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Blankenship: Defense resumes fight over phone recordings

By Ken Ward Jr.

The Charleston Gazette-Mail

CHARLESTON, W.Va. — The jury in the Don Blankenship criminal trial was sent home early Thursday after defense lawyers resumed their efforts to prevent jurors from ever hearing recordings of telephone conversations in which the former Massey Energy CEO dismisses the problem of black lung disease, complains he’s not paid enough, and says he hopes serious safety concerns raised by one of Massey’s top safety officials can be kept confidential.

U.S. District Judge Irene Berger heard arguments on the matter for about 30 minutes following the trial’s afternoon break, while jurors waited in a lounge adjacent to the courtroom. The judge then called jurors in and dismissed them for the day at about 4 p.m., before hearing another half-hour of legal wrangling about the recordings — which Blankenship himself made, but which prosecutors believe are among their best evidence.

Defense lawyer Eric Delinsky read off identification numbers for a list of nearly two dozen recordings that he said should not be played for the jury. Defense lawyers have offered a variety of arguments: the calls are not relevant, defense attorneys haven’t had time to properly review them, and prosecutors proposed to play only portions of the calls, leaving out other parts the defense wants jurors to hear.

“This is an issue of basic fairness to Mr. Blankenship,” Delinsky told Berger. He said that playing the recordings would wrongly allow jurors to hear material that is simply “evidence of his wealth, evidence of how he manages his portfolio and statements that are taken out of context.”

“We do not think they are relevant,” Delinsky said. “We do think they are prejudicial. If they are trying to introduce those phone tapes to show something sinister or nefarious by Mr. Blankenship, they need to put in the whole tape.”

Jurors already heard Assistant U.S. Attorney Steven Ruby describe some of the phone calls — and show quotes from them on a slide presentation — during the government’s opening statement on Wednesday morning.

For example, Ruby said that jurors would hear a 2009 phone call in which Blankenship “says that he knows the company’s section bosses — this is in response to a conversation about cheating on, on tests of how much dust coal miners were breathing.”

“He says in the call, ‘I’m sure that there’s a certain amount of things that section bosses do and so forth, but the truth of the matter is that black lung is not an issue in this industry that’s worth the effort they put into it,’” Ruby told jurors in his opening statement.

Ruby told jurors that they would hear another phone call recorded after Blankenship was given a memo by one of his in-house lawyers, Stephanie Ojeda, summarizing serious safety concerns raised by Bill Ross, a longtime federal mine ventilation expert hired by Massey to work on safety issues.

In that call, Ruby said, Blankenship said he hoped the memo would be kept confidential, calling it “worse than a Charleston Gazette article.”

In another call, Ruby said, Blankenship complained to a woman he was dating that the Massey Board of Directors only wanted to pay him $12 million in 2010 and not allow him to make any more money than that if the company’s stock price went up. “I don’t know why they’re so unappreciative,” Ruby quoted Blankenship as saying.

Ruby also mentioned a phone call in which Blankenship was “giving his number two operations person at Massey a highly detailed explanation of how to make millions of dollars on stock options when the company’s stock price went up.”

Ruby told jurors they would hear Blankenship’s “own voice” from these calls, explaining that in early 2009 Blankenship had a recording system attached to his office telephone and started “secretly taping many of his phone calls.” Ruby said that the system “had a button that [Blankenship] could push to start recording when he wanted to and stop recording when he wanted to.”

During Thursday’s arguments on whether jurors would hear the calls, Assistant U.S. Attorney Greg McVey indicated that Berger had already ruled on some of the issues regarding the calls.

Earlier in the case, prosecutors had filed a motion to prevent the defense from playing their own portions of the calls, saying that would constitute hearsay not admissible at trial.

“While admissions of a party opponent are not considered hearsay and are admissible at trial, defendant’s own self-serving statements are not admissible,” prosecutors said. It is not clear exactly how Berger ruled on that motion, because the judge announced those rulings from the bench in a closed-door hearing Tuesday night.

During Thursday’s arguments, Delinsky indicated that defense lawyers don’t think that prosecutors can show that the calls are authentic and complete. McVey said that the government plans to call Blankenship’s former executive assistant, Sandra Davis, and a government investigator to authenticate the calls and explain how prosecutors obtained them.

Reach Ken Ward Jr. at

[email protected],

304-348-1702 or follow

@kenwardjr on Twitter.

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