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DOJ probe: No exculpatory evidence withheld from Blankenship

A U.S. Department of Justice review has found that government lawyers did not withhold from Don Blankenship any information that was material to the outcome of the trial where the former Massey Energy CEO was convicted of conspiring to violate mine safety and health standards at Massey’s Upper Big Branch Mine, where 29 miners died in a 2010 explosion.

The 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.

The DOJ has not made public complete reports of the investigation by its Office of Professional Responsibility and an appeal report by the agency’s Professional Misconduct Review Unit. The investigation was prompted by a complaint filed by Blankenship against then-U.S. Attorney Booth Goodwin and then-Assistant U.S. Attorney Steve Ruby.

But a copy of a Tuesday letter to Blankenship’s defense team from Jeffrey Ragsdale, deputy counsel for the Office of Professional Responsibility, also was sent to Goodwin, who provided the letter to the Gazette-Mail. Ragsdale referred questions to the DOJ’s Office of Public Affairs, where spokesman Wyn Hornbuckle declined to comment.

Tuesday evening, Blankenship issued a news release that said the Justice Department probe had found the prosecutors “committed professional misconduct,” but provided no details about those findings. Blankenship’s statements alleged that prosecutors had violated his “constitutional rights and fundamentally denied him a fair trial,” but included no quotations or references to any finding to that effect by the DOJ.

“Once again, criminal convict Don Blankenship lies, misrepresents the facts and seeks to deflect blame for his criminal conduct,” Goodwin said in a prepared statement Wednesday. “Convict Blankenship’s rights were not violated.”

Ruby said Blankenship’s statements on the DOJ probe “should be seen as nothing more than a desperate Hail Mary from a failed politician running on his own ballot line after losing badly for the Republican nomination.”

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. Federal mine safety law makes violating safety standards — or conspiring to do so — a misdemeanor. Various bills aimed at making it a felony, with more serious penalties, have been stalled for years in Congress. Blankenship was acquitted of felony charges that he had conspired to thwart MSHA inspections and that he lied to investors and securities regulators about Massey’s safety practices.

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 DOJ.

In May, Blankenship lost the Republican primary race to challenge Sen. Joe Manchin, D-W.Va., and is now continuing to try to get 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.

With a new team of lawyers from those who handled his trial, Blankenship in April had filed a motion in federal court seeking to have his conviction thrown out.

Among other things, Blankenship alleges that prosecutors withheld from the trial defense team 61 memos describing FBI interviews, including several with two of the government’s key witnesses. Blankenship’s lawyers have not yet filed a legal brief outlining their arguments, and received additional time to do so while they pursued getting copies of documents about the DOJ investigation of Blankenship’s complaint against prosecutors.

In his letter to Blankenship attorney Benjamin Hatch, Ragsdale said the DOJ had concluded that “some” of the undisclosed FBI interview memos contained statements that were required to be disclosed to the defense but that neither Ruby nor Goodwin withheld those statements “with the intent of preventing the defense from obtaining those statements.” Ruby exercised “poor judgment” by not disclosing statements made in 11 pre-indictment interviews, but “acted appropriately” when he followed Goodwin’s direction not to disclose 50 post-indictment memos, the letter from Ragsdale said.

The DOJ found that Ruby and Goodwin “recklessly violated” a 2010 department policy that requires prosecutors to “develop a process for review of pertinent information to ensure” that information that must be turned over to the defense is identified. The Ragsdale letter said Goodwin and Ruby used a “process” that “relied on their memory” of what was said during interviews — some occurring months before — to decide what documents needed to be provided to the defense.

“That process was deficient and resulted in the failure to disclose discoverable statements contained in numerous post-indictment [memos],” the Ragsale letter said. “Because Ruby and Goodwin recklessly violated the department’s discovery policies regarding the disclosure of discoverable statements, they committed professional misconduct.”

But, the DOJ also “found insufficient evidence” to conclude that, by not turning over the 61 FBI memos, Ruby and Goodwin violated the mandates of “Brady v. Maryland,” the 1963 U.S. Supreme Court case that requires prosecutors to disclose information “that tends to negate the accused’s guilt,” the letter said. Such violations occur when “a defendant is prejudiced by the failure to disclose,” the letter said.

Ragsdale’s letter said that Blankenship’s defense team at trial — “the entity in the best position to explain whether, how, and to what extent the defense was prejudiced by the government’s failure to disclose” the FBI memos — “explicitly declined OPR’s request to provide it with that information.” Prosecution team members “credibly told” the OPR that statements in the 61 memos “were not only available to the defense from other sources, but were in fact used during the defense’s cross-examination of government witnesses,” the letter said.

Asked to comment on the DOJ’s finding of no “Brady” violations, Blankenship said in an email that the finding represented, “Simply more government corruption.”

Ruby said, “I am proud of the work we did for the people of the United States. We presented the evidence and a jury of his peers found Don Blankenship guilty of conspiring to violate mandatory mine safety and health standards at UBB at the time of the explosion.

“His conviction was unanimously affirmed on appeal,” Ruby said. “After an investigation of more than two years — one that Blankenship requested — OPR found no Brady violation, no legal violation, and no violation of any rule of professional conduct. The only negative finding as to me was an unintentional violation of an internal DOJ memo from 2010 — with no finding that it affected the outcome of the case or violated a rule of professional conduct. While I disagree with OPR’s conclusion relating to the 2010 internal DOJ memo, it is clear from OPR’s report that the prosecution team fully operated within the bounds of federal and state laws.”

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

Funerals for Monday, November 18, 2019

Blackwell, Emily - 5 p.m., Coonskin Clubhouse, Charleston.

Buhl, Dolores - Noon, Our Lady of the Hills Catholic Church, Pinch.

Carr, Charles - Noon, St. Paul Missionary Baptist Church, St. Albans.

Cobb, James - 1 p.m., Siniaville Cemetery, Statts Mills.

Duncan, Maxine - 1 p.m., Chapman Funeral Home, Hurricane.

Evans, Anita - 1 p.m., Tyree Funeral Home, Mount Hope.

Hedrick Sr., Judson - Noon, Stevens & Grass Funeral Home, Malden.

Honeycutt, Amanda - 2 p.m., Osborne Cemetery, Craddock Fork, Lake.

Jarrell, Michael - 1 p.m., Greene - Robertson Funeral Home, Sutton.

Karnes, Shirley - 2 p.m., Gatens-Harding Funeral Home, Poca.

Stone, Penny - 2 p.m., Roush Funeral Home, Ravenswood.

Wilmoth, Patricia - 7 p.m., Stump Funeral Home & Cremation Inc., Grantsville.