By Wendy Holdren
Former Upper Big Branch mine superintendent Gary May, who is serving a 21-month sentence for conspiracy in the April 2010 explosion, has filed a motion for his sentence to be corrected because he says his attorney had a conflict of interest.
May was sentenced in January to 21 months in prison, three years supervised release and a $20,000 fine after pleading guilty in March 2012 to conspiracy to defraud the federal government, including disabling a methane gas monitor and falsifying records. He also admitted to giving prior notice when mine safety crews were coming for an inspection.
May is asking the court to consider that his defense counsel, Tim Carrico, may have been “constitutionally ineffective because of a conflict of interest” because Carrico was retained by Massey and Massey’s criminal liability could have been impacted by his (May’s) testimony.
He also said in the motion that he believes Carrico, Alpha’s corporate counsel Phil Monroe and former Massey owner Don Blankenship’s long-time attorney Tammy Harvey conspired to make him “a villain” and an “easy scapegoat.”
“Remembering the deadly, tragic circumstances preceding May’s information, it is easy to understand why the government was looking for a villain upon which to blame the deaths of the 29 miners,” the motion stated.
“Although May was the only Massey employee to fully cooperate with federal investigations, the public and Massey found his actions to speak volumes. He became an easy scapegoat for the U.S. Attorney’s Office to relieve public pressure with a conviction and became a sacrificial lamb for Massey and its corporate successor Alpha.”
According to the motion, Massey Energy hired Carrico to defend May against the post-explosion federal charges, and that arrangement was continued after Alpha Natural Resources purchased Massey in June 2011.
“During the representation of May, Carrico was in constant communication with Alpha’s corporate counsel, Phil Monroe,” the motion stated.
“Carrico would not allow May to testify at the plea hearing about Massey Energy’s company and Chris Blanchard’s (Massey president under owner Don Blankenship) policy directing May, along with more than 100 other employees, to provide advance notice of mine inspectors’ presence.”
The motion stated, “Harvey had strategic input and apparently drafted May’s pleadings for Attorney Carrico while representing Don Blankenship and Alpha Natural Resources.”
An e-mail correspondence, dated June 12, 2012, from Monroe to Carrico, which was filed along with the motion, said: “I did speak with Tammy (Harvey), and what we are going to do is have you represent Gary. Behind the scenes, Tammy will likely prepare most of the pleadings since they need to be consistent and have you review and sign off if they are appropriate.”
May said during private conversations, he was advised not to testify about Massey’s corporate policy of advance notice.
“May assumed he would have another opportunity to divulge this information but this never occurred,” the motion said. “May was told ‘it’s not a good time to bring this up.’”
May also said he told Carrico several facts in the information were incorrect, namely facts about the deactivated methane monitor, which he said by federal regulations was not within the “working place.”
“May was advised that because he was no longer being charged with disabling the monitor that it didn’t matter,” but the motion added, “the court used those erroneous facts against May within the sentencing hearing.”
Carrico failed to object to the sentencing or try to have it changed because he was it was a part of “his and his co-counsels’ strategy to protect Alpha and Blankenship by making May the fall guy,” the motion said.
“The public and the families of the mine explosion had someone to blame.”
May said his Sixth Amendment rights have been violated, as he did not have a “conflict free” counsel.
He mailed the motion to the Beckley U.S. District Court from the Federal Correctional Institution at Morgantown.
This motion was filed Aug. 30, and an amendment was filed Sept. 11, stating that Tammy Harvey is married to attorney M. Shane Harvey, who is vice president and general counsel for Alpha Natural Resources.
“This husband-wife relationship further muddies the conflict of interest waters as they relate to defendant May,” the amendment said. “The appearance of impropriety further taints the public’s perception of justice and fair play and makes one question just whose interests the Carrico, Monroe, Harvey, Harvey defense team were actually defending.”
In the amended complaint, May asks the court for specific performance to vacate, set aside or correct his sentence and to convict him of one misdemeanor and sentence him to time served.
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