Jurors in the criminal trial of former Massey CEO Don Blankenship on Tuesday heard a sometimes testy back-and-forth between a defense lawyer and a former Upper Big Branch miner, and then got a lesson in the poorly maintained longwall mining water spray system that government investigators found played a major role in the April 2010 disaster that killed 29 workers at the Raleigh County mine.
Blankenship is not charged with causing the mine explosion, but Tuesday's court session - the ninth day of the landmark trial - may have come the closest to taking jurors directly into the story of the events that led to an unprecedented federal investigation that culminated in criminal charges of conspiracy, false statement and securities fraud against the controversial longtime Massey chief executive.
Keith McElroy, an investigator with the federal Mine Safety and Health Administration, explained to jurors that he found eight of 43 water sprays meant to control sparks and dust on one end of the longwall machine's cutting shearer were missing when the equipment was examined after the mine disaster. Other sprays were clogged and didn't work properly, McElroy said.
"The water sprays stop up," McElroy testified. "The water flow stops reaching the coal face and you lose some of your dust suppression. You lose some of the ability to cool the bit down."
While questioning McElroy, Assistant U.S. Attorney Steve Ruby showed jurors actual bits from the Upper Big Branch longwall shearer. Jurors passed the bits - including one that was worn out - around to look at and touch. Ruby also had McElroy show jurors one of the water spray nozzles.
Defense attorney James Walls repeatedly objected to the testimony, saying it was not relevant to the charges against Blankenship and then that prosecutors had not followed proper procedures to notify the defense about McElroy and a test that he conducted on the Upper Big Branch water sprays. Berger heard arguments on the matter for about 20 minutes after the jury had left for the day Tuesday. Court resumes at 1:30 p.m. Wednesday at the Robert C. Byrd U.S. Courthouse in Charleston.
Lawyers in the case started the day by wrapping up the testimony of former Upper Big Branch fireboss Larry Adams and then questioning former UBB worker Michael Sean Ellison, as prosecutors continued a parade of witnesses who have described to jurors their experiences struggling with safety problems at the mine and fearing that anything but a production-first approach would cost them their jobs.
Ellison testified that mine managers told workers to wear the dust monitors in a way that would obscure real dust levels at Upper Big Branch.
"We would be told to put them inside our bibs - wear them covered up - to try to get not a true reading," Ellison said.
Ellison said workers were also told to hang their monitors in a fresh air intake of the mine so the monitors would be far from any dusty conditions that were around.
Blankenship, 65, is charged with conspiring to violate mine safety standards and thwart government inspectors to cover up the resulting hazards to workers and with making false statements to securities regulators and with securities fraud. Those charges allege that Blankenship issued false public statements touting Massey's safety practices to try to stop company stock - and his personal fortune - from plummeting after the mine explosion.
Among other things, the indictment against Blankenship alleges that part of the conspiracy at UBB involved falsifying samples of respirable dust that causes black lung disease. The indictment also outlines violations related to the missing water spray nozzles.
Shortly before jurors took their daily lunch break, U.S. Attorney Booth Goodwin began personally questioning the government's 17th witness, former Upper Big Branch miner Stanley "Goose" Stewart. Stewart is among the better known and more outspoken of the former Upper Big Branch workers, having testified to Congress, provided statements to the federal MSHA, and granted interviews with a variety of media outlets.
Stewart described for jurors how miners at Upper Big Branch were told to take shortcuts - skipping key steps in the mining process, such as cleaning up loose coal and rock-dusting the mine to prevent explosions.
"You put it back in the coal," Stewart testified. "You were told to put it back in the coal."
On cross-examination, Stewart engaged in sometimes testy exchanges with defense lawyer Blair Brown. Eventually, U.S. District Judge Irene Berger scolded Stewart three times after Brown complained Stewart was not really answering his questions, or continuing his answers beyond responding to what Brown has actually asked him.
Stewart testified about signing an agreement with Massey's Performance Coal Co., which operated the UBB mine, that raised his pay from $21 an hour to $30 an hour. But Stewart said the agreement also would've prohibited him from working for other mining companies within 90 miles of UBB even if he left Massey over safety concerns, and required him to repay the salary increase if he quit Massey.
Also, Brown tried to pit Stewart against his former section former boss, Richard "Smurf" Hutchens, questioning Stewart about Hutchens' testimony that he shut down coal production to fix safety problems. Stewart said Hutchens tried to operate safely but was under tremendous pressure from Massey. Stewart said Hutchens would shut down production - sometimes. Brown asked Stewart if Hutchens said otherwise, who should Brown believe. Stewart responded, "I don't know what Mr. Hutchens said."
Stewart had testified that he saw Blankenship at the Upper Big Branch mine several times in the late 1990s, when he said Blankenship was meeting with workers during an organizing drive by the United Mine Workers. He said he also saw Blankenship in the longwall section of the Upper Big Branch mine, perhaps in the early 2000s.
Brown quizzed Stewart about his own family connections to the UMW, at one point confusing Stewart by asking him about someone named "Marty Thomas." Stewart's cousin is Marty Hudson, a former UMW organizer who now is a trustee of the union's health and pension funds. Stewart said he wasn't aware of any "personal animosity" between Blankenship and the UMW, but that he knew Blankenship opposed unionization of Massey's mines.
Toward the end of his cross-examination of Stewart, Brown said that Stewart was "observed" talking to a journalist from the television program "60 Minutes" during the court's lunch break. "I said, 'Hi,' and she handed me a [business] card," Stewart said. "That's about the extent of that."
During re-direct questioning, Goodwin asked Stewart why government inspectors didn't hear more from the UBB miners about the conditions at the mine.
"It was the code of silence," Stewart said. "The men were not talking. They were scared to."
Asked by Goodwin why he decided to testify to Congress after the mine explosion, Stewart wiped back tears and said, "After what happened I felt like the truth needed to be told about the things that went on there, and the reasons why that mine blew up."
Check the Gazette-Mail's Coal Tattoo blog for frequent updates on testimony in the Blankenship case, and visit the Blankenship trial page for a timeline, exhibits and other features.
Reach Ken Ward Jr. at kward@wvgazette.com, 304-348-1702 or follow @kenwardjr on Twitter.