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Prosecutors win legal round in Upper Big Branch case

CHARLESTON, W.Va. -- Prosecutors will be allowed to tell jurors about the Upper Big Branch mine disaster during the trial of a Massey Energy security director charged with lying to investigators and trying to destroy evidence in the disaster probe.

Jurors also will be able to hear about statements that Hughie Elbert Stover made to federal and state mine safety officials and to federal law enforcement agents, under a ruling this week from U.S. District Judge Irene C. Berger.

On Tuesday, Berger issued an 11-page ruling that resolved several major legal disputes in preparation for trial. Jury selection is scheduled for Friday, with trial set to begin on Monday in federal court in Beckley.

"Evidence of the explosion at UBB is clearly relevant to the narrative framework of these charges," Berger said. "When making a decision, the jury would be puzzled by the gaps in the story if evidence of the explosion at UBB were excluded."

Stover faces three felony charges that allege he tried to divert government agents investigating whether Massey officials tried to warn mining operations in advance of impending federal inspections.

Originally, Stover was charged in March in a two-count indictment alleging that he lied to FBI agents and U.S. Mine Safety and Health Administration officials and then tried to destroy thousands of pages of security documents that investigators believed could shed light on how Massey handles inspection warnings.

In May, Stover was charged with a third count, this one alleging that he also lied to MSHA investigators conducting the civil investigation of the disaster. The original indictment was based on testimony of FBI and MSHA agents, while the additional charge drew on a formal interview taken down word-for-word by a court reporter. Stover faces a potential sentence of up to 30 years in prison if found guilty on all three counts.

Stover is one of two people charged criminally so far in a sprawling federal criminal probe of Upper Big Branch. The April 5, 2010, explosion killed 29 miners and is the worst U.S. coal-mining disaster in nearly 40 years.

Last month, Berger sentenced former Upper Big Branch miner Thomas Harrah to 10 months in jail. Harrah pleaded guilty to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009 and to then lying to investigators about his actions.

In the Stover case, defense lawyers sought to suppress Stover's own statements to investigators, arguing he was not read his legal rights before those interviews. Berger disagreed, saying Stover was not entitled to be read his rights because neither interview was considered "custodial."

Berger also ruled against Stover's request that jurors not hear testimony or statements from prosecutors that mention that mine disaster.

The judge said the rest of the case against Stover would not make sense outside of the context of the disaster, but did caution prosecutors that "unnecessary, graphic and irrelevant details" of the explosion would not be allowed at trial.

Prosecutors also won a round with a ruling by Berger that defense lawyers can't introduce evidence about results of an honesty test given as part of an employment screening to two Massey security officers who are expected to testify against Stover. Berger ruled, "There is no evidence that the results ... are reliable to assess the witnesses' character for truthfulness and untruthfulness."

Berger also ruled that the defense would not be able to introduce evidence of a prior domestic battery charge and a shoplifting conviction of another security guard supervisor who is expected to testify against Stover.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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