- Judge will decide whether tapes can be played for panel
- Blankenship installed secret recording system as Massey CEO
U.S. prosecutors say it was Donald Blankenship’s domineering control of Massey Energy Co. and disregard for safety that set the stage for a 2010 explosion that killed 29 miners.
On Friday, jurors at his trial may get an earful of examples of his management style from secret recordings made by Blankenship while he was chief executive officer.
A judge is set to decide whether prosecutors can play 21 tapes of Blankenship conversing with other Massey officials in their bid to prove that he plotted to violate safety laws and impede mine inspections. They accuse him of then lying to investors about the company’s compliance with regulations.
Blankenship, 65, can be heard on one tape lamenting that a confidential memo outlining safety problems at Massey’s Upper Big Branch mine, site of the 2010 blast, would be “a terrible document” to be turned over in litigation, prosecutors said earlier.
U.S. District Judge Irene Berger in Charleston, West Virginia, said Thursday that she would review transcripts of tapes obtained by the government to decide whether jurors can hear them. Earlier in the day, a former Massey mine dispatcher testified she was ordered to provide alerts about surprise mine inspections.
“These tapes will offer jurors a real-time look into the inner workings of Mr. Blankenship and are likely to provide evidence that is far more powerful than the testimony of any witness,” said Robert Mintz, a white-collar criminal defense lawyer in New Jersey who isn’t involved in the case.
“Tapes are the gold-standard of evidence for federal prosecutors because it allows juries to witness criminal conduct as it unfolds,” Mintz said in an interview.
Blankenship’s lawyers argued Thursday that the government hadn’t done enough to authenticate the tapes, which were turned over by Alpha Natural Resources Inc. The company discovered the recordings after it acquired Massey in 2011 for $7.1 billion, according to court filings.
Prosecutors told Berger the tapes buttress their allegations that Blankenship put coal production above safety at Upper Big Branch because his compensation was tied to output.
The tapes may also contain evidence that backs up Blankenship’s arguments that he never told anyone to ignore safety rules or give advance warning about surprise inspections, Pat McGinley, a West Virginia University law professor, said in an interview.
“It will be up to the jury to decide what the tapes show about his state of mind,” McGinley said.
In a recording used as evidence in another case, Blankenship asked whether “we’d blow ourselves up” without inspections by the Mine Safety and Health Administration. He routinely criticized the agency in public for setting up regulatory roadblocks to coal production.
“I know MSHA is bad, but I tell you what, we do some dumb things,” Blankenship said, according to testimony quoting from a tape in a Delaware court case over the executive’s legal bills. “I don’t know what we’d do if we didn’t have them.”
The year before the fatal explosion at Upper Big Branch, Blankenship urged subordinates in a recorded conversation to crack down on safety violations because “I don’t want to go to 100 funerals,” according to testimony in the Delaware case.
Bobbie Pauley, a miner and dispatcher who worked at Massey until 2011, testified Thursday that executives ordered her to give advanced warnings of surprise mine inspections. A guard would call as soon as an inspector arrived on the property and she immediately paged miners underground, Pauley said.
When Massey miners were tipped off about inspections they would immediately “make sure you were running legal and doing the things you were supposed to do,” Pauley told jurors.
Neglected ventilation systems would be turned on and rock dust would be spread to cut the chances of an explosion, tasks Massey employees spurned because of management’s concerns that it would slow production, Pauley said.
Under cross-examination by Blankenship’s lawyers, Pauley acknowledged that while it was “standard procedure” to alert miners of imminent inspections, Blankenship never personally ordered her to do so.
“I didn’t know it was illegal” to give such warnings, she said. Miners also were warned when top executives were heading down into the mine, she said.
Pauley said supervisors ignored her complaints about ventilation problems and unstable roofs in some sections of the mine. At some parts of the facility “the air just felt smothery,” she testified.
Berger on Wednesday rejected Blankenship’s request to move the trial to the northern part of the state or neighboring Maryland because of a continuing wave of media coverage about his case and threats made against the former CEO in social-media postings.
The judge ruled the pretrial publicity had not biased jurors in the southern part of the state against Blankenship, according to court filings.
The case is U.S. v. Blankenship, 14-cr-00244, U.S. District Court, Southern District of West Virginia (Charleston).