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29 Dead: Who Knew?

Every day, just after 5 p.m. eastern time, Don Blankenship exits the federal courthouse for the Southern District of West Virginia flanked by four lawyers. And when he does, a parade of cameras is there to catch to his every move. The former chief executive of Massey Energy is now on trial — one of a handful of top chieftains from publicly-held companies to have ever faced a jury.

He’s charged with three criminal counts: one count of conspiracy to commit workplace safety violations and two counts securities fraud violations . If convicted, he would be eligible for 30 years in prison. It’s all tied to an underground mining explosion in April 2010 when 29 miners got trapped, and died.

No one is criminally charged for their deaths. But the question is whether those in the chain of command — from the mining supervisors to the top corporate suite — could have foreseen the possible risks. Prosecutors charge that the conspiracy leads to Blankenship while Blankenship said that he ran a $6 billion corporation — and that the delegation for such safety was left to the supervisors on site.

“Whether ‘the company’ knew about a problem is never the right question to ask,”  says Peter Sandman, a risk communications consultant in New York City, in a previous phone interview. “Companies don’t know. People know. You always need to ask exactly who knew. And then you need to ask who they told. And then comes the most important question: Does the corporate culture encourage people to push this kind of bad news up the hierarchy, or is the message to keep it to yourself and give the bosses plausible deniability.”

Exactly. And the answer, in the case of Massey, differs as to whom is asked these questions: Prosecutors want jurors to believe that absolutely no decisions were made without Blankenship’s involvement while the defense has gotten supervisors to admit that their concerns over safety had only been shared with the individuals directly above them.

As early as this week, the prosecution’s star witness — Bill Ross, a safety expert personally hired on by Blankenship — will testify about the safety concerns he had. He thoughts are presented in a detailed memo in June 2009, or about 10 months before the deadly accident.

To this end, Blankenship responds less than a month later that this would be a “terrible document to be in discovery,” if an accident were to occur. The defense, however, will say that the chief executive is the one who hired Ross and that this comment came shortly after getting the document containing his thoughts — and that the company was on its way to addressing his concerns by April 2010.

Understandably, the only thing that matters right now to Blankenship is winning this criminal case. But clearly, if he had to do it all over again, he would do everything he could on the front end to avoid the type of accident in which those miners died.

And even if a company stresses safety and employee contentment above other concerns