Prosecuting Massey for Homicide

For years, the state of West Virginia was proud to say that it was “open for business.”

In a twist, now it might be open for a homicide prosecution in connection with the deaths of 29 miners at the Massey Energy mine in Raleigh County, West Virginia earlier this month.

“If there is evidence to support a homicide prosecution, I would not hesitate to prosecute,” Kristen Keller, the prosecuting attorney for Raleigh County told Corporate Crime Reporter last week.

Keller says she has been in touch with the West Virginia State Police on the matter.

And she says that any federal regulatory investigation would not preclude a state homicide investigation.

“A federal regulatory investigation does not satisfy the need for a state criminal investigation,” Keller said. “If there were a car accident where one or ten or 29 people were killed – a federal investigation would not preclude a state criminal investigation. In fact, there would be a state criminal investigation.”

Twenty-nine miners died at Massey’s Upper Big Branch mine in Raleigh County as the result of an explosion on April 5.

Since then, there have been calls for both federal and state criminal prosecution.

Bob Franken, wrote an article last week for The Hill titled “Murder in the Coal Fields?”

“Plain and simply, the police and prosecutors need to pursue this case,” Franken wrote. “And if those who run Massey can be shown to be culpable beyond a reasonable doubt, they need to be thrown into prison. The sentence for involuntary manslaughter, as just one possible charge, in West Virginia, is a year in prison. For each case.”

West Virginia has an involuntary manslaughter statute.

Here’s the state’s definition: “Involuntary manslaughter involves the accidental causing of death of another person, although unintended, which death is the proximate result of negligence so gross, wanton and culpable as to show a reckless disregard for human life.”

Under West Virginia law, reckless disregard is something more than ordinary or simple negligence.

It is negligence that consciously ignores the safety of others.

And so the question is – do Massey’s actions at the Upper Big Branch mine meet the standard for reckless disregard?

The Charleston Gazette’s Ken Ward Jr. reported last week that three months before last week’s deadly explosion, “Massey Energy managers at the Upper Big Branch Mine told workers ‘not to worry’ that the flow of air in the mine – meant to control deadly gases and coal dust – was headed in the wrong direction.”

The comment was made in January, when state and federal inspectors were battling Massey over what Mine Safety and Health Administration (MSHA) and the state Office of Miners’ Health, Safety and Training said were major ventilation problems.

“When questioned, Terry Moore, mine foreman, said he knew of [the] condition and that he asked Everett Hager, superintendent, about it and he was told not to worry about it,” the MSHA inspector, whose name was not released, wrote in his official notebook, the Gazette reported.

“When mine ventilation moves in the wrong direction, that’s a big deal,” Dan Heyman, a stringer for the New York Times based in Charleston told Corporate Crime Reporter last week. “The inspector was complaining to the foreman that the ventilation was moving in the wrong direction and it was not being fixed.”

“The foreman at the company went to the mine supervisor and was told not to worry about it,” Heyman said. “That’s really a smoking gun.”

“Inspectors have told me that it’s a constant tug of war trying to get Massey to obey the rules,” Heyman said.

Over the past two decades, there have been a number of criminal manslaughter prosecutions around the country for worker deaths

In the 1980s, every time a worker died on the job in Los Angeles County, the district attorney would send out a team to investigate the case for a possible manslaughter investigation.

And many successful homicide prosecutions were brought against companies and executives as a result.

We asked Heyman what impact he thought the 29 coal miner deaths have on public opinion in West Virginia.

“I’ve been surprised as to how these things will settle back down,” Heyman said. “I thought the coal industry was in terrible trouble after the Sago mine accident that took 12 lives. And for a time, it was. But eventually, it begins to try to exercise the influence that it always had in the state.”

“This feels a bit different this time. At least in the worlds of journalism and politics that I follow – inside the equivalent of the West Virginia beltway – I sense a willingness to get tough. I don’t know whether that will result in criminal charges. But there have been a couple of op-eds in the states’ largest newspapers calling for criminal prosecutions.”

“We have also seen people saying publically that the coal industry in general is bad for the state of West Virginia – which is tantamount to heresy. Many have thought these things, but there hasn’t been a willingness to voice it.”

“There was a lot more shock and dismay in 2006, because it seemed like such a surprise. This time, there is less rhetoric and more anger.”

Heyman says that coal still has its supporters.

“People who are tied into the economy – successful local business owners – will say – this is the only thing that brings money into our area,” Heyman said.

“I was making this point to another reporter – that there is a split – between people like car dealers, who are successful and tied into the American dream in a sense – and people who live on the margins. I was saying the successful businessmen are much less likely to criticize Massey.”

“And he went and talked to a local prominent businessman in Raleigh County. And that businessman refused to talk with him because he said – there is so much anger at the company, that if his customers heard him on the air saying good things about Massey and Blankenship, that it would blow back on him.”

“That’s the reverse of what we would have seen in the past. So, there’s a power dynamic. And there is a tipping point where the king loses control of the kingdom. And then everything goes to hell for him. I don’t know if we are at that point.”

“Yes, coal is king in West Virginia. But it’s never been a peaceful kingdom. There has been a long history of conflict and dispute and even violence between the coal industry and workers or environmentalists. It’s always a very restive situation.”

Last week, an editorial in the Mountain Eagle newspaper of Whitesville, Kentucky asked the question – Why Do Miners Die?

And the paper answered this way:

“They die because of negligence. They die because the company they work for cares more about running coal than making mines safe. And they die because the federal agency that is charged with protecting them fails in its mission.”

“The mine was projected to earn $145.6 million for Massey this year, and nothing was going to get in the way of meeting that goal. Massey CEO Don Blankenship has dismissed any and all criticism as the work of ‘the enemies of coal.’ He’s God, in short, and you’re not.”

In a now infamous 2005 memo, Blankenship wrote this to his workforce:

“If any of you have been asked by your group presidents, your supervisors, engineers, or anyone else to do anything other than run coal (i.e. build overcasts, do construction jobs, or whatever) you need to ignore them and run coal.”

The following year, a deadly fire broke out at another Massey mine, Aracoma, killing two men.

The memo helped federal prosecutors secure a guilty plea from Massey’s Aracoma unit in January 2009. The company was fined $2.5 million.

RUSSELL MOKHIBER is editor of the Corporate Crime Reporter.

[For a complete transcript of Interview with Dan Heyman, see 24 Corporate Crime Reporter 16(12), print edition only.]




Russell Mokhiber is the editor of the Corporate Crime Reporter..