Where’s the outrage on Massey revelations?

A few days ago Laurence Leamer, author of the new book “The Price of Justice: A True Story of Greed and Corruption,” tweeted, “Why hasn’t the West Virginia (press) asked why Don Blankenship has not been indicted for his role in the Upper Big Branch disaster?”

Leamer’s question is rhetorical and in the haiku of Twitter might be read simply as an attempt to shame journalists and prosecutors into action. But, Leamer knows West Virginia too well – its publishers, lawyers, judges, and people — to expect so simple and righteous a reaction. He understands our political culture of accommodation and the tendency of an economically and culturally deprived people to slip into unknowing acquiescence. Thus Leamer’s tweet is a provocation, but one tinged with despair, because he grasps the human toll taken by our lassitude – the lives impoverished, stunted, and lost.

“The Price of Justice” is a nearly up-to-the-present account of Hugh M. Caperton’s lawsuit against the former Massey Energy Company and its chairman Blankenship for using deceptive business practices to drive Caperton’s firm, Harman Mining Company, into bankruptcy presumably so that, rather than purchase the mine directly from Caperton, Massey could buy it out of bankruptcy for a fraction of its actual value.

The case, Caperton v. Massey, famously landed before the U.S. Supreme Court over the question of whether West Virginia Supreme Court of Appeals Justice Brent Benjamin, whose election was bankrolled by Blankenship, should have recused himself when the court considered a lower court verdict that awarded Caperton $50 million in damages. The case became the inspiration for John Grisham’s novel, “The Appeal,” about a company that attempts to buy a state supreme court decision. But, Massey, unlike Grisham’s fictional company, succeeded when Benjamin cast the deciding vote in a 3-2 decision.

The judicial scandal didn’t end with Benjamin, who was rebuked by the U.S. Supreme Court and had to recuse himself from further involvement in the case. Also joining the rogues gallery was former Justice Elliot “Spike” Maynard, whose impartiality was compromised when he was photographed vacationing on the French Riviera with Blankenship. Fellow Justice Larry Starcher had to recuse himself for prejudicial remarks he made about Blankenship. But most disturbing was Justice Robin Jean Davis, who, as portrayed by Leamer, connived to throw the case Massey’s way.

During oral arguments Davis mischaracterized the lower court record. Following oral arguments she pre-empted any discussion of the case by the justices and proceeded directly to a vote. And, in rejecting the appeal, she and her allies did so “with prejudice,” meaning the case could not be retried or reheard. Finally, in finding for Massey, Davis’s majority did so on apparently specious legal grounds.

Why did they do it? Why have West Virginia politicians historically accommodated coal interests even when they run counter to the interests of citizens and, as Leamer shows was the case in Caperton, when they destroy lives?

Does Leamer fully prove these charges? No. But, he makes a compelling circumstantial case that warrants – nay, screams for – intensive scrutiny by reporters and politicians. This is why. In attacking Harman Mining Company, Blankenship and Massey reneged on a contract to purchase coal at a specified price because it saw the possibility of driving Harman out of business and then acquire it for a song. That doing so would bankrupt Caperton, stiff creditors, and throw hundreds of workers out of jobs was unimportant.

Contractual obligations were similarly unimportant when Massey shorted Wheeling-Pittsburgh Steel on coal deliveries so the coal could be sold at higher prices elsewhere. Wheeling-Pitt sued and won a $220 million award, but the victory proved to be pyrrhic since the damage done to Wheeling-Pitt drove the company into bankruptcy, destroying hundreds of jobs and putting a nail in the coffin of a firm that once was the anchor of the upper Ohio Valley’s economy.

Then, of course, there were Massey’s thousands of violations of safety rules that produced the deaths of dozens of miners culminating in the tragedy at Upper Big Branch.

It’s important to remember that all of these tragedies resolve themselves in people. Leamer shares with us the anguish of the widows of dead Massey miners, the shattered life of a young man who became collateral damage in Blankenship’s drive to elect Brent Benjamin, and the Candide-esque tribulations of Caperton, whose continuing search for justice and financial solvency is now in its 15th year. These tragedies are only partially offset by the inspiring perseverance of two attorneys, David Fawcett and Bruce Stanley, who strive to stop Blankenship. The suffering and efforts of all of these people are necessary because businessmen such as Blankenship are predators.

With customers and suppliers alike, Blankenship seized on any weakness to wring out maximum return. In doing so, adherence to the law and to human decency was seen not as a matter of principle, but as an option to be weighed on the scale of profit and loss, leaving concerns about legality and ethics to those who are charged with enforcing such naïve concepts. Blankenship reminds us that, try as we might to make the cost of illegality and injustice greater than the gain, we can never anticipate all the means and rewards of malefaction.

That’s why the relative silence of journalists and politicians about Massey is deafening and why Leamer’s tweet and its implied question are so important. Where’s the outrage?

 

— Sean O’Leary writes from

Harpers Ferry

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