It will be some time before investigations into the Upper Big Branch coal mine explosion conclude, but local emotions are running high, and there has been a public outcry for criminal charges for the deaths of 29 miners. We spoke to Kristen Keller, the West Virginia state prosecutor in Raleigh county, where the mine is located, about the potential and difficulties of a criminal case in a disaster of this type.

InsideCounsel: Is this the type of situation where you would possibly go after individual executives?

Kristen Keller: I’m getting a lot of calls and letters. It worries me a little bit whenever people demand a quick criminal prosecution. I don’t think it enters their mind that we don’t know who, if any human being, is to blame here.

IC: What course will the various investigations take?

KK: The U.S. Attorney, Chuck Miller, will review all information gathered from Mine Safety and Health Administration’s investigation. I’ve also been assured by the governor’s office and the West Virginia State Police that if the investigation that the governor has ordered develops evidence of a violation of criminal statutes, then the state police would investigate and I would be notified. I’ll also be notified if MSHA’s investigation turns up any violation of state laws.

In any case, if there is evidence to support a criminal prosecution, then we would do so.

IC: How do you determine who will take the lead on a criminal prosecution?

KK: There are times when we have a case that could be a violation of either the federal or state law. Sometimes we’ll ask the federal folks to take it, and other times they’ll ask us to take it. We look at whether or not the evidence fits the elements, under either the federal statute or a state statute, and then we look at the possible penalties.

For example, they never take state murder prosecutions, because we have life without parole. But this would be a case where because West Virginia’s manslaughter penalty is low–many states have a more substantial penalty–if whatever constituted negligent homicide also constituted a federal mine safety violation, then I would hope that the U.S. Attorney’s office would take the prosecution.

IC: Are cases like this difficult to prosecute there?

KK: In West Virginia, although this statute is called negligent homicide or involuntary manslaughter, our state’s supreme court has interpreted that to mean more than mere negligence. We have to show a reckless disregard for human life. It’s very close to the standard of proving second-degree murder.

The other problem with the state prosecution is depending on how long the investigation takes, we have a one year statute of limitation on the negligent homicide because it’s a misdemeanor. Felonies we have no statute of limitation.