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Prosecute Massey for Manslaughter

by RUSSELL MOKHIBER

A group of citizen activists are calling on the state of West Virginia to prosecute Massey Energy for manslaughter.

The group has set up a web site — prosecutemassey.org – that allows citizens to petition the state prosecutor to bring manslaughter charges against the coal company in connection with the April 5 explosion that claimed the lives of 29 coal miners.

“If there is evidence to support a homicide prosecution, I would not hesitate to prosecute,” Kristen Keller, the prosecuting attorney for Raleigh County, said last month.

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.”

The group is seeking to place billboards throughout the state.

The billboard reads:

29 Coal Miners Dead
Prosecute Massey for Manslaughter

And the group is seeking to take out radio ads throughout the state.

West Virginia has an involuntary manslaughter law.

According to state law:

“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 Washington Post reported last month that federal safety inspectors who visited Massey Energy’s Upper Big Branch coal mine early this year said senior managers showed “reckless disregard” for worker safety by telling a foreman to ignore a citation the mine had received for faulty ventilation, according to the inspectors’ handwritten notes.

The notes, from inspections in early January, say the president and a vice president of Massey Energy’s Performance Coal subsidiary told a foreman at the Upper Big Branch mine “not to worry about it” when he spoke to them about a ventilation problem cited by federal mine safety inspectors three weeks earlier.

They told the foreman “it was fine,” according to the notes, citing the account of a mine employee.

The Post reported that the sharpest words in the notes came January 7, when an unidentified mine employee told an inspector that a serious ventilation problem – air flowing the wrong direction in an intake duct — had not been fixed because Performance Coal President Christopher Blanchard and Vice President Jamie Ferguson had instructed a foreman, Terry Moore, to disregard the issue.

The foreman said he had known about the problem for three weeks.

The federal mine safety inspector went on to say that “the operator has shown a reckless disregard of care to the miners on this section and [eligible] men that use this escapeway.”

He added later that “I believe the operator has shown high negligence due to fact of management knowing where problem is.”

He said the ventilation flaw could “result in fatal injuries” by sending methane to the coal face where drilling was taking place.

Corporations have been prosecuted for homicide for reckless disregard in the past – most notably Ford Motor Company in the late 1970s.

On August 10, 1978, three teenage girls driving in a Ford Pinto were hit from behind on Highway 33 in northern Indiana.

Within moments their car burst into flames and Lyn Ulrich, 16 and her cousin Donna Ulrich, 18, were burned to death.

Eight hours later, Lyn’s 18-year-old sister, Judy, who had third degree burns over 95 percent of her body, also died.

When an Indiana grand jury looked into the accident a month later, they voted unanimously to indict not the driver of the van that had rear-ended the three girls, but Ford Motor Company – then the country’s third largest industrial corporation – on three counts of reckless homicide.

The automaker was accused of recklessly designing, manufacturing and marketing the Pinto’s unsafe fuel tank system.

Although Ford was ultimately acquitted, the criminal prosecution of Ford Motor Company reestablished an important precedent:

In certain cases involving human health and safety, corporations and their executives could be required to submit not only to the scrutiny and sanctions of traditional federal agencies, but to state criminal courts as well.

RUSSELL MOKHIBER is the editor of the Corporate Crime Reporter.

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

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