Mimesis Law
25 February 2017

Massey CEO Mostly Acquitted Thanks to Somewhat Common Defense Strategy

Dec. 4, 2015 (Mimesis Law) I’m not sure what the folks at the New York Times were thinking when they chose the title “Former Massey Energy C.E.O. Guilty in Deadly Coal Mine Blast” for an article about the outcome of coal executive Donald Blankenship’s federal criminal trial. While not totally untrue, it’s hardly the best explanation of what really happened:

The verdict reached by a federal jury here made Mr. Blankenship, 65, the most prominent American coal executive ever to be convicted of a charge connected to the deaths of miners. He had been accused of conspiring to violate mine safety regulations, as well as of deceiving investors and regulators; prosecutors secured a conviction on only one of the three charges. Mr. Blankenship was acquitted of making false statements and securities fraud. He faces a maximum of one year in prison on the misdemeanor conspiracy charge.

But the verdict was, by most measures, a defeat for the Justice Department, which had pursued a prosecution that could have led to a 30-year prison term. A lawyer for Mr. Blankenship, a former chief executive of the Massey Energy Company, said he intended to appeal the verdict. The trial began with jury selection on Oct. 1 and jurors started deliberations on Nov. 17 after the defense rested its case without presenting any witnesses.

Sure, the jury found Blankenship guilty, but it was of the least serious count. His defense was two for three, and more importantly, they beat the big stuff. The headline makes it seem like it was some sort of victory for the government. In reality, the opposite is more likely true, and the article even acknowledges that. Unfortunately, people would obviously rather read about some fat cat CEO getting convicted for miners’ deaths than hear about a jury fairly considering the evidence against a criminal defendant in a complicated conspiracy case and carefully deciding that the government had met its burden of proof on one count but not on the other two. The latter makes for an awfully boring headline.

Similarly, the article seems to go out of its way to make the fact the defense called no witnesses a bigger deal than it really is, mentioning it not once, but twice:

“We don’t convict people in this country on the basis of maybes,” said Mr. Taylor, who led a defense team that, in a risky legal strategy, chose not to call any witnesses. “We don’t convict them of crimes because they’re rich or rude or they’re tough.”

That snippet cited a previous article that focused even more on the defense’s decision to call no witnesses:

Lawyers for Donald L. Blankenship, the former coal executive accused of conspiring to violate federal safety standards before 29 people were killed at the Upper Big Branch mine in West Virginia, rested their case on Monday without calling any witnesses.

The defense’s strategy, which emerged Monday morning in Federal District Court in Charleston, surprised many legal experts who had been monitoring the proceedings. Mr. Blankenship’s lawyers had been expected to summon witness after witness in their effort to undercut the case, which jurors have heard for more than a month. Closing arguments are expected to begin Tuesday.

“It’s clear that the defense team thinks that they inflicted enough body blows in the government’s case to justify resting now,” said Michael B. Hissam, a former federal prosecutor who worked on the Upper Big Branch investigation and now, as a lawyer in private practice, represents coal-industry clients. “This is an unusual strategy, though. The general rule of thumb is that if you feel strongly about your defense, you put your defense case on.”

Mr. Hissam, who has attended much of the trial, said Mr. Blankenship’s lawyers had signaled that they would present a deep, wide-ranging defense. One prospective witness, he said, was waiting outside the courtroom.

I’d love to know who these “many legal experts” are. I seriously doubt they’re practicing criminal defense lawyers.

Things might be different in West Virginia, or perhaps in New York or wherever the article’s author lives if not there, but in the right case, not presenting witnesses isn’t a risky legal strategy at all. Want a risky strategy? Try calling your client to testify. In a case where the defense is a good argument that the facts as alleged don’t comprise the offense in question, or simply that the prosecution hasn’t met its burden, calling no witnesses is probably often the best move.

