Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, March 30, 1994                   TAG: 9403300102
SECTION: VIRGINIA                    PAGE: C1   EDITION: METRO 
SOURCE: MICHAEL STOWE STAFF WRITER
DATELINE: ABINGDON                                LENGTH: Medium

DISMISSAL URGED IN COAL MINE CASE JUDGE DELAYS TRIAL OVER 1992 DEATHS

The Wise County company and two of its supervisors - mine superintendent Freddie Carl Deatherage and night-shift foreman Kenneth Ray Brooks - were charged in January in a 31-count indictment.

Federal and state investigations have determined that a buildup of methane gas, ignited by a cigarette lighter carried into the mine by one of the victims, caused a deadly blast Dec. 7, 1992.

The investigators allege that a series of mining law violations led to the buildup of methane gas and that company records were falsified to cover up the violations.

A May trial had been scheduled, but U.S. District Judge Samuel Wilson delayed it until Oct. 17 to give defense attorneys more time to prepare. Wilson held a three-hour hearing Tuesday to hear arguments on some of the more than 61 motions that have been filed in the case.

In addition to numerous motions asking for a dismissal, defense attorneys asked Wilson to move the trial and try the defendants in three separate cases.

Henry Chajet, one of the coal company's three attorneys, said the case should be dismissed or delayed because some of the new mining regulations, put in place in 1992, are being challenged in a Washington, D.C., Circuit Court of Appeals case.

"We could go through this trial and the very next day these regulations" could be shot down, he argued.

Assistant U.S. attorney Tom Boundurant countered that the regulations being challenged in Washington by the American Mining Conference have nothing to do with the Southmountain case.

"But if they do, so what," he added.

Boundurant pointed out that there is always an on-going appeal of the death penalty, but that doesn't prevent judges from imposing that sentence.

In a separate motion, Chajet said the charges should be dismissed because a recent U.S. Supreme Court decision in a civil case gave the federal Mine Safety and Health Review Commission "exclusive jurisdiction to determine violations."

Wilson disagreed, saying the Supreme Court case "doesn't have any jurisdiction whatsoever for criminal cases."

Wilson took the motions for dismissal under advisement and will rule in the next few weeks.

Warren Upton, another Southmountain lawyer, asked Wilson to move the trial to Danville because he did not believe the coal company could find an impartial jury in Southwest Virginia.

Attorneys for Deatherage and Brooks, however, asked that the trial, expected to last two weeks, be moved to Big Stone Gap, the federal courthouse closest to where the mine explosion happened. It is unlikely that either will happen, Wilson said.

"I'm going to conduct this trial where it is going to be most comfortable for everyone involved," he said.

While the trial likely will be held in Abingdon, Wilson said he would like the jurors to come from Big Stone Gap and thinks an impartial jury could be found there.

"It never ceases to amaze me the number of people who have no knowledge or recollection of what goes on in the federal courts or just in Southwest Virginia," the judge said.

Keywords:
FATALITY