By Ron Gregory
CHARLESTON — All sides in the trial of former Massey Energy Chief Executive Officer Don Blankenship found reason to claim victory in the wake of a split jury verdict.
Southern West Virginia U.S. Attorney Booth Goodwin said at a subsequent press conference that he is pleased with a guilty verdict against Blankenship on a misdemeanor conspiracy charge.
“This is a landmark day for the safety of coal miners, and not just coal miners, but all working men and women,” Goodwin said. “This is the first time that I am aware of that the chief executive officer of a major corporation has been convicted of a workplace safety crime. It is my hope that this case will make a difference throughout this country.”
Although Goodwin sought to assume a best face forward, the fact is that Blankenship went to trial charged with three felonies that, if convicted, would have led to his spending the remainder of his life in prison. The most jail time the former CEO could get now is one year.
Those familiar with Federal sentencing guidelines say Blankenship’s conviction, if upheld, would likely lead to a probation period and fine only.
While expressing relief that his client was found not guilty of two other felony charges and had the conspiracy charge reduced to a misdemeanor, Blankenship’s lead attorney, Bill Taylor, said even the misdemeanor will be appealed.”
Speaking briefly with reporters outside the Byrd Federal Courthouse in downtown Charleston, Taylor said, “we plan to relax, enjoy the holidays and then get right to work on an appeal.” He added, “And there are many grounds for an appeal” to the Fourth Circuit in Richmond.
In exclusive comments to the Corridor Chronicle, Blankenship appeared relaxed and confident after the verdict was announced. While he did not claim victory, the former CEO said he agreed with the defense team that “it’s time to spend some time with family and friends for the holidays.”
Taylor agreed with a reporter during the brief meeting in front of the courthouse that the jury was “coersed” into making a decision. He said that will part of his appeal to Richmond. He cited other possible grounds for appeal, but added “they are just too, too numerous to mention. I’ve never been in a situation like this where I had so much confidence a verdict will be overturned by the appellate court.”
Taylor was stern with one newspaper reporter who asked what Taylor thought might happen if there was a retrial. “Retrial?” he said increduously. “There can be no retrial. My client was found not guilty. We are just appealing one misdemeanor verdict on grounds of trial errors. There will be no retrials.”
At the heart of the trial, though not directly a part of it, was the Upper Big Branch mine disaster that left 29 coal miners dead. Members of the miners families and friends have long claimed that Blankenship pushed production ahead of safety, thus leading to the explosion that killed the miners. Several of those family members sat through the month-long testimony in the case and had been on hand throughout jury deliberations.
One, who has become more or less the media spokesperson for all family members, Judy Peterson reacted to the verdict with measured comments. “Just hearing the word guilty; to me he didn’t matter what they charged him to be guilty of,” Peterson told reporters. “I just wanted to hear the words. You are guilty, my friend.” She said even the original three felony charges “were meaningless to me” because they did not directly charge the former CEO with murder.
Sherry Keane-Depoy, a different family member related to UBB, said, “I wanted him to rot in hell to be honest with you. I was hoping guilty on all three counts because we know that he is.”
United Mine Workers of American International President Cecil Roberts claimed “a measure of justice has been served” through Blankenship’s conviction of the minor charge.
Public officials and political leaders were quick to jump on the verdict in support of their individual agendas. The state Democrat Party demanded that Republican State Senate President and gubernatorial candidate for 2016, Bill Cole, rid himself of political operatives associated with Blankenship.
In a sharply-worded press release, party official Brittni McGuire asked “now that … Blankenship has been convicted, will Senator Cole part ways with Blankenship’s money and top political advisers?” She goes on to ask, “Will Senator Cole sever ties with the Blankenship political apparatus and fire Greg Thomas?” Thomas, who McGuire calls “Blankenship’s favorite political consultant” has been involved in Cole’s campaign for Governor. Thomas also runs a super-PAC that is supporting Cole’s candidacy, she said.
McGuire cites a newspaper report that the state Republican party received $100,000 from Blankenship. “Will Cole swear off any future financial support from Don Blankenship and demand the independent expenditures supporting his campaign reject Blankenship’s money?” she asks. “With Blankenship convicted, the people of West Virginia deserve answers.”
Democrat State Chair Belinda Biafore echoed McGuire’s words adding, “never should profit be put over people. Never should it be okay to put the lives of hardworking West Virginians at risk to benefit corporations and CEOs.” Biafore said Republican legislators, such as Cole, spent their first legislative session as a majority in 80 years by pushing legislation that “constantly put profit over people.” She said they passed legislation “that specifically rolled back mine safety laws in order to gain more money.”
House of Delegates Minority Whip Mike Caputo, a Marion County Democrat, said he was “disappointed” that Blankenship was not found guilty on all felony counts. Still, he said, the sole conviction “provides definite consequences for his (Blankenship’s) actions.”
A post-trial analysis of the jury deliberations seems to point to a media group that was essentially incorrect in reading either the faces or minds of the jurors. Most Charleston media representatives, who were likely anti-Blankenship to begin with, commented throughout deliberations about “the one holdout for not guilty,” etc. It is apparent from the eventual verdict that there was always more than one juror holding the view that Blankenship was not guilty of anything.
One comment from a single juror after the verdict was announced concluded that there were always at least “three or four” jurors who believed in Blankenship’s innocence. Twice, the jury informed Federal Judge Irene Berger that they were deadlocked and twice she returned them to their jury room for further deliberations.
The defense moved five times for mistrials based on the jury’s inability to reach a timely decision, but Berger denied that motions all five times. That is one of the grounds Taylor will likely use to argue that Berger “coersed” the jury into reaching some kind of verdict.
The jury form provided in this case permitted the jurors to strike parts of each felony count. This opened the door for the misdemeanor conviction. It is important to note that the form was approved by both the prosecution and defense.
When jurors eliminated a part of count one, the conspiracy charge, they were effectively reducing the conviction to a misdemeanor with no more than one-year jail time. Finding the defendant not-guilty on the other charges indicates that by the time the jury finally reached a conclusion, Blankenship was closer to being cleared of all charges than being convicted of any. That means, apparently, that those arguing for not guilty persuaded another eight or nine to their point of view during deliberations. Coming to a unanimous decision, of course, is one of the things Berger was urging them to do by continuing their discussions.
The biggest loser in the Blankenship case may well be the Charleston Gazette-Mail, which relentlessly crusaded for Blankenship’s arrest and conviction for years. While the sole Charleston daily paper attempted to take refuge in a screaming “Guilty” headline and an editorial with the same title, it is clear from the comments of UBB family members that nobody considers the outcome a major defeat for the ex-Massey CEO.
In fact, Gazette-Mail representatives looked gloomy as they learned of the verdict. At first, there was some excitement among them and UBB family members at the first “guilty” verdict but that turned to downcast spirits when the other two were declared “not guilty.”
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