Prosecution, defense rest in case of ex-coal CEO Blankenship

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Posted: Nov 16, 2015 5:15 PM
Prosecution, defense rest in case of ex-coal CEO Blankenship

CHARLESTON, W.Va. (AP) — Defense attorneys for ex-Massey Energy CEO Don Blankenship rested their case Monday without calling any witnesses, a strategy in a criminal trial that experts say is rare, aggressive and risky.

Blankenship is being tried on charges of conspiring to break mine safety laws at Upper Big Branch Mine and lying to financial regulators and investors about company safety. The southern West Virginia mine exploded in 2010, killing 29 men.

"It's a way of saying, 'The prosecution's case is so weak we don't need to respond, and we can win without calling a single witness,'" said Brandon Garrett, a University of Virginia law professor who wrote a book about corporate prosecutions.

It's unusual for the defense not to call witnesses who can "humanize the defendant," Garrett said.

The defense's announcement came shortly after the prosecution rested, following weeks of witness testimony. The government asserted that Blankenship put dollars ahead of human safety in the years before the worst U.S. coal mine disaster in decades.

Blankenship could face up to 30 years in prison.

The trial, which began Oct. 1, featured testimony from Massey management and miners, expert witnesses, federal regulators, and more.

Prosecutors painted Blankenship as a micromanager who received constant reports about Upper Big Branch, meddled in the smallest decisions at the mine and cared more about money than safety. His attorneys, meanwhile, used testimony from multiple prosecution witnesses to support his defense.

U.S. District Judge Irene Berger dismissed jurors until Tuesday morning, when both sides might offer their closing arguments.

Former assistant prosecutor Mike Hissam, who helped investigate the Upper Big Branch mine before becoming a defense attorney, said, "(The defense) obviously think they inflicted body blows on the government's case during cross-examination, and that there's more downside from repeating more of the same for the jury during their own case, coupled with the dangers of losing credibility with the jury from the government's cross of defense witnesses." Hissam is not involved in Blankenship's case.

Other high-profile corporate defendants have opted to rest without calling witnesses, with mixed results.

Political fundraiser Antonin Rezko of Illinois was convicted on 16 corruption charges and sentenced to 10½ years in prison in 2011. Former Bank of America broker Theodore Sihpol was acquitted on 29 counts of improper trading of mutual funds in 2005. And Charles Keating was convicted in 1991 of fraud and spent nearly five years in prison for his role in the 1980s savings and loan scandal.

Throughout the case, prosecutors used phone calls that Blankenship secretly recorded in his Massey office to let the former coal baron make their case in his own voice.

In key calls, Blankenship said a scathing internal safety memo should be kept highly confidential, and that it would be a terrible document to show up in legal discovery if there was a mine fatality.

Former Massey subsidiary president Christopher Blanchard testified under an immunity agreement with the government, but helped the defense during almost five days of cross-examination.

He told Blankenship's attorneys that he did not break any laws and denied being involved in a conspiracy with Blankenship to violate safety regulations. The defense showed Blanchard more than 180 documents to get him to agree that Blankenship and Massey pushed for safety.

Blanchard testified that he believed Blankenship thought it was less expensive to pay fines than pay for measures to prevent safety violations. He also said most Upper Big Branch violations could have been prevented by hiring more miners or spending more time on safety tasks.

Ex-Massey safety expert William Ross, who gave the tough review of the company's safety shortcomings, provided rare emotional testimony.

He wept while describing how thrilled he was that he thought Massey was going to change. He also became emotional while talking about a 2009 meeting with Blankenship, in which he told the executive that Massey couldn't "afford to have a disaster."

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Associated Press Writer Larry O'Dell in Richmond contributed to this story.