You are the owner of this article.

Federal magistrate recommends tossing Blankenship conviction

Don Blankenship

Don Blankenship leaves the Robert C. Byrd U.S. Courthouse in Charleston in November 2015.

A federal magistrate on Monday recommended that the criminal mine safety conviction of Don Blankenship be thrown out, handing the former Massey CEO a procedural — but not final — victory.

While a jury convicted Blankenship of the misdemeanor in 2015, he has since argued the federal government did not hand over certain exculpatory evidence during the discovery phase of the trial.

Though Blankenship completed a one-year sentence in federal prison, he has sought to dismiss the conviction, arguing it cast “an ongoing cloud” over his professional and personal life.

“Based upon the undersigned’s summary of the suppressed evidence and the evidence presented by the United States to secure [Blankenship’s] conviction, the undersigned does not have confidence in the verdict,” Aboulhosn wrote.

The 60-page writing is only a recommendation to U.S. District Judge Irene Berger, the trial judge in Blankenship’s case. It is not a final order.

Blankenship was convicted in December 2015 of conspiring to violate federal mine safety and health standards at the Upper Big Branch Mine in the months prior to the 2010 explosion that killed 29 miners.

Blankenship wasn’t charged with or convicted of causing the deadly explosion. But the allegations against him focused on a variety of violations, such as inadequate ventilation and the failure to clean up coal dust, that multiple investigations concluded caused the worst coal-mining disaster in a generation.

Following the conviction, federal prosecutors sent over scores of documents including reports on witness interviews and government documents that Blankenship’s lawyers say should have been provided before the trial. The documents include write-ups of witness interviews and MSHA documents.

Aboulhosn emphasized in his opinion that the evidence does not vindicate Blankenship, only that it could have resulted in a different verdict. The word “could” is in boldface and underlined in the order.

The federal magistrate rebuked any theory that then-U.S. Attorney Booth Goodwin or Assistant U.S. Attorney Steve Ruby acted in bad faith in charging and prosecuting evidence.

He referred to Blankenship’s claims that his prosecution was politically motivated as “vitriolic rhetoric” not supported by “a scintilla of evidence” that Ruby or Goodwin, who led the prosecution, acted in bad faith or with malice toward Blankenship.

“A detailed and thorough review of the evidence in this case clearly shows that, while errors were made and that those errors, while collectively reviewed, could have resulted in a different verdict, the undersigned did not find that the actions taken by the United States were malicious or done in bad faith,” Aboulhosn wrote.

Regarding those errors, Aboulhosn said given how the case against Blankenship relied on numerous citations from MSHA against Massey Energy, testimony concerning inadequate mine staffing, and testimony that Blankenship emphasized coal production over safety, the withheld documents could have been important to Blankenship’s defense — and therefore should have been turned over.

Among the documents were previously undisclosed memos that detailed FBI interviews with two of the government’s main witnesses against Blankenship: Chris Blanchard, then 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 before the explosion about serious safety problems at the mine.

Aboulhosn’s recommendation states that reports of several interviews with Ross and Blanchard provided evidence that was favorable to Blankenship. Those reports, the magistrate wrote, could have undercut the government’s case that Blankenship knew of serious safety violations regularly occurring at the mine but tacitly regarded them as acceptable so long as the mine produced coal.

The suppressed evidence, Aboulhosn wrote, “could have resulted in a weaker case for the United States and a stronger one for” Blankenship.

Blankenship could not be reached through an aide for comment Monday. He told WV MetroNews the order “is a positive, but it’s not over.”

In an emailed statement, Goodwin declined to comment, citing the fact that Berger has yet to ultimately rule on the matter.

Blankenship unsuccessfully ran for U.S. Senate in 2018, and focused much of his campaign in the Republican primary proclaiming his innocence in connection with UBB.

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

In November 2018, U.S. Department of Justice lawyers urged a federal court not to overturn Blankenship’s conviction, saying Blankenship hadn’t proven the information would have changed the outcome of his trial. At the time, the Justice Department said that some of the documents weren’t turned over to the defense team, but that they weren’t germane to the trial.

Staff writer Ken Ward Jr.

contributed to this report.

Reach Jake Zuckerman at

jake.zuckerman@wvgazettemail.com, 304-348-4814 or follow

@jake_zuckerman on Twitter.

Reach Kate Mishkin at

kate.mishkin@wvgazettemail.com, 304-348-4843 or follow

@KateMishkin on Twitter.

Funerals for Friday, September 20, 2019

Barton, Richard - 3 p.m., Donel C. Kinnard Memorial State Veterans Cemetery, Dunbar.

Birthisel, Avis - 11 a.m., Casdorph & Curry Funeral Home, St. Albans.

Call, Denver - Noon, Allen Funeral Home, Hurricane.

Dearien, Tommie - Noon, Stevens & Grass Funeral Home, Malden.

Fletcher, Joanna - 1 p.m., Curry Funeral Home, Alum Creek.

Keeney, Steven - 2 p.m., Keith Full Gospel Church, Keith.

May, Rosa - 2 p.m., Bartlett - Nichols Funeral Home, St. Albans.

Morris, Linda - 1 p.m., Deal Funeral Home, Point Pleasant.

Parsons, Harry - 11 a.m., Ellyson Mortuary Inc., Glenville.

Pauley, Clarence - 10 a.m., Cunningham Memorial Park, St. Albans.

Pino, Patricia - 11 a.m., Bradley FreeWill Baptist Church.

Rogers, Marilyn - 11 a.m., Blessed Sacrament Catholic Church, South Charleston.

Satterfield, Kenneth - 5 p.m., Satterfield residence, 1161 Daniels Run Road, Millstone.