The defense for Don Blankenship, former CEO of Massey Coal, rested today without putting on any witnesses.  Blankenship is on trial because he is charged with conspiring to violate federal safety standards. Investigators believe that Blankenship's methods contributed to a mine disaster that killed 29 people at the Upper Big Branch mine in West Virginia.  

One part of the trial has an interesting business law component.  Prosecutors have tried to show the Blankenship's interest in making more money was a key factor in cutting corners.  One West Virginia news paper reported it this way:

“The government is using his compensation package as an indication of how much production mattered to Don,” said Mike Hissam, partner at Bailey & Glasser. “They’re using his compensation to establish a motive for him lying and making false statements to investors, their theory being his compensation was so tied up with company stock he had a motive for lying to the SEC and the public to protect his own personal net worth.”

It's possible that this is accurate, but I am leery of that line of thinking.  It's not that I don't think it's possible Blankenship cut corners because it cost money, but it's not clear to me that would be the main of even a significant reason, if he did. The problem with this line of thinking is that Don Blankenship has tons and tons of money.  So the risk is that the jury looks at and says, "Nope — he's already rich. Why would that motivate him so much?" Further, while Blankenship stood to make money when things went well, his net worth was tied to company stock, so bad outcomes hurt him, too.  The incentive story is not as easy as it seems. 

My theory for the jury on this point would be more like this:  Blankenship played the game to win.  He liked winning, and he was used to winning, and he would not stop.  His winning made him rich.  And what was it that made him a winner?  More coal coming out of the ground. His coal. Coal, not money, earned points. Coal, not protecting lives, earned points. Safety measures and slow downs or shut downs lost points. And Blankenship was about scoring points. If the rules didn't help him, he tried to change the rules.  And who was hurt along the way did not matter.  Because hurt people don't score points.  Only coal matters in Blankenship's game. 

Anyway, there's a reason I'm not a prosecutor, but I put my theory forth because I am a little skeptical that the money-as-the-goal message will resonate with a jury the way prosecutors hope.  (To be clear, this is not the only theory prosecutors put forth — it's just the one I am focusing on.) My colleague Pat McGinley explained the challenges with Blankenship this way:

"There are a considerable number of people who view Mr. Blankenship in his role as the Massey CEO as arrogant and dismissive of criticism," he said. "But the jury hasn't seen that side of him. And don't forget he's embraced by many people, including many powerful people; he's not universally viewed as arrogant or in a negative light. What's important here is what assessment is the jury going to have?

Had Blankenship testified, we'd have a better sense of what the jury might think of him, because we'd at least have his testimony to assess. We'd know at least part of what the jury knows.  But he didn't. No witnesses for the defense, and no insight for those watching.  

It should be an interesting few days.