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Prosecutors: Former Massey coal exec's fairness arguments invalid

| Sunday, March 8, 2015, 11:30 p.m.
Chairman and CEO of Massey Energy Company Don L. Blankenship addresses the safety concerns of the Upper Big Branch Mine, takes questions from the press and announces Massey's plans for providing care for the families of miners who died in the mine at a press conference at the Charleston Convention Center, Monday, April 26, 2010. (Andrew Russell | Tribune-Review)
Chairman and CEO of Massey Energy Company Don L. Blankenship addresses the safety concerns of the Upper Big Branch Mine, takes questions from the press and announces Massey's plans for providing care for the families of miners who died in the mine at a press conference at the Charleston Convention Center, Monday, April 26, 2010. (Andrew Russell | Tribune-Review)
Former chairman and CEO of Massey Energy Co. Don Blankenship.
Getty Images
Former chairman and CEO of Massey Energy Co. Don Blankenship.

If Boston Marathon bomber Dzhokhar Tsarnaev can get a fair trial in Boston, a former coal executive connected to a fatal mine explosion can get a fair trial in Beckley, W.Va., federal prosecutors say.

The government's new filing in the criminal prosecution of former Massey Energy Co. President Don Blankenship, 64, is the latest salvo in a heated pretrial battle.

A federal grand jury in November indicted Blankenship, alleging he conspired to violate safety and health standards at the Upper Big Branch Mine in Raleigh County before an April 5, 2010, explosion killed 29 miners. He also is charged with lying to federal financial regulators about safety measures.

Blankenship contends pretrial publicity will make it impossible to find enough impartial jurors unless the trial is moved. The government disagrees and Friday cited a federal judge's denial of a similar motion in the Tsarnaev case to bolster its position.

“The media coverage in Tsarnaev was more intense and negative than any coverage that defendant alleges occurred here,” Assistant U.S. Attorney Steven Ruby said in court papers.

Lawyers for Blankenship and a spokeswoman for Booth Goodwin, the U.S. Attorney for the Southern District of West Virginia, could not be reached for comment.

U.S. District Judge Irene Berger issued a gag order the day after the federal grand jury's indictment that has kept most of the skirmishing in the case under wraps.

The 4th U.S. Circuit Court of Appeals last week lifted the Beckley federal judge's order, providing the first public access to most of the case documents.

They show Blankenship is challenging nearly everything in the case, including Berger's refusal to reschedule the trial for sometime in January 2016. He filed a new request to delay the trial on Feb. 17.

If Berger refuses to delay the trial and a jury convicts Blankenship, he's unlikely to win an appeal based on the judge's refusal to grant a continuance, two legal experts said.

“Appellate courts very, very rarely overturn convictions for failure to grant a continuance unless the decision was completely arbitrary,” said Wes Oliver, a professor at Duquesne University Law School.

In the Jerry Sandusky sex abuse prosecution, for example, the Superior Court upheld the judge's refusal to delay the trial, even though the state did not oppose his motion for a continuance, Oliver said.

Arguments over the need for more trial preparation are routine in criminal cases, said Bruce Antkowiak, a St. Vincent College law professor and a former federal prosecutor.

The state Superior Court overturned a criminal conviction in 2013 because a judge refused to grant a continuance. The case stands out because it's the only one he can recall in which that happened.

Appeals courts generally defer to the trial judges on the question of how much time the defense needed to prepare.

“There's no absolute answer to this. The positions of both sides are reasonable,” Antkowiak said.

Blankenship's best argument for a delay is the number of documents and witness statements his lead attorneys need to process so they can prepare his defense, Antkowiak said.

Blankenship's motion states he has 16 lawyers each reviewing 20 documents an hour and working 50 hours a week. Because the government has turned over 651,000 documents in the case, that preliminary review won't be finished until Sept. 28, or about five months after the trial is scheduled to start, his motion states.

Throw in the need to review 100 hours of audio recordings of Blankenship's telephone conversations and 500 transcripts of witness interviews, and his lawyers won't even be able to formulate a defense, much less identify the witnesses they want to call, until sometime near the end of the year, the motion states.

A separate factor is that the judge has the trial scheduled to start two weeks after the fifth anniversary of the explosion, which will make finding an impartial jury even more difficult, the motion states.

“As the court is no doubt aware, the anniversary of the UBB explosion is an emotional time for the entire Beckley community.”

The government's response does not mention the proximity of the anniversary but claims that Blankenship is overstating the difficulty in sifting through the evidence because he has had access to most of the documents for years.

As for his claim that the case is complex, the government contends it's simple.

“Defendant conspired to routinely violate mine safety laws and conspired to impede federal safety officials, and when a fatal explosion threatened to reveal his crimes and cost him millions, he made, and caused to be made, false and misleading statements to hide what he had done,” Ruby said.

Brian Bowling is a staff writer for Trib Total Media. Contact him at 412-325-4301 or bbowling@tribweb.com.

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