ABC News at Capitol for Supreme Court story

By Chris Dickerson
The Record

April 2, 2008

CHARLESTON – An ABC News team has been in Charleston this week, apparently working on a story involving the headline-grabbing state Supreme Court cases involving Massey Energy.

ABC investigative reporter Brian Ross was seen in Charleston on Monday, according to an article on the Republican Gazette [ http://www.getelephantwars.com/republicangazette.html ], a Web site operated by local Republican strategist Gary Abernathy.

On Monday, sources say Ross and his crew interviewed Justice Larry Starcher. On Tuesday, the team interviewed Chief Justice Spike Maynard after trying to talk to him in the parking lot as he made his way to his Capitol office. The news team also apparently tried to talk to Massey Energy CEO Don Blankenship.

Two Massey cases — one involving an appeal in a $76 million Boone County verdict favoring Harman Mining and the other in a $219.7 million Brooke County case favoring Wheeling-Pitt — have made plenty of headlines lately.

Earlier this year, Harman President Hugh Caperton submitted photographs of Blankenship and Maynard together in Monaco. Maynard has acknowledged he is a longtime friend of Blankenship’s and claimed the two coincidentally were vacationing at the same place at the same time and provided documentation that showed Massey did not pay for his trip.

Still, Maynard has recused himself from three cases involving Massey, including the Harman and Wheeling-Pitt appeals.

An ABC News spokesman confirmed Tuesday evening that a team is in West Virginia working on the story. He said he didn’t know when the segment might air, and he said he didn’t know which ABC News program or programs might air the story.

In a letter Wednesday to an ABC News executive, Maynard’s attorney encouraged the network to be “fair, scrupulous and accurate” in its coverage.

“I understand that ABC has interviewed critics and political adversaries of Justice Maynard on camera in the last day or two,” Charleston attorney Ben Bailey wrote to John Zucker, ABC News’ vice president of law and regulation. “Your employees have confronted other friends and acquaintances of his. You also interviewed him. Justice Maynard’s vacation in France has been the subject of much publicity, many of your questions and more speculation. The speculation has included unfounded and inaccurate accusations of legal and ethical improprieties.

“The reports I have received of ABC’s interviews give me concern about the fairness Justice Maynard can expect to receive. Before broadcasting, please carefully consider the credibility and motives of those who are criticizing him, the sources of their information, and the role they are asking ABC to play in this smear campaign.

“So many of us are so often disappointed in what passes for journalism these days; I hope you will surprise me. And I hope you won’t have to hear from me again.”

Ross and his investigative team have been in West Virginia before working on mine-related stories. He covered the Sago tragedy [ http://abcnews.go.com/Primetime/Mine/story?id=1476409 ] and did stories on Blankenship and the Aracoma mine tragedy [ http://blogs.abcnews.com/theblotter/2006/11/mine_deaths_bla.html ] in 2006.

The Republican Gazette said “anti-Maynard” forces apparently have been pushing the story with national media outlets.

“Starcher has taken the lead publicly on the matter, his latest adventure being to announce an unprecedented one-man hearing on April 10 to consider arguments on whether he should recuse himself from a Massey-Wheeling Pitt case,” the Republican Gazette reported April 1. “It will be shocking if Starcher does not end up being a major component of any story produced by ABC.”

The site notes that Maynard is in the middle of a hotly contested re-election campaign.

“Of course, the entire episode revolves around the fact that Maynard is up for election this year, and liberal trial lawyer and labor forces are aghast at the possibility of the high court being moved even further from their longstanding control,” the Republican Gazette reports.

The two Massey cases have been in the news for months.

Massey has asked Starcher on numerous occasions to recuse himself from its cases. In the past, Starcher has referred to Blankenship as “stupid” and “a clown.” He also has criticized Blankenship for supporting Justice Brent Benjamin in his 2004 election over Warren McGraw.

Starcher did step down from the Harman case, and has scheduled a unique April 10 oral hearing to consider a recusal request in the Wheeling-Pitt case.

Blankenship has sued the state Supreme Court in federal court in an effort to have Starcher removed from all his cases.

In his recusal motion in the Harman case, Starcher also urged Benjamin to step down from Massey cases. Benjamin has refused to do so, writing that disqualification motions concerning him have focused on the 2004 election instead of his record on the bench.

“There are no allegations that this Justice has or has had any relationship with Mr. Blankenship or any party in this litigation, or that he ever represented Mr. Blankenship or any Massey company in his 22-plus years of private practice,” Benjamin wrote earlier this year. “Nor is this Justice aware of any basis by which this Justice should disqualify himself.”

In a February brief, Benjamin wrote that several state officers, such as Attorney General Darrell McGraw (the brother of Warren McGraw, whom Benjamin defeated in the 2004 election) and Department of Environmental Protection Secretary Stephanie Timmermeyer have not asked for Benjamin’s recusal in their cases involving Massey.

“Simple conclusory accusations and assumptions are plainly insufficient to support a motion for disqualification,” Benjamin said. “To interpret the term ‘impartiality might reasonably be questioned’ in such a subjective and partisan manner as the movants seem to suggest, particularly after this Justice voted in the majority against their legal positions in this case, would create a system where there would be almost no limit to recusal motions and popularly elected courts of this State would be open to ‘judge-shopping’ under the guise of litigation strategy.”

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