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The Associated Press October 19, 2011, 2:28PM ET

Trial judge OKs mention of deadly W.Va. mine blast

The first criminal trial to emerge from last year's Upper Big Branch coal mine explosion can include mention of the disaster that killed 29 men, but within reason, the presiding federal judge has ruled.

U.S. District Judge Irene Berger denied a request from Hughie Elbert Stover's defense team to keep the nation's deadliest coal mine blast in decades out of his trial on charges of trying to obstruct the ensuing investigation. She also rejected a defense bid to exclude his statements to investigators following the April 2010 explosion.

With Stover's trial set to begin Monday in Beckley, Berger's Tuesday ruling does bar evidence involving the mine's security officers. Prosecutors had argued it would unfairly tar several of their potential witnesses.

Stover was chief of security at Performance Coal, then a subsidiary of Massey Energy Co. that operated Upper Big Branch, when a methane- and coal dust-fueled blast ripped through the Raleigh County mine. The disaster killed 29 miners and injured two others, and its cause remains the subject of criminal and civil investigations.

The 60-year-old was indicted earlier this year on charges of ordering a subordinate to throw out thousands of pages of security-related mine documents in January. Stover meant to impede the ongoing probe by destroying the records, which investigators salvaged from an on-site trash compactor, that count alleges.

Two other counts allege Stover lied to investigators during a Jan. 21 interview and while answering questions under oath during an out-of-court Nov. 30 proceeding. Stover allegedly sought to conceal that he instructed the mine's security guards to announce by radio when federal inspectors were on the property. Federal law forbids such advance warnings of spot mine safety checks. Stover had told investigators that mine policy barred this illegal practice, and that he would have fired any guard who violated it, the indictment alleges.

Defense lawyers stressed that the charges do not accuse Stover in the deaths of the 29 miners, or of any negligent or intentional act linked to the disaster.

"There is a deep disconnect between what this case is about and what the Government would like it to be about," the defense argued in its pleading, adding that "Any evidence referring to the mine incident or the resulting loss of life would be unfairly prejudicial and has no relevance to the charges in the indictment against Mr. Stover."

Berger concluded that the explosion is relevant "for many reasons," including the role Stover and his alleged actions have played in the ensuing investigations.

"When making a decision, the jury would be puzzled by the gaps in the story if evidence of the explosion at UBB were excluded," she wrote of one reason, continuing that "Ultimately, if the Court were to exclude evidence of the explosion at UBB, this would unfairly distort the case."

Berger added that she plans to explain the disaster's context within the case to the jury.

"The Court does, however, warn the Government that unnecessary, graphic and irrelevant details of the UBB explosion will not be admitted into evidence," her order also said.

As for Stover's statements, Berger shot down defense arguments that he believed he was in custody and so should have been read his Miranda warning against self-incrimination. While subpoenaed to appear at the Nov. 30 deposition, the judge noted that Stover had a lawyer with him and no law enforcement officers were there. An FBI agent helped conduct the Jan. 21 interview, but Berger concluded that Stover could have stopped answering questions and left at any time. She also wasn't swayed by arguments that the November subpoena was not valid.

The excluded evidence targeted by prosecutors included a survey filled about by mine guards when they're hired, apparently used to measure the applicant's honesty and integrity. Prosecutors also successfully argued to keep out dated juvenile and misdemeanor charges in the record of one of its potential witnesses.

Those who interviewed Stover on Nov. 30 include J. Davitt McAteer, appointed by then Gov.-Joe Manchin to investigate the disaster alongside state and federal officials. Head of the U.S. Mine Safety and Health Administration during the Clinton administration, McAteer concluded in May that Massey recklessly ignored basic industry safety practices at Upper Branch. His report also faulted federal and state regulators for failing to recognize ventilation, coal dust and other problems at the mine.

Stover's lawyers note that Massey had alerted investigators to the trashed documents. Alpha Natural Resources of Abingdon, Va., acquired the Richmond-based Massey in June through a $7.1 billion takeover deal.


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