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Judge denies Blankenship request to toss conviction

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Finding that attorneys for Don Blankenship presented nothing “to undermine confidence in the jury’s verdict,” a federal district judge on Wednesday refused to throw out the former Massey Energy Co. CEO’s criminal mine safety conviction.

U.S. District Judge Irene C. Berger ruled that none of the evidence that was not turned over by federal prosecutors for Blankenship’s 2015 trial was reasonably likely to change the outcome of the historic case, which sent the once-powerful coal industry leader to federal prison following the worst mining disaster in a generation.

Berger, who presided over the trial, issued a 37-page decision that examined specific documents that prosecutors did not turn over. She found that the information in those was readily available to Blankenship and his legal team, was in some cases the subject of lengthy cross-examination by the defense lawyers during the trial, and in other cases actually painted a negative picture of the former CEO unless taken greatly out of context.

Berger’