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Documents revealed in Blankenship bid to have conviction tossed

Don Blankenship

In this April 6, 2010 file photo, Massey Energy Co., CEO Don Blankenship speaks to reporters in Montcoal, following the Upper Big Branch Mine explosion.

Former Massey Energy CEO Don Blankenship’s defense was not prejudiced by the failure of federal prosecutors to turn over some investigation documents prior to Blankenship being convicted of conspiracy to violate mine safety and health standards, according to a report of an internal U.S. Department of Justice investigation that was made public for the first time this week.

The report from the DOJ’s Office of Professional Responsibility confirms previously reported findings that were outlined in a letter summarizing the final conclusion of the DOJ probe following an appeal of the original department findings by former U.S. Attorney Booth Goodwin and former Assistant U.S. Attorney Steve Ruby. The two prosecuted Blankenship following the deaths of 29 coal miners in an April 2010 explosion at Massey’s Upper Big Branch Mine, in Raleigh County.

It was made public by Blankenship’s new legal team in a filing Thursday in the case, pending in U.S. District Court in Beckley, in which Blankenship is seeking to have his criminal conviction vacated.

A collection of documents had been filed under seal on Sept. 5 in that case, but U.S. Magistrate Judge Omar J. Aboulhosn had questioned the secrecy in an order issued the following day. In Thursday’s filings, Blankenship’s lawyers said the Justice Department had agreed to having certain documents released publicly. Still, more than a dozen documents that were attached to Blankenship’s original sealed filing were not among those made public.

The newly released records include a legal memo in which Blankenship’s lawyers outline their arguments in support of his original motion to have his conviction vacated. The lawyers note, among other arguments, that the DOJ’s internal investigation findings “are not binding on this court.” Blankenship’s lawyers argue that federal prosecutors and the U.S. Labor Department did not turn over hundreds of pages of documents that would have been helpful to the defense in the case brought against Blankenship.

“Justice is supposed to be available to all, but the obstructions the government has erected at every turn of this case would have daunted and bankrupted most hard-working Americans long ago,” the newly released legal brief states. “As it is, Don Blankenship has been put to extraordinary expense — and even more significantly, been labeled a criminal and served time — to pursue what the government’s own policies and the Constitution say he should have received for free before his trial.”

The Justice Department’s review found “insufficient evidence” to prove that prosecutors committed violations of rules that required them to turn over to Blankenship’s defense lawyers any evidence that was material to his guilt or innocence. Department investigators did find “professional misconduct” by the prosecutors, saying that they did not comply with an internal DOJ policy regarding the process for determining what records should be provided to the defense, according to a summary of the agency’s conclusions. While certain DOJ memos themselves might be previously undisclosed, the central issues discussed were the subject of extensive testimony, including lengthy cross-examinations at trial by Blankenship’s defense team.

Goodwin and Ruby led a prosecution team that secured a December 2015 jury verdict convicting Blankenship of conspiracy to violate federal mine safety and health standards, in a rare case of prosecuting a corporate CEO for workplace safety violations. While he was not charged with causing the Upper Big Branch explosion, the accusations against him focused on rampant violations of longstanding safety rules — mine ventilation, dust suppression and roof control — that have been known for decades to prevent deadly underground blasts like the one that occurred at UBB.

U.S. District Judge Irene Berger sentenced Blankenship to one year in prison and a $250,000 fine, the maximum allowed under the law. The conviction was upheld by the 4th U.S. Circuit Court of Appeals. The U.S. Supreme Court declined to consider a further appeal, a decision that was supported by the Trump administration’s DOJ.

In May, Blankenship lost the Republican primary race to challenge Sen. Joe Manchin, D-W.Va., and then the state Supreme Court refused to allow him on the November ballot as a candidate of the Constitution Party. A central plank of Blankenship’s campaign has been arguing that he was wrongly convicted.

Among other records made public this week was Blankenship’s motion to have a public evidentiary hearing on his effort to have his conviction vacated.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702, or follow @kenwardjr on Twitter.

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