Accordingly, not calling witnesses isn’t so unusual either. I’d say that the fact the prosecution bears the burden of proof alone should make it a fairly common thing. If it isn’t the most common defense, “prove it” has to be up there. Every defense isn’t some sort of factual contention. Often, the facts are undisputed or close to it. Without the benefit of things like a motion for summary judgment or a motion to dismiss for failure to state a claim, which are par for the course in civil matters but not available to criminal defendants, criminal cases often go to trial where the parties are simply arguing the application of the law to largely stipulated facts.

The supposed “rule of thumb” that “if you feel strongly about your defense, you put your defense case on” makes my head hurt. I can’t even wrap my head around it, honestly. Considering the facts of Blankenship’s case as laid out in the first article, it makes even less sense:

Jurors heard descriptions of Mr. Blankenship’s fortune — he was paid nearly $18 million in 2009, the last full year before the explosion at the West Virginia mine just about everyone called “U.B.B.” — and they saw documents that portrayed him as a manager with intricate knowledge of the operations of his multibillion-dollar company. They learned about his demands for production reports from Upper Big Branch every 30 minutes, even on weekends, and they heard him, on audio recordings, chastising and lecturing subordinates.

Perhaps most important, they heard dueling interpretations of an array of memos and programs about safety at Massey, a company that had thousands of safety citations. The government insisted that Mr. Blankenship and Massey had embarked on little more than a safety charade.

“Every time you hear ‘hazard elimination,’ you should be thinking ‘propaganda,’” the United States attorney, R. Booth Goodwin II, told jurors in his closing argument. “Every time you hear ‘Massey,’ you should be thinking: ‘defendant’s criminal conspiracy to break the law and run coal.’”

But Mr. Blankenship’s lawyers said that he had urged lower-ranking executives to reduce violations and that he had approved investments and purchases that improved safety in a dangerous industry. Moreover, they said that Massey’s safety record was not nearly as grave as prosecutors made it seem.

Based on that, it seems there might not have been much to the case against Blankenship at all. He was really well paid and a hands on manager, if not perhaps a little too demanding. There were a bunch of memos and programs that the parties interpreted differently, and the company received a bunch of safety citations. However, through the government’s witnesses, the defense was apparently able to admit evidence about Blankenship urging others to reduce violations and approving investments and purchases that improved safety.

Let’s say that’s it. What else does Blankenship really need to present? If the charge includes as an element that he did something or had knowledge of something and the prosecution didn’t present sufficient evidence proving that, how will a bunch of witnesses help? The judge certainly isn’t going to let Blankenship call witnesses to testify that he told them after the fact that he had no clue about the safety problems. Is a guy like Blankenship really going to parade one witness after another saying he wasn’t hands on or well paid or didn’t send the memos or create the programs in question?

That rule of thumb about putting on a defense seems like the sort of thing an inexperienced prosecutor would think. They put on their cases, after all. If they don’t, they lose. A defense isn’t necessarily something affirmative, though. Often, you don’t “put it on” at all, instead just poking holes in the prosecution’s case or establishing a few key tidbits that turn one prosecution witness after another into defense witnesses. A solid defense is an approach to the case as a whole, and presenting witnesses is just one little part that may or may not apply.

I can see the draw of telling a story about a coal executive being convicted for the deaths of miners. I can see the draw of telling a story about some high-paid lawyers employing a risky defense in a high profile case. You wouldn’t know it from a cursory reading of that first New York Times article, but Blankenship’s story is neither of those.

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  • Let No Blankenship Get Away | Simple Justice
    16 December 2015 at 6:37 am - Reply

    […] One of the few issues in criminal law that is close to universally condemned is over-criminalization, that there are too many laws, too many crimes.  And yet, when someone hated walks away from conviction, the same voices that decry the problem call for more laws because they can’t stand the fact that one got away.  Massey Energy CEO Don Blankenship was hated. Don Blankenship walked away. […]

  • Barry Cadden: A Powerful Story of Greed
    11 January 2017 at 8:56 am - Reply

    […] of bringing a corrupt corporate bigwig to justice. Whether they’re trying to stick it to a CEO in the coal business who they thought disregarded safety rules or getting a life sentence for a CEO in the peanut […]

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