‘‘They are going to need documents,’’ he said. ‘‘The real linchpin of their prosecution is being able to prove the CEO or some other officer or director actively participated in what was going on.’’
Absent direct proof, Weinstein said, prosecutors would have to demonstrate ‘‘willful blindness’’ to matters of safety.
After a 2006 fire that killed two men at a different Massey operation, a memo surfaced that could help prosecutors make that part of the case. In it, Blankenship told workers at the mine that if their bosses asked them to build roof supports or perform similar safety-related tasks, ‘‘ignore them and run coal.’’
‘‘This memo is necessary only because we seem not to understand that the coal pays the bills,’’ he wrote.
Massey settled that lawsuit for undisclosed terms, and its Aracoma Coal subsidiary paid $4.2 million in civil and criminal penalties.
Bruce Stanley, the Pittsburgh attorney who handled that lawsuit and others against Massey, said no managers could act without Blankenship’s direction.
‘‘I cannot imagine that anybody at Hughart’s pay rank could engage in any of the activities that he’s accused of without Don Blankenship’s permission and blessing,’’ Stanley said.
During the Aracoma investigation, memos made clear that Blankenship paid particular attention to mines that were falling short of budget projections, Stanley said. The day of the fire, he called Aracoma’s then-president, wondering why a section crew wasn’t working.
‘‘Indeed he was super micromanaging all of these mines,’’ Stanley said. ‘‘At the section level and on a daily basis.’’
Hughart is the third person to face serious criminal charges in connection with Upper Big Branch.
Former UBB superintendent Gary May is also cooperating with prosecutors. He pleaded guilty to a federal conspiracy charge for his actions at the mine and is set to be sentenced in January.
Former Massey security chief Hughie Elbert Stover, meanwhile, is appealing his conviction last fall on charges he lied to investigators and ordered a subordinate to destroy documents.
He was sentenced to three years behind bars — one of the stiffest punishments ever handed down in a mine safety case — but has been free pending appeal. Witnesses testified that Stover instructed mine guards to send radio alerts whenever inspectors entered the property. He’s denied any wrongdoing.
The explosion at Upper Big Branch was sparked by worn teeth on a cutting machine, and fueled by methane and coal dust. It was allowed to propagate by clogged and broken water sprayers. The force of the blast traveled miles of underground corridors, killing men instantly.
Goodwin’s office negotiated a $210 million agreement with Alpha to settle past violations at UBB and other Massey mines, protecting the company from criminal prosecution.
But individuals remain on the hook.
Jeffrey Sloman, a former U.S. attorney in Miami, said criminal prosecutions of big-company CEOs are ‘‘relatively rare, but it happens from time to time.’’
‘‘You see it on Wall Street,’’ he said, ‘‘with New York going after financial crimes cases pretty aggressively.’’
Gary Quarles, who lost his son Gary Wayne at Upper Big Branch, just wants Blankenship to face criminal charges and be held accountable.
‘‘Everybody thinks he’s above the law,’’ he said. ‘‘I want at least something filed against him, to show him you can be had. It doesn’t matter what he’s charged with, just something. ... Even Martha Stewart went to jail. ‘‘
Associated Press writer Larry O'Dell contributed from Richmond, Va.