Appeals court upholds conviction of Blankenship

January 20, 2017

A federal appeals court has affirmed the conviction of former Massey Energy chief executive officer Don Blankenship in connection with the explosion at the Upper Big Branch Mine in West Virginia, the deadliest U.S. mine disaster in four decades.

The Charleston Gazette-Mail reported the 4th U.S. Circuit Court of Appeals handed down the opinion, saying it found no reversible errors in trial rulings.

The 4th U.S. Circuit Court of Appeals upheld a series of trial rulings by U.S. District Judge Irene Berger and said the ability of prosecutors to go after mining company executives whose companies repeatedly ignore longstanding safety requirements is a key part of federal protections for mine workers.

Blankenship's attorneys had argued that jury instructions made it too easy to conclude that he willfully violated safety rules at West Virginia's Upper Big Branch mine before the 2010 explosion that killed 29 men.

In a 34-page decision, a three-judge panel of the 4th Circuit soundly rejected the argument and that Berger wrongly denied the defense the chance for a second cross examination of a major government witness and that the trial judge incorrectly instructed the jury about the prosecution’s burden of proof.

“After careful review, we conclude the district court committed no reversible error,” wrote Judge James Wynn. “Accordingly, we affirm.”

The 4th Circuit also flatly turned down Blankenship’s appeal argument that Berger was wrong to instruct the jury that Blankenship’s “reckless disregard” of federal mine safety and health standards amounted to criminal willfulness needed for a conviction.

Wynn explained in the opinion that Congress, in passing federal mine safety laws in 1969 and 1977 had intended to impose enhanced penalties — criminal liability for individual mine operators and company executives — precisely because mine operators could still “find it cheaper to pay minimal civil penalties than to make the capital investments necessary to adequately abate unsafe or unhealthy conditions, and there is still no means by which the government can bring habitual and chronic violators of the law into compliance.”

“Accordingly, Congress saw criminal penalties as a mechanism to punish ‘habitual’ and ‘chronic’ violators that choose to pay fines rather than remedy safety violations,” Wynn wrote. “Put differently, a ‘long history of repeated failures, warnings and explanations of the significance of the failures, combined with knowledge of the legal obligations, readily amounts to willfulness.’ ”

While Blankenship was not specifically charged with causing the explosion that killed the miners at Upper Big Branch, the 4th Circuit ruling noted that, in 2009, the U.S. Mine Safety and Health Administration identified 549 violations at the Raleigh County mine and, in the 15 months leading to the April 2010 disaster, Upper Big Branch had received the third-most serious safety violations of any mine in the United States. 

He was convicted in 2015 of a misdemeanor charge of conspiring to willfully violate safety standards and sentenced to one year in prison.
Blankenship reported to a California federal prison May 12 to begin serving the sentence.



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