The Don Blankenship criminal case is far from over - at least if his defense lawyers have anything to say about it. They've promised a strong appeal, and said they are confident they'll win.
Blankenship's lawyers wasted no time moving on the appeal of the former Massey Energy CEO's conviction, filing their one-page formal notice of appeal last Thursday, the day after U.S. District Judge Irene Berger sentenced him to serve the maximum of one year in prison and pay the maximum fine of $250,000. A jury concluded that Blankenship spent more than two years conspiring to violate federal mine safety and health standards at Massey's Upper Big Branch Mine, where 29 miners died in an April 2010 explosion.
"We expect that the court of appeals will tell us ultimately that the government did not charge a crime and did not prove a crime in this case," Bill Taylor, Blankenship's lead defense lawyer, told Berger at the start of last week's sentencing hearing in Charleston.
Taylor and his team provided significant hints about their appeal strategy in a court filing that unsuccessfully asked Berger to allow Blankenship to remain free on his $1 million bail pending a ruling on that appeal. They outlined a long list of rulings by Berger that they plan to challenge - from her refusal to throw out the indictment itself as not legally sufficient and not allowing Taylor a second chance at cross-examining a key government witness, former Blankenship lieutenant Chris Blanchard, to the key parts of the judge's instructions the jury that defined the type of violations covered by the charges and a brief discussion of how jurors should define "reasonable doubt."
As confident as Blankenship's team sounds in their public pronouncements, legal experts who have followed the case aren't at all convinced that the case is strong enough that the 4th U.S. Circuit Court of Appeals to overturn the conviction.
"Challenges to the sufficiency of the evidence are rarely successful on appeal, and it seems particularly unlikely that Blankenship would be able to secure reversal based on the strength of the evidence against him, since the Justice Department introduced substantial evidence that Blankenship controlled operations at Massey's mines," said David Uhlmann, a former top justice official who now teaches law at the University of Michigan and studies white-collar prosecutions.
Prosecutors have dismissed Blankenship's appeal arguments as not especially substantial. Assistant U.S. Attorney Steve Ruby said in a court filing that most of them involve "garden-variety trial rulings," that might just sound more significant than they are, given "long, table-thumping pleadings" filed by Blankenship's "platoon of high-powered lawyers.
Some of Blankenship's appeal arguments, Ruby noted, concerned "routine rulings" on evidence or trial management, such as excluding a video the defense said showed numerous of Blankenship's top officials describing the company's news safety plan or allowing the prosecution to use federal safety violations as evidence without requiring government inspectors to appear for cross-examination about each and every one. Ruby said such rulings would be reviewed by the appeals court "under the highly deferential abuse-of-discretion standard."
Blankenship himself continues to maintain his innocence. He told Berger during last week's sentencing hearing that he believes she knows that there was "no direct evidence that I committed a crime."
"In any event, you can be 100 percent sure that I did not," Blankenship said. "It's important to me that everyone knows that I am not guilty of a crime."
Details of how the appeal will play out procedurally still are being decided. The defense also has promised to ask the 4th Circuit to overturn Berger's refusal to stay Blankenship's conviction so that he can avoid serving most of his one-year sentence before the appeal is heard and decided.
The case heads for the 4th Circuit, based in Richmond, Virginia, in a courthouse not far from where Massey used to have its corporate headquarters. The 4th Circuit was once considered the most conservative appeals court in the country, but that reputation has changed sharply, as a series of appointments by President Barack Obama have moved the court to the left.
Appeals cases go first to a three-judge panel and can, in some circumstances, later be reheard by the full court.
It's not clear which three judges will hear Blankenship's appeal. But the case has been to the 4th Circuit twice already. In one ruling, the 4th Circuit granted a request by media organizations and threw out a broad gag order Berger had issued the day after the indictment. In another - made without even asking prosecutors to respond - the appeals court refused to overrule Berger's decision not to dismiss the case against Blankenship as a "selective and vindictive" prosecution.
The appeal of Blankenship's conviction could be heard by the same panel of judges that heard those two previous matters. Those judges were Democratic appointees James Wynn and Andrew Davis, and Roger Gregory, who was a Clinton recess appointment who was then reappointed by President George W. Bush.
Another consideration on appeal is that Berger denied a request from Alpha Natural Resources for $28 million in restitution from Blankenship for its costs in cooperating with the federal investigation after it purchased Massey in June 2011. Legal experts say that a $28 million restitution order would have guaranteed much closer scrutiny from an appeals court than a misdemeanor conviction with a one-year prison sentence.
Defense lawyers, though, argue that they are more likely to prevail on appeal because of what they insist was the "novel" nature of the prosecution's legal theories.
"The court had to address both novel questions and familiar questions in a novel context," the defense said. "The potential that a court of appeals will answer questions differently from a trial court is always greater when the path has not been clearly marked."
One major area of attack for the defense lawyers on appeal is their argument that the indictment charged Blankenship of a conspiracy to violate safety standards, without stating the specific safety violations at issue.
Prosecutors say that this argument misses the point about the type of conspiracy the case involved.
"The grand jury charged defendant not with conspiring to violate some enumerated set of selected mine safety standards, but rather a broader and more pernicious conspiracy to violate whatever mine safety standards were expedient to violate," Ruby wrote in a court filing. "Defendant's position would produce an absurd result. It would permit prosecution of narrowly defined conspiracies that single out specific safety rules to violate, but make it impossible to charge wider-ranging, violate-as-necessary type conspiracies like the one in this case."
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.