instructed them to violate safety rules, and that Blankenship "initiated, encouraged and demanded efforts to comply with safety regulations, reduce citations and improve safety at Massey." They note evidence that the defense argued shows that Blankenship "demanded accountability" on safety issues, and that - despite testimony from miners who told jurors about terrible working conditions at Upper Big Branch - an anonymous survey of Massey employees "showed overwhelmingly" that miners believed the company wanted to operate safely.
"The court cannot and should not conclude that the jury accepted the government's broad arguments about the nature of the offense and Mr. Blankenship's role in it," Taylor wrote. "There was an enormous body of mitigating evidence offered at trial."
Blankenship's defense team also wants to re-argue the issue presented to jurors at trial about "the number and nature" of federal safety citations and orders issued at Upper Big Branch.
Defense lawyers say that data the government provided at trial - through witness testimony and exhibits - "is incomplete and highly misleading." At trial, the jury heard not just the government's witnesses, but also cross-examination of those witnesses by defense lawyers.
With its sentencing memo, the defense provided Berger with a new report from Kenneth Katen, a coal industry engineering consultant and adjunct professor in the Department of Mining Engineering at the University of Kentucky, in which Katen argues that the violation history at Upper Big Branch wasn't really so bad. The defense argues that data presented by Katen "rebuts and mitigates the government's version of the offense."
Katen was on the defense's witness list for the trial. But the defense opted not to put on any of its own witnesses, so the version of Upper Big Branch's violation history offered by Katen was never subject to cross-examination by the government.
In federal court sentencings, judges are limited by the maximum sentences allowed by the law.
But they are allowed broad discretion to consider a wide variety of information in deciding what sentence is appropriate.
Judges are supposed to weigh the "nature and circumstances of the offense" and the "characteristics of the defendant." They are also supposed to sentence in a manner that promotes "respect for the law," provides "just punishment for the offense" and protects the public from further crimes by the defendant. Sentences in federal court are supposed to "afford adequate deterrence to criminal conduct," but avoid "unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."
Prior to each sentencing, the U.S. Probation Office provides judges with a detailed report about the defendant, with in-depth information about their background and about the offense and other "relevant conduct." Pre-sentencing reports are filed under seal, and contain information the courts consider highly confidential. Details from the reports sometimes creep out in sentencing memos from both sides or in comments from judges at sentencing hearings.
Among other things, these reports propose for judges how the advisory U.S. Sentencing Guidelines apply to a particular defendant's case. Judges don't have to follow the guidelines, but they provide an important range for what sort of sentence should be considered in each case.
The guidelines start with a number that is called the "base offense level" for various types of crimes. Additions are made for various types of conduct, such as being the leader of a conspiracy. Subtractions are also made, for things like accepting responsibility for one's crimes. Then, the final "offense level" is compared to a federal sentencing table to obtain a recommended range for potential prison time.
In his sentencing memo to Berger, Ruby says that the base offense level for Blankenship is six. He says that four "levels" should be added for Blankenship's role as "a leader and organizer of the offense of conviction," two more levels added for his "abuse of a position of trust," and two more levels for "obstructing the administration of justice."
That adds up to a total offense level of 14, which would mean a recommended sentence under the guidelines of 15 to 21 months. Because the statutory maximum sentence is 12 months, and the lower end of that range is more than 12 months, the recommended sentence under the advisory guidelines becomes 12 months.
Defense lawyers, though, argue that the enhancements that bump the offense level from six to 14 should not apply. They are especially upset about the two-point enhancement for obstructing justice.
Jurors did not convict Blankenship of conspiracy to defraud MSHA by providing advance notice of federal safety inspections.
During sentencing, courts can consider all "relevant conduct," even in some instances actions that were at issue at trial, but were not part of the conviction. The standard of proof, though, is "preponderance of evidence," a lesser standard than the "reasonable doubt" standard required for a conviction.
Still, defense lawyers argue that the obstruction of justice sentence enhancement is "unsupported by the facts and the law." In his legal brief and in a letter to the probation office, Ruby argued that the proof was more than adequate.
The argument could have some importance for the ultimate sentencing decision.
Without the two-level enhancement for obstruction, Blankenship's total offense level would be 12. That would result in a recommended sentence of 10 to 16 months, allowing Berger to sentence Blankenship, for example, to 10 months and still be within the range recommended by the guidelines.
Under the law, Berger can also fine Blankenship a maximum of $250,000. Federal sentencing guidelines suggest a fine of between $4,000 and $40,000 in the appropriate range.
Ruby said that a fine within that guidelines range would "make a mockery of the law." Given that Blankenship is "immensely wealthy," Ruby wrote, the judge should mandate the maximum fine.
Defense lawyers did not specify what amount of fine they felt was appropriate, and Taylor did not respond to a request for comment on the matter.
In the prosecution's sentencing memo, Ruby started by reciting the death toll from a two-page list of more than a dozen major mining disasters: more than 360 miners killed at Monongah in 1907, nearly 120 killed in Benwood in 1924, 56 killed at Osage in 1942, 78 dead at Farmington in 1968.
"These catastrophes, terrible as they are, represent only a small fraction of the toll exacted by mining deaths," Ruby wrote. "Since 1900, the earliest year that records are readily available, more than 100,000 coal miners have been killed in America's mines."
He argued that "the great majority of this loss of life" could have been prevented "by following well-known principles of mine safety."
"This history matters," Ruby wrote. "It is a stark reminder that the laws on mine safety are not just words on paper. They are the bitter fruit of decades of tragedy."
While Blankenship was not charged with nor convicted of causing the Upper Big Branch disaster, Ruby noted that the very kinds of safety violations that Blankenship was convicted of conspiring to commit have been known for decades to be the root of deadly underground blasts. The indictment had alleged that Blankenship conspired to violate safety laws at Upper Big Branch during the time period from Jan. 1, 2008, through April 9, 2010.
"We have known for a very long time what makes coal mines explode," Ruby wrote. "We have known for a very long time how to prevent it."
Ruby wrote that Blankenship "knew full well the awful risks, dramatized again and again in ghastly fashion over the years, that he was taking by flouting the mine safety laws at Upper Big Branch.
"There was no mystery about what poor ventilation meant: buildups of methane that would ignite with the slightest spark," he wrote. "Yet UBB's miners were left pleading for air.
"There was no question what accumulations of coal dust meant if not properly treated: a powder keg 1,000 feet below the surface, primed to blow at any time," he wrote. "Yet black dust pervaded the mine, a calamity in the making.
"There was nothing the least bit hidden or mysterious about the dangers of how defendant chose to run UBB," Ruby wrote. "They manifested themselves openly, obviously, to anyone with the most basic knowledge of coal mining, and certainly to defendant."
Ruby compares the Blankenship case to other, perhaps more common crimes prosecuted and punished in the federal court system.
"Which is worse: A poor, uneducated young man who sells drugs because he sees no other opportunity, or a multimillionaire executive, at the pinnacle of his power, who decides to subject his workers to a daily game of Russian roulette?" Ruby wrote. "Which is worse: That young man carrying a gun during a single drug deal - a crime that will earn him a five-year mandatory minimum prison sentence - or a CEO jeopardizing the lives of hundreds, day after day? Which is worse: Stealing money or trampling on the laws that protect human life? In each case, to ask the question is to answer it."
Ruby concludes that "under any fair assessment only a sentence of many years in prison" could truly reflect the seriousness of Blankenship's offense. But, Ruby notes, federal laws "make such a sentence impossible here," allowing a maximum of one year in prison.
A year in prison is "woefully inadequate" for Blankenship, Ruby wrote, "but it is the best the court can do."
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.