Attorney had prior notice of Monaco photos

By Chris Dickerson | May 9, 2008




CHARLESTON, W. Va. (Legal Newsline) - A Princeton attorney said he was told in advance that photos showing West Virginia Supreme Court Chief Justice Spike Maynard and Massey Energy CEO Don Blankenship together in Monaco would become public as part of a motion in a Supreme Court case involving a $76 million verdict.

Michael Magann said Thursday he was called the weekend before the photos were filed with the state Supreme Court on Monday, Jan. 14.

The Maynard-Blankenship photos were filed as exhibits to a motion asking Maynard to recuse himself from rehearing a Massey appeal in a $76 million verdict in favor of Harman Mining, which had sued Massey for forcing it into bankruptcy.

"It was either Saturday or Sunday," Magann said. "I can't remember if he told me they would be appearing in the newspaper or if they were going to be filed with the Court, but he did call me." Magann is the ex-husband of Brenda Magann, who accompanied Maynard on the European vacation.

Magann said the call came from Al Karlin, president-elect of the West Virginia Trial Lawyers Association, a plaintiff's lawyers group that often butts heads philosophically with Blankenship.

Asked whether he told Magann about the photos before they became public, Karlin denied Magann's claim.

"I find it difficult to believe that Mr. Magann told you that," Karlin said Thursday. "I'm sorry. It's not true.

"If you want to accuse me of having something to do with the leaking of those photos, it's wrong. I'll make it perfectly clear that that is a false, untrue statement.

"You're on notice that you're talking about something that is not true. The suggestion that I had something to do with the release of those photos ... if you publish that, you will be publishing something that is not true."

Karlin wouldn't answer any other questions.

Earlier this year, The West Virginia Record submitted a Freedom of Information Act request for Justice Larry Starcher's telephone and fax records. Those records show Starcher calling or receiving calls from Karlin on his state-issued cell phone at least 18 times from Jan. 7 to Jan. 17.

"I'm not going to talk to you," Starcher said Thursday. Then, he hung up.

Starcher's cell phone records also show calls were exchanged from Jan. 7 to Jan. 17 with Huntington attorney and Supreme Court candidate Menis Ketchum at least 13 times, fellow Justice Joseph Albright's cell phone at least six times, law clerk Tom Rodd at least 30 times and law clerk Matt Crabtree at least seven times.

The fax records show Starcher sent a document to Karlin's law office at 3:20 p.m. on Jan. 14, shortly after the photos were filed with the Court.

Harman Mining attorney Bruce Stanley said his office received the photos anonymously before filing the motion for Maynard's recusal on Jan. 14. Stanley did not return calls to The Record seeking comment for this story.

Maynard and Blankenship are longtime friends and say they both were vacationing at the same place at the same time. Maynard provided documentation that showed he paid for his own trip but added that each might have bought the other a meal.

The November decision overturning a $76 million Boone County award against Massey was then examined, and the justices voted unanimously to rehear the case. Maynard decided to recuse himself from all pending Massey cases.

Justice Starcher, meanwhile, called for an investigation into the Maynard-Blankenship friendship. He had dissented sharply in the November decision. Court officials say they do not have the power to conduct such an investigation.

On Feb. 19, Starcher recused himself from the $76 million case and urged Justice Brent Benjamin to do the same. Benjamin was the beneficiary of the millions of dollars Blankenship spent on the 2004 campaign that unseated Warren McGraw.

Starcher has publicly called Blankenship "stupid" and "a clown," leading to a lawsuit filed by Massey against the Supreme Court with the goal of forcing Starcher to disqualify himself from all Massey cases.

"As a judge I am limited in my public comments, but I do have a constitutional right -- and, in fact, a duty -- to speak out on matters affecting the administration of justice," Starcher wrote. "And let me be clear about this: I believe Mr. Blankenship's conduct does have an effect on the administration of justice, in that it has become a pernicious and evil influence on that administration."

Supreme Court hopeful Bob Bastress, a law professor at West Virginia University, was quoted by The Associated Press as saying the Court had a problem, and Maynard's contention that he did not do anything wrong showed, "We have an even bigger problem."

Starcher, not running for re-election this year, called for a hearing to decide if he should recuse himself from a $240 million Brooke County verdict against Massey, but it never happened and he decided to stick with the case. In his filing, he noted that he was upset Benjamin did not follow his lead on the $76 million case.

In April, ABC News was in Charleston to film a piece on the Court that aired on "World News with Charles Gibson" and "Nightline."

According to ABC News, an interview with Blankenship got physical. He told a reporter, "If you're going to start taking pictures of me, you're liable to get shot," in the parking lot of an office in Kentucky.

ABC says tape of the incident shows Blankenship grabbing the camera and breaking its microphone. Reporter Asa Eslocker says Blankenship grabbed him around the collar with both hands.

Blankenship's attorney wrote to ABC, claiming, "Mr. Blankenship has been a frequent target for harassment and physical attacks over the years, so his reaction is not so surprising when you consider that he was approached unannounced by an intruder on private property."

Ultimately, the new vote on the $76 million case came out the same way -- 3-2 to overturn. The majority said it came down to a simple forum-selection clause in the disputed coal contract that required all gripes be brought in a county in Virginia.

The AP has sued Maynard to comply with a FOIA request, and a recent television ad sponsored by the Affiliated Construction Trades Foundation criticizes Maynard and Blankenship with a parody of the show "Lifestyles of the Rich and Famous." A hearing in that case is scheduled for May 12.

Last month, Starcher and Ketchum said their phone calls during January primarily concerned how Ketchum might run his campaign.

"I have spoken with Mr. Ketchum about who he might ask to help with his campaign, or talk with in a given community," Starcher said in a statement to The Record.

Ketchum echoed that comment.

"People didn't know me that well outside Cabell and Wayne counties," Ketchum said. "I was asking him for names of people in specific communities that I might contact and meet to introduce myself.

"I was making sure that he (Starcher) was not going to run for re-election," Ketchum said in early April. "He was my next-door neighbor in law school, and I did not want to run against a close friend."

The filing period to run for office was Jan. 14-26. Ketchum kicked off his campaign Dec. 12 during a press conference at the state Capitol, and he was the first Democratic candidate to file his candidacy papers for Supreme Court on Jan. 14.

At the Dec. 12 press conference, Ketchum said "Starcher will not run."

Last month, Ketchum addressed the issue that Starcher already had said he wouldn't be seeking re-election when the January phone calls were made.

"I kept hearing persistent rumors, no doubt fueled by political opponents, that Justice Starcher would change his mind and run for re-election," Ketchum told the Charleston Daily Mail. "These rumors were impeding my ability to attract support to my campaign."

Also last month, Ketchum dismissed claims that he and Starcher were behind the release of the photos.

"The first time I saw those photos were when they appeared in the newspaper," Ketchum said.

Ketchum told Huntington's The Herald-Dispatch newspaper for the Jan. 15 edition that there needed to be "a complete, open and transparent investigation" into the Maynard-Blankenship photographs.

From Legal Newsline: Chris Dickerson can be reached via e-mail at chris@wvrecord.com.

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