Bluefield Daily Telegraph, Bluefield, WV

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September 25, 2013

Ex-W.Va. mine boss says lawyer made him scapegoat

MORGANTOWN — A former superintendent in prison for his actions at the Upper Big Branch mine says his lawyer was ineffective, had conflicts of interest and made him a scapegoat for the 2010 disaster that killed 29 coal miners to help protect former Massey Energy executives from prosecution.

Gary May has asked a judge to set aside or change the 21-month sentence he’s now serving at the Federal Correctional Institution at Morgantown. U.S. Magistrate Clarke VanDervort hadn’t scheduled a hearing as of Tuesday afternoon.

May said defense attorney Tim Carrico refused to let him testify that illegal advance warning of safety inspections was common practice at former Massey Energy operations now owned by Virginia-based Alpha Natural Resources.

May said more than 100 people at Upper Big Branch participated in the unwritten scheme, but he was muzzled to protect executives including Chris Blanchard and Don Blankenship from prosecution in the worst U.S. coal mining disaster in four decades.

Blanchard was the president of Performance Coal Co., the Massey subsidiary that ran the mine near Montcoal. Blankenship was Massey’s CEO.

May claims that longtime Massey general counsel Shane Harvey was among those directing Carrico’s actions.

Carrico didn’t immediately return a phone message, but Harvey denied he had any involvement in May’s case or his attorney’s defense strategy.

May said that prosecutors were “looking for a villain,” and that he “became an easy scapegoat for the U.S. Attorney’s Office to relieve public pressure with a conviction and became a sacrificial lamb for Massey and its corporate successor, Alpha.”

Assistant U.S. Attorney Steve Ruby declined comment.

Earlier this month, Berger sentenced another Massey executive — former White Buck Coal Co. president David Hughart — to 3 1/2 years in prison for his role in the advance-warning system that he testified was common at Massey mines. At his plea hearing, he implicated Blankenship in the conspiracy.

Blankenship has never been charged, and federal prosecutors have refused to identify the targets of their continuing criminal probe.

Hughart is in federal custody, while former Upper Big Branch security chief Hughie Elbert Stover is also behind bars for his actions in the mine.

May, who filed his petition without the help of an attorney, pleaded guilty to a conspiracy charge last year and was sentenced in January to 21 months in prison.

He had 17 years with Massey at the time of the disaster and said advance notice of inspections by the federal Mine Safety and Health Administration “is an industry standard,” with inspectors themselves often facilitating.

May said Blanchard specifically ordered him to provide such notice at UBB. Yet when he tried to raise the scheme in his own defense, May said, Carrico shut him down.

“It is now clear why Carrico was kicking his client May under the table at the sentencing hearing during the court’s questioning,” telling him not to discuss corporate policy, the petition says. “May assumed he would have another opportunity to divulge this information, but this never occurred.”

Massey hired Carrico on his behalf, he said, and Alpha paid Carrico after it acquired Massey.

Carrico was “in constant communication” and “dependent upon” Alpha’s general counsel, May claims, and also consulted with Harvey’s wife, Blankenship defense attorney Tammy Harvey.

Alpha spokesman Ted Pile said May was represented by his own personal attorney.

“We’re not aware of any Alpha attorney being involved in providing legal advice, formulating strategy or providing any sort of input for Mr. May’s criminal case,” Pile said in an email.

He could not immediately say whether Alpha paid May’s legal bills, as alleged.

Carrico also represented Hughart in his criminal case, May’s petition said. Court records show Carrico withdrew about six weeks before Hughart’s February plea hearing.

Four separate investigations into the Upper Big Branch disaster found that Massey allowed highly explosive methane gas and coal dust to accumulate, and that worn and broken cutting equipment created the spark that ignited the fuel. Broken and clogged water sprayers allowed what should have been a minor flare-up to become an inferno that ripped through miles of underground tunnels, killing men instantly.

MSHA said the root cause of the explosion was Massey’s “systematic, intentional and aggressive efforts” to conceal life-threatening problems. MSHA said mine managers went so far as to maintain two sets of pre-shift inspection books — an accurate one for itself, and a fake one to throw off inspectors.

May said he was wrongly accused of disabling a methane monitor in a work area and ordering a subordinate to falsify inspection books, and contends that Carrico refused to have the erroneous facts removed from his pre-sentencing report.

That failure, May said, made him appear “more culpable than he was” and affected his sentence.

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