Ex-Massey CEO Stays Mum as Defense Rests in Mine Blast Case

Former Massey Energy Chief Donald Blankenship won’t take the witness stand to explain what happened when a company mine exploded in 2010 killing 29 workers, choosing instead to leave his fate in the hands of jurors at his criminal trial in West Virginia.

Prosecutors finished presenting their case on Monday and the defense chose not to call any witnesses on Blankenship’s behalf. The former CEO is accused of plotting with other executives to subvert safety rules at the Upper Big Branch mine, about 30 miles (48 kilometers) south of Charleston, the state’s capital. Jurors may hear closing arguments as early as Tuesday.

The executive’s decision not to take the witness stand came as no surprise to Robert Mintz, a white-collar criminal defense lawyer who isn’t involved in the case.

“It would have opened him up to a scathing cross- examination by the government, which would have allowed prosecutors to retry the case against him all over again,” said Mintz, a former federal prosecutor in Newark, New Jersey.

Blankenship, 65, is accused of cutting corners on safety at the mine before the U.S.’s worst mining disaster in more than three decades. He’s charged with conspiracy and lying to investors about Massey’s compliance with regulations and may face more than 30 years in prison if convicted.

Blankenship is betting his lawyers have poked enough holes in the government’s case for jurors to acquit him without his testimony, said Patrick McGinley, a West Virginia University law professor who was part of a group that investigated the Upper Big Branch blast.

“There was so much evidence presented showing Massey operated unsafe mines during Mr. Blankenship’s tenure that it wouldn’t help their case to have him face an ugly round of questioning over that,” McGinley, who has been following the case, said Monday.

“It’s more probable than not” Blankenship will be convicted on at least one of the counts against him, he said.

Other CEOs facing criminal charges have had mixed success over the years in winning acquittals based on efforts to explain their actions from the witness stand or deciding to stand pat.

Jeffrey Skilling, Enron Corp.’s former chief executive accused of spearheading the fraud that toppled the world’s largest energy trader, was convicted in 2006 after spending nearly a week on the witness stand. Skilling is set to leave prison in 2017 after having time shaved off a 14-year sentence.

Richard Scrushy, founder and ex-CEO of HealthSouth Corp., was cleared in 2005 of federal fraud charges that he inflated the company’s profit by $2.7 billion to enrich himself. Scrushy’s acquittal came after he refused to take the witness stand.

Earlier this month, jurors at the trial of two ex-Rabobank Groep traders accused of rigging a key financial benchmark said the testimony of one of them helped seal that defendant’s fate. They convicted after 8 1/2 hours of deliberations.

The move by Blankenship’s lawyers not to call witnesses was a “bold” one that may pay out in the end, said Harvey Peyton, a Nitro, West Virginia-based criminal defense attorney who has been monitoring the trial.

“It would have been a tougher call if they’d chosen to present some defense and then not have him testify,” Peyton said in an interview on Monday. “I think it was the best thing to do both psychologically and strategically with this jury.”

“I think it was obvious from the beginning the defense strategy was to contextualize” the government’s evidence so Blankenship’s lawyers could give jurors an alternative explanation for the claims against him, Peyton said.

Although Blankenship’s defense lawyers rested their case on Monday, they’re asking U.S. District Judge Irene Berger to consider allowing jurors to hear a dozen calls the executive taped that they contend show his emphasis on safety in Massey’s mines and efforts to set up programs to cut down on violations noted by inspectors.

Blankenship set up a secret taping system in his offices to record telephone calls with subordinates and others. Roughly 1,600 tapes were turned over to prosecutors after Alpha Natural Resources Inc. bought Massey for $7.1 billion in 2011. Alpha sought bankruptcy protection in August.

Blankenship’s own words have haunted him during the course of the trial as prosecutors were allowed to play for jurors 18 recordings the executive made while discussing safety issues with other Massey officials.

He can be heard on one recording saying that a confidential memo outlining safety problems at Upper Big Branch would be a “terrible document” to be turned over in litigation. Blankenship has never explained why he recorded the conversations while serving as CEO.

The case is U.S. v. Blankenship, 14-cr-00244, U.S. District Court, Southern District of West Virginia (Charleston).