What is Criminal Behavior? Coal Groups Want to Know

by | Jul 8, 2016

don blankenshipRecall Don Blankenship, the coal baron who headed Massey Energy and who is now in prison for one year on a misdemeanor charge of sidestepping federal mine safety laws? His case has been appealed and some state coal associations are weighing in on his behalf.

The Ohio, Illinois and West Virginia Coal Associations have filed an amicus brief asking the Fourth Circuit of Appeals to consider their views in support of Mr. Blankenship. While laying out their argument, the coal associations say explicitly that they do not wish to address the specifics of the former coal barons case; rather, they feel that criminal law has been misapplied here — that government could tag anyone with a crime if it searched long and hard enough.

“Given the heavily regulated nature of the coal industry, where citations for non-criminal violations of the Federal Mine Safety and Health Act of 1977 are a routine aspect of federal regulation designed to make mining safer, it is imperative that the demarcation between business decisions and criminal conduct be clear, concrete and defined,” writes Christopher Brumley, partner with Flaherty Sensabaugh Bonasso in Charleston, WV.

“In an industry where regulatory citations will be received for a myriad of unforeseen circumstances, it must prove beyond a reasonable doubt that a defendant charged with willfully violating the Act (possess the requisite means) and not merely that his or her acts or omissions caused or failed to eliminate violations,” he continues.

In April 2010, 29 coal miners died at the Upper Big Branch Mine outside Beckley, WV. Between January 2008 and April 2010, before the accident occurred, the mine site had received 835 citations for such infractions as poor ventilation and excessive coal dust.

At the heart of the prosecution’s case had been Mr. Blankenship’s business practices and whether he held such disdain for government regulations that it translated into an attempt to purposefully sidestep mining protocols. For the defense’s part, it had argued that the former coal boss was just as concerned with mine safety as he was production — and that Blankenship would never authorize the circumvention of any law.

The defense is arguing now that the presiding judge in the case gave faulty instructions to the jury that had allowed Blankenship to be convicted while the coal association say that he may not have been aware that a crime had been committed. The defense has also argued that it was prevented from presenting key evidence at trial.

A such, Blankenship’s lawyers had asked the Fourth Circuit to stop the coal baron from entering a prison in May. But that request was denied by one judge. The entire case, though, is still on appeal.

“It is ridiculous to make an argument that to be guilty of a crime one must know that what you are doing is illegal or a crime,” says Jim Lees, a former prosecutor and now a defense attorney in Charleston, WV. “That argument has been rejected multiple times over the years (“ignorance of the law is not an excuse”).

“That has never been the law,” he adds. “What the law does require is that you intended to do what you did — that you acted willfully and intentionally to do what you did.”

He said that the government does not need to prove that a defendant is well-versed in what is or is not a crime. That would be an impossible burden. Suppose, for example, that coal operators are required to “rock dust” four days a week to prevent the accumulation of coal dust that can gather and explode. The government then has the burden to prove that a such coal operator didn’t adequately rock dust.

“An American citizen is presumed by law to know what is criminal behavior,” Mr. Lees says. “We punish willful behavior in America that is defined as outside the norm, or deviant behavior, as defined by society.”

Any chance of Blankenship winning on appeal? There always is. But at least one lawyer quoted in the popular press has said that it is unlikely. That is, if the single justice who denied the defense’s request to skip jail to await the outcome of the appeal is not on board, it probably means that the former coal baron’s sentence will hold and that he will remain in a minimum security prison until next May.

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