Massey Energy CEO Don Blankenship's defense lawyers were not allowed a second chance to question former Massey official and key prosecution witness Chris Blanchard because U.S. District Judge Irene Berger concluded they had no new issues to ask Blanchard about, according to a previously unpublished ruling made during a telephone hearing in the midst of Blankenship's trial.
"Again, there's no new material," Berger said during the telephonic hearing, which was not open to the press or the public.
The hearing was held on Nov. 2, when the jury had been given the day off. A transcript of the hearing was only recently made available in U.S. District Court in Charleston.
Blankenship defense lawyers have made it clear in recent court documents that Berger's refusal to allow re-cross-examination of Blanchard is among the arguments they will make in appealing Blankenship's conviction to the 4th U.S. Circuit Court of Appeals.
Currently, Blankenship is scheduled to report to prison on May 12 to begin serving his one-year sentence for conspiring to violate mine safety laws at Massey's Upper Big Branch Mine, where 29 workers died in an April 2010 explosion.
The former Massey CEO is awaiting a ruling from the 4th Circuit on whether he can remain free on bond while his appeal is decided. The ruling over re-cross-examination of Blanchard is one of four appeal issues that defense lawyers argue are significant enough to warrant Blankenship's jail sentence being postponed until the 4th Circuit review is concluded.
During the two-month trial late last year, Blanchard - president of the Massey unit that operated Upper Big Branch - testified against Blankenship under a grant of immunity from prosecutors. While Blanchard was helpful to the government, he also provided testimony that helped the defense during a marathon, week-long cross-examination by lead Blankenship lawyer Bill Taylor.
Berger had settled on a rule for the trial that allowed the opposing side to cross-examine witnesses, and then allowed the party offering those witnesses to perform redirect examination. The judge had said that she would not allow the opposing side to then re-cross-examine witnesses. Generally, federal court rules do not require judges to allow re-cross-examination unless new material was introduced during cross-examination.
But on Friday, Oct. 30, after Assistant U.S. Attorney Steve Ruby did his redirect questioning of Blanchard, the defense wanted a chance to question him again. Defense lawyers wanted to ask Blanchard about grand jury testimony that Ruby confronted Blanchard with and about Massey safety violations that Ruby introduced as evidence during redirect examination.
Berger held a brief hearing in open court on the defense request, Blankenship's lawyers filed a letter with the court further explaining their reasoning and prosecutors submitted their own legal brief opposing any re-cross-examination of Blanchard. There was no court scheduled for the following Monday. Berger said in open court that she would notify the parties by email on Monday or Tuesday of her ruling.
When court resumed in public on Tuesday, the judge did not mention the Blanchard issue. Instead, she simply told the government to call its next witness and the trial resumed.
The newly released transcript shows that Berger convened a telephonic hearing with the parties the day before, on Monday, to announce and explain her ruling on the Blanchard recross examination.
Berger said during the hearing that she reviewed transcripts of Blanchard's testimony and that "the redirect was well within the scope of direct and that there are no new matters necessitating re-cross-examination" by the defense.
For example, regarding the citations that Ruby introduced as evidence during redirect, Berger ruled that Ruby had used those not to prove that the violations occurred, but to show that the types of violations occurring at Upper Big Branch were preventable and serious. The defense had questioned Blanchard about its own set of violations - regarding issues like the condition of bathrooms at the mine and repairs to a barbecue grill located on the mine parking lot - in an effort to minimize the seriousness of some of the citations received at Upper Big Branch. Ruby introduced other types of citations - for ventilation problems, for instance - and had Blanchard explain why they were serious.
Berger said that, "there was nothing beyond the scope, given the purpose of the questions and the testimony, that would necessitate recross or which would prejudice Mr. Blankenship in not permitting recross."
The judge's ruling on the Blanchard issue is among a variety of details about the Blankenship trial only now emerging into public view, with the filing at the courthouse of most of the trial's official transcripts. The transcripts have previously revealed an investigation into contact between a defense consultant and a key witness for the prosecution and new details about the process Berger used to select a jury for the trial.
Along with the Blanchard ruling, the transcripts for the first time disclose dozens of rulings that Berger made during private discussions with the lawyers - called bench conferences - about what evidence could and could not be presented to the jury. Typically, bench conferences are used during jury trials to allow judges and lawyers to sort out objections to questions and evidence without the jury hearing about matters that aren't going to be allowed to be introduced in the case. Having the lawyers come to the judge's bench for the private discussions avoids having jurors going back and forth from the courtroom over and over during the course of the day.
For example, a transcript of a Nov. 13 bench conference includes Berger's ruling that prohibited the prosecution from mentioning previous guilty pleas by Massey subsidiaries Aracoma Coal and White Buck Coal in safety cases or a safety lawsuit against Massey by the company's shareholders.
"I find, counsel, that any probative value that they would have, even the shareholder derivative action and the nature of it, is outweighed by the risk of unfair prejudice to the defendant," Berger ruled.
Another transcript outlines Berger's ruling to not allow the defense to cross-examine government witness David Hughart, a former Massey official, about a drug arrest by local police that happened during the time federal prosecutors were negotiating a plea agreement with him. Defense lawyer Blair Brown had argued that the arrest could have played a role in convincing Hughart to cooperate with federal authorities. Berger refused to allow the questions because the arrest was made by local police and Hughart had not been convicted, the transcript shows.
But not all bench conference transcripts have been made public.
For instance, on Nov. 13, defense lawyers were questioning FBI Special Agent Jim Lafferty in open court, but with the jury not in the room. They wanted to ask him about an allegation that some U.S. Mine Safety and Health Administration documents about the Upper Big Branch Mine could have been destroyed.
When Lafferty left the stand, and the jury was still not in the room, defense lawyer Eric Delinsky said he had a matter for the judge that was "under seal" and should be handled at the bench. A short bench conference was held, and a transcript of that discussion remains under seal. No reason has been given.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702
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