By Jane Von Bergan

– Outside a West Virginia courthouse, the families of the dead waited for Don Blankenship, the former chief executive of Massey Energy Inc., about to be sentenced for a mining disaster that killed 29 miners at Massey’s Upper Big Branch mine in Montcoal, W. Va.

“I miss my son, my brother, my nephew!” shouted one man as camera crews captured the moment at the federal courthouse in Charleston on Wednesday. “How come you never came to apologize to me?”

Every day 12 people – sons and brothers, mothers, and daughters – die on the job because of hazardous conditions, but rarely do their employers face serious jail time, or anything more than a misdemeanor charge.

Such prosecutions are difficult – federal workplace safety laws are weak, and there is often a lack of cooperation between federal and state law enforcement.

But all that is changing. Important recent cases here and elsewhere show prosecutors using a range of creative legal techniques to navigate the gray zone between criminal and civil offenses that workplace deaths often occupy.

Exhibit A: Blankenship, sentenced Wednesday to a year in prison, making him one of the highest-ranking chief executives to face criminal charges – and jail time – for workplace fatalities.

On April 5, 2010, an explosion killed 29 miners at Upper Big Branch. Federal prosecutors argued that unsafe conditions caused the explosion. Blankenship contended it was an accident, caused by natural gas.

Five years later, on Dec. 15, after weeks of testimony about unsafe conditions in the mine, jurors found Blankenship guilty of a federal misdemeanor of conspiring to violate mine safety laws. The jury acquitted him of felonies that could have put him in prison for decades.

The conviction aligns Blankenship with a Philadelphia roofer, a California film director, and a New Hampshire gunpowder executive. All have been criminally charged in connection with the workplace deaths of their employees, and all are going or have been to prison.

“It’s one thing [for company owners] to have their insurance company pay fines, and it’s another thing to have them personally in jail,” said Barbara Rahke, director of PhilaPOSH, an advocacy group that works to improve worker safety.

Increased accountability for owners and managers will lead to improved workplace safety, legal experts say.

“We’re seeing a boom in white-collar prosecutions, and workplace prosecutions are part of it,” said University of Maryland law professor Rena Steinzor. “These are middle-class people running companies. If they are prosecuted – even a few of them – there will be a tremendous deterrent.”

Successful criminal prosecutions often hinge on careful, creative application of existing laws. The chief executives “aren’t guilty of murder because they don’t say, ‘I’m going to work to kill someone,’ ” said Steinzor, who, in 2014, wrote Why Not Jail?, a book on a trend of criminal prosecution for what had been considered civil offenses.

So it’s up to prosecutors to find a different path to conviction, particularly since federal officials themselves are frustrated with the penalties in the federal Occupational Safety and Health Act.

“The maximum period of incarceration upon conviction for a violation that costs a worker’s life is six months in jail, making these crimes a misdemeanor,” Assistant U.S. Labor Secretary David Michaels testified before Congress in October.

One response is what Steinzor calls an “Al Capone” strategy: charging executives with “process violations” rather than with crimes directly related to the deaths.

Blankenship, for example, was charged in federal court with a misdemeanor – conspiracy to violate mine safety laws – and two felonies involving making false statements about the disaster.

The jury convicted him of the misdemeanor and acquitted him of the felonies, which could have added decades of prison time.

Federal prosecutors wanted U.S. District Judge Irene Berger to throw the book at Blankenship, but given the law, Berger, a miner’s daughter, barely had a booklet to toss.

Berger sentenced Blankenship to the maximum penalty, a year in prison and a $250,000 fine as he continued to assert his innocence.

“By putting profits of the company ahead of the safety of your miners, you, Mr. Blankenship, created a culture of noncompliance at Upper Big Branch,” Berger said, the West Virginia Gazette Mail reported.

A similar pattern of charges occurred in Philadelphia, in the case of roofer James McCullagh, 60, of Meadowbrook, ordered to report to prison April 29.

McCullagh violated federal safety laws by not issuing a safety harness to his employee and friend Mark T. Smith, then 52, of Northeast Philadelphia.

So, on June 21, 2013, when scaffolding gave way atop the Old Zion Lutheran Church in Philadelphia, there was nothing to save Smith, who fell 45 feet, bouncing off a lower roof, then bleeding and struggling for breath on the sidewalk. He died at a hospital.

McCullagh lied to inspectors and instructed his workers to lie as well, telling OSHA inspectors that they had been issued harnesses but that Smith had decided not to wear his.

It wasn’t true, and it never had been.

McCullagh’s was the first local case that officials in the U.S. Labor and Justice Departments could remember in which any criminal sanction – even for a process violation – was brought against an employer on a job-site death and only one of a handful brought nationally, a Labor Department spokeswoman said.

McCullagh pleaded guilty to six charges – five felonies in connection with the lying and one misdemeanor involving violating OSHA regulations. He had been a repeat violator.

On March 29, U.S. District Judge Nitza I. Quinones Alejandro sentenced him to 10 months for each felony and six months for the OSHA misdemeanor, all to run concurrently.

“I think [the McCullagh] case is emblematic,” Steinzor said. “Getting someone for lying to the agency.”

In Georgia and New Hampshire, prosecutors took a different approach, turning to state criminal laws to make manslaughter charges stick against employers whose gross negligence caused worker deaths.

In Georgia, film director Randy Miller, convicted of involuntary manslaughter in connection with the death of a film assistant, was released from jail last month, halfway through a two-year term.

Shooting Midnight Rider, a biographical film about the rock musician Gregg Allman, Miller ordered the crew set up on an active rail track and trestle, even though CSX had refused permission. When a train roared down the track on Feb. 20, 2014, Sarah Jones, 27, was killed.

In New Hampshire, the owner of a gunpowder manufacturing plant was not even in the state when his Black Mag gunpowder factory exploded in 2010, killing two employees.

That complicated matters for Coos County Attorney John McCormick, who still managed to win a conviction against Craig Sanborn for manslaughter and negligent homicide.

In December, the New Hampshire Supreme Court upheld Sanborn’s conviction, and he remains in prison, serving a 10- to 20-year term.

Sanborn acted recklessly, consciously disregarded a substantial risk,” McCormick said in an interview. “We’re not talking about a roofer or a run-of-the-mill factory. He was manufacturing gunpowder.”

Sanborn consistently ran afoul of inspectors. A state police bomb inspector denied Sanborn’s application to store 1,000 pounds of powder at the site, but Sanborn did it anyway.

McCormick said it was his decision, made in consultation with OSHA, and relying on its investigation, to press the Sanborn case on state court homicide charges.

So why didn’t a similar prosecution – more serious criminal charges carrying more significant jail time – happen in Philadelphia in the McCullagh case?

One complication is the thicket of state and federal agencies involved, each with separate goals and priorities and different laws to enforce.

In this case, the U.S. Labor Department and OSHA “determined that the referral to the Department of Justice [for possible criminal prosecution] was the appropriate course of action,” Labor Department spokeswoman Lenore Uddyback-Fortson said.

When McCullagh was indicted by federal prosecutors on June 9, 2015, the two-year statute of limitations on the state charge of involuntary manslaughter had nearly expired.

Through their spokespeople, U.S. Attorney Zane Memeger and Philadelphia District Attorney Seth Williams would not say whether the two law enforcement organizations had discussed the case, whether they considered a manslaughter charge, whether such a charge was appropriate, or, more broadly, whether there had been any talk of a routine assessment of how workplace fatalities should be treated.

The McCullagh case “would be a tough sell under negligent homicide,” said former federal prosecutor L. George Parry, a criminal-defense lawyer in Philadelphia, referring to an involuntary-manslaughter charge.

“That guy on the roof is assuming the risk,” he said. “He knows he’s up there without a safety belt, and he goes up.”

Rahke, the worker safety advocate with PhilaPOSH, doesn’t buy it.

People desperate for work may go along when employers put them in unsafe situations, even if they know better, she said.

Source – http://www.philly.com/philly/business/20160410_Prosecutors_make_new_efforts_to_jail_executives_for_workplace_deaths.html