On June 29, 2009, Massey Energy CEO Don Blankenship was talking on the phone with Stan Suboleski, a member of Massey's board of directors. Just four days earlier, Blankenship had been given a now well-known memo from Massey ventilation expert Bill Ross, outlining serious safety problems at the company's mines.
The memo was based on a June 17, 2009, meeting between Ross, Suboleski and then-Massey lawyer Stephanie Ojeda.
Suboleski seems to express somewhat similar concerns, or at least wants Blankenship to understand that Ross could have some important points to make.
"You know, we do seem to have a lot of, you know, a lot of messes up," Suboleski says, according to a transcript of the call. "It doesn't look as neat as it used to, as it used to look."
Then Blankenship starts talking. He says he finds it all "hard to believe."
Doesn't Massey have the best safety program in the industry, he asked? Haven't other companies adopted Massey's drug testing policies? Their reflective clothing requirements?
Suboleski isn't immediately convinced. He says that Massey's mines no longer have "the skilled people that we've had before," so, "we have more screw-ups" and it "takes longer to get things done."
But Blankenship doesn't give up.
He asked, doesn't Ross know that Massey helped develop devices to protect miners from being run over by equipment and led the way in putting canopies on mantrips?
"Yeah, I agree with that," Suboleski finally tells Blankenship.
As Blankenship's lawyers prepare to begin their part of the trial early this week, federal prosecutors are trying to block them from playing for jurors the defense's pick of the 1,600 telephone calls that Blankenship recorded and that government investigators obtained from Alpha Natural Resources after Alpha bought Massey in June 2011. In a new court filing on Sunday, Assistant U.S. Attorney Gabriele Wohl cited the Blankenship-Suboleski recording as a near-perfect example of why prosecutors argue the calls proposed by Blankenship's lawyers shouldn't be allowed in the case.
"This entire conversation is an attempt by defendant to preserve his own statements that would tend to mitigate any damaging effect of the Ross memorandum," Wohl wrote. She said that the conversation "lacks indicia of contemporaneity and spontaneity" that would be required for it to be admitted in the trial.
It might seem only fair that Blankenship gets to play jurors the calls he wants them to hear. After all, prosecutors played the jury a series of phone calls in which Blankenship talks repeatedly about his own personal wealth, Massey's stock prices and his concerns that the Ross memo might someday be used against Massey in court.
But the legal arguments are more complicated over the defense proposal to play as many as 17 of Blankenship's phone calls that they believe will convince jurors that Blankenship cared very much about worker safety and was pressing everyone at Massey to reduce the number of safety violations the company received.
The issue revolves around the legal definition of "hearsay." Hearsay is kind of like a rumor. It's information from other people that can't be adequately substantiated. Generally speaking, it's not allowed in court cases. At trial, especially a criminal trial, the person who has the information is supposed to be brought in to testify, so the other side can cross-examine them and the jury can decide whom it believes.
But as with so many things in the law, the rule against hearsay isn't absolute. There are lots of exceptions, and they can get pretty complex, especially in a high-stakes trial like Blankenship's, with aggressive prosecutors and skilled defense attorneys both jockeying for an edge to make their case to the jury.
Already, debates over what is and isn't hearsay, and what qualifies for an exception have been fairly significant issues in the Blankenship case, as the trial enters its 25th day of testimony when the jury returns to the Robert C. Byrd United States Courthouse at 9 a.m. today.
For example, Blankenship's lawyers have tried to keep copies of U.S. Mine Safety and Health Administration citations out of the case. They argue that the descriptions of alleged violations at Massey mines are hearsay, and that prosecutors should have to bring in the MSHA inspectors who wrote those citations to testify about what they saw, and give the defense the chance to cross-examine them. Prosecutors, though, argued that the citations were introduced not to prove that the violations were facts, but to show that Blankenship had notice or knowledge of the allegations being made by MSHA about conditions at the Upper Big Branch Mine. U.S. District Judge Irene Berger allowed the citations into evidence for the jury's consideration.
Early in the case, prosecutors were able to play for jury their own selections from the Blankenship telephone recordings. Berger allowed those into the case in large part because she ruled that they qualified for an exception to the hearsay ban that covers statements by a party against that party's interest that are being introduced by the other side.
But during pretrial arguments, prosecutors appeared to have successfully sought to block Blankenship's defense team from being able to play its own selection of the former CEO's phone calls.
"While admissions of a party opponent are not considered hearsay, and are admissible at trial, defendant's own self-serving statements are not admissible," the prosecution said in a pretrial motion. Defense lawyers complained at the time that the prosecution had not provided the court with specific complaints about particular phone calls, and argued that any call that contained any "statement made by Mr. Blankenship that reflects his state of mind or intention is clearly admissible."
During a closed-door hearing on Oct. 6, Berger appeared to rule with the prosecution, saying that self-serving statements from the telephone calls "clearly are not admissible under the hearsay rule," according to a hearing transcript that was later made public.
Since then, though, the judge has on Oct. 14 reversed her own initial ruling to block the defense from using handwritten Blankenship notes about safety issues that she had originally agreed with the prosecution were self-serving, out-of-court statements that were not admissible at trial. Berger said in doing so that she had reviewed a variety of previous court cases and determined that she couldn't just reject the statements outright. Instead, the judge said, she needed to consider whether the statements fell within an exception to the hearsay rule and whether they appeared to be trustworthy.
So now, defense lawyers are arguing that the telephone calls they want jurors to hear fall within a hearsay exception because they are being offered not to show the facts asserted in the records, but to indicate Blankenship's state of mind at the time the statements were made.
Late last week, after a lengthy private bench conference, Berger indicated that she would admit the defense's calls if they fell within the state-of-mind exception. The judge said that she did "not find there to be a lack of trustworthiness" in the calls.
In their court filing on Sunday, prosecutors said that they continue to disagree with the judge's decision that "selectively generated recordings of purportedly exculpatory statements should come in."
"These are recordings that [Blankenship] selectively made during a period when his and Massey's practices with regard to safety compliance were under scrutiny and when he anticipated future litigation about those practices," the new government filing states. "He has chosen a number of them in which he taped himself and others uttering words that purport to endorse safety compliance or to express a belief that the company complied with safety laws."
In the call with Suboleski, prosecutors note, for example, Suboleski attempts to steer the conversation back to Ross' concerns, but Blankenship dismisses those statements "and continues to make assertions about how Massey is better than other companies" and "more than once meticulously lists safety initiatives like forklifts, proximity devices, drug testing and reflective clothing."
Prosecutors provided the judge with a marked-up version of a transcript of the defense calls, noting portions the government believes should not be played for the jury. They also submitted additional portions of the defense's calls that they argue must also be played to give the jury a complete picture of the conversations.
Berger has told lawyers for both sides to be in court at 8 a.m. today - an hour before the jury arrives - to discuss the telephone call issue.
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 time line, exhibits and other features.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.