When we last met Don Blankenship, former CEO of Massey Energy, he had been indicted on criminal charges over the Upper Big Branch coal mine disaster. There wasn't much news post-indictment, as U.S. District Judge Irene Berger issued a gag order.
A media coalition, which included the Charleston Gazette and NPR, sued to have the gag order lifted. The 4th US Circuit Court of appeals recently lifted the gag order. This released a flood of paperwork that the media has been digesting.
Among this flood is 20 motions filed by the defense and the government's responses. But before we get into the defense motions, a little history.
Don Blankenship is an important character in the Supreme Court case Caperton v. A. T. Massey Coal Co. Caperton, the president of Harman Mining, filed suit in WV court against Massey Energy, alleging that it had fraudulently cancelled contracts with Harman Mining (which resulted in Harman going out of business.) The verdict was in Harman's favor, with $50M in damages. Massey appealed to the state supreme court.
Meanwhile, there was a election going on, and Blankenship became involved in the campaign of Brent Benjamin against incumbent WV SC justice Warren McGraw. Blankenship was involved to the tune of $3M via a PAC he set up to support Benjamin. This was 3000 times the hard money limit, and more than all other Benjamin supports and his 2 campaign committees spent. Benjamin went on to defeat McGraw.
In due time the Caperton case made its way to the WV SC. Caperton requested that Benjamin recuse himself, he refused, and was part of the 3-2 majority that overturned the verdict.
Caperton petitioned the US Supreme Court, on the grounds that Blankenship's expenditures in favor of Benjamin created the appearance of impartiality bias in favor of Blankenship and that he should have recused himself. The Court accepted the case and it was remanded back to the WV SC. In the decision, Kennedy wrote
Blankenship's significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true. On these extreme facts the probability of actual bias rises to an unconstitutional level.
So, with our memories refreshed, on to the defense's motions. They charge that Blankenship is the victim of
"selective and vindictive prosecution” by Democratic prosecutors.
and that
Blankenship’s lawyers ask that Berger [judge overseeing the case] disqualify not only herself, but all of the judges in the U.S. District Court for Southern West Virginia.
“Neither this Court, nor any other judge in this district, can preside over this case under these circumstances, because Mr. Goodwin’s father is their colleague on this bench,” Blankenship’s lawyers argue. “A reasonable, everyday person would assume a shared understanding of the feelings a father has for his son: a desire for him to succeed in a high profile case and a hope he will not be criticized. A reasonable person would assume that no colleague of Judge Goodwin would want to be the instrument of his disappointment, and therefore would doubt the ability of any of the judges in this district to be impartial in these circumstances.”
So sayeth the defense for a man who had the US SC overrule the dismissal of a verdict against his company because he in essence had bought one of the judges on the appeals court.
This diary drew on the reporting of Ken Ward, Jr. of the Charleston Gazette and his Coal Tattoo blog. You can read more of his reporting on this case here and here.