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With primary weeks away, Blankenship seeks to have conviction thrown out

Less than three weeks before West Virginia’s primary election, former Massey Energy CEO Don Blankenship on Wednesday asked a federal judge to throw out his criminal mine safety conviction.

His lawyers raised in court the same complaints about that conviction that are the focus of Blankenship’s campaign to win the Republican nomination for U.S. Senate.

In a motion that Blankenship’s campaign has been telegraphing for weeks, a new team of attorneys than those who handled his trial 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 following the April 2010 explosion that killed 29 miners at Massey’s Upper Big Branch Mine, in Raleigh County.

“The conviction of Mr. Blankenship that resulted from this terribly flawed process cannot stand,” the motion states. “The newly discovered evidence, withheld by the prosecution until after trial, would have tipped the balance in Mr. Blankenship’s favor.”

While his new lawyers describe a “mountain of undisclosed information” that they say is “staggering,” the motion filed Wednesday morning calls special attention to previously undisclosed memos describing FBI interviews with two of the government’s main witnesses against Blankenship: Chris Blanchard, then the president of the Massey subsidiary that operated Upper Big Branch, and Bill Ross, a longtime federal mine ventilation expert who joined Massey and later warned Blankenship prior to the explosion about serious safety problems at the mine.

The memos themselves might be previously undisclosed, but the central issues discussed were the subject of extensive testimony, including lengthy cross-examinations at trial by Blankenship’s defense team.

For example, while the government presented evidence about Massey’s failure to increase staffing levels at Upper Big Branch to try to fix a growing number of safety violations, the motion cites one memo that indicates Blanchard told investigators prior to the trial that “no amount of money or resources ... could take care of all violations at a mine.”

During cross-examination by then-Blankenship lead defense attorney Bill Taylor, Blanchard testified about those issues, at one point agreeing with Taylor that violations are “inevitable” at any coal mine.

In the case of Ross, Blankenship’s campaign and the new legal motion make much of a memo that indicates Ross was concerned about Upper Big Branch’s ventilation system, and complained that U.S. Mine Safety and Health Administration requirements for that system had the operation “set up to fail.”

During the trial, Ross testified about his disagreements with MSHA over the mine’s ventilation system, describing his “desperation” about the matter and “begging” agency officials to relent to Massey’s proposals for ventilating the mine. While U.S. District Judge Irene Berger had ruled some of those issues out of bounds at the trial — saying Blankenship could not base his defense on an argument that he disagreed with federal mine safety laws — testimony on the subject was, nonetheless, repeatedly allowed.

Blankenship remains on supervised release until May 9, the day after the primary election. While Blankenship, 68, is seeking a Senate seat from his native West Virginia, his release is being managed by federal court officials in Las Vegas, which Blankenship and his lawyers repeatedly have said is now his home.

In December 2015, after 24 days of testimony, a federal jury convicted Blankenship of conspiracy to violate federal mine safety and health standards. 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.

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, and 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 motion to vacate his conviction was filed on Blankenship’s behalf by lawyers from the Richmond, Virginia, firm of McGuireWoods and the Charleston office of Dismore & Shohl. The Washington firm of Zuckerman Spaeder and Charleston’s Spilman, Thomas and Battle represented him at trial and during Blankenship’s appeals. They are not part of the motion to vacate.

A news release issued Monday by Blankenship’s Senate campaign said his new lawyers “tell him that they expect the case will likely be nullified or dismissed or whatever legal term is appropriate.”

Blankenship’s trial and appellate lawyers had indicated in a U.S. Supreme Court petition filed in late May 2017 that they had received “dozens” of previously undisclosed documents from the government “in the weeks” following a January 2017 decision by the 4th U.S. Circuit Court of Appeals to uphold Blankenship’s conviction. The new motion indicates that the defense team had first received those documents on Jan. 31, 2017 — while Blankenship was still in prison and had at least three months left on his sentence.

The issue of these previously undisclosed documents was not raised as a legal argument in Blankenship’s 4th Circuit appeal or his Supreme Court petition, and his defense team did not file any motions about it with Berger until Wednesday’s filing.

“This is, obviously, a political Hail Mary,” said former Assistant U.S. Attorney Steve Ruby, who was the lead prosecutor in the Blankenship case. “He’s three weeks from an election, and it sounds like he’s behind in the polls. If there were any merit to this whatsoever, he’d have filed it while he was still in prison, instead of waiting almost until Election Day.”

Ruby, now a Charleston lawyer, added, “The jury convicted him more than two years ago, after an exhaustive and fair trial. I haven’t had a chance to read the entire motion yet, but I didn’t see anything that he didn’t put in front of the jury as part of his defense. It’s just a shame that he continues to treat this as a political football.”

On Wednesday, Blankenship’s new attorneys also filed a motion asking Berger to give them more time to submit a legal brief in support of their motion to vacate his conviction. They said they are awaiting the results of an investigation by the Justice Department’s Office of Professional Responsibility that they believe might provide additional information vital to their case.

A spokeswoman for U.S. Attorney Mike Stuart said Stuart “has made a deliberate decision not to comment on this matter.” Stuart was sworn in as the district’s top federal prosecutor in January. He was chairman of President Donald Trump’s campaign in West Virginia, and was chairman of the state Republican Party from 2010 to 2012.

The Trump administration did not back Blankenship’s appeal of his conviction, instead filing a legal brief that successfully urged the Supreme Court not to consider the case.

Investigations by MSHA, the Governor’s Independent Investigation Panel, led by longtime mine safety advocate Davitt McAteer, the West Virginia Office of Miners Health, Safety and Training, and the United Mine Workers union agreed that the mine disaster was caused by a longtime pattern of safety violations by Massey and by Blankenship’s insistence that the company put coal production and profits ahead of safety protections for miners.

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

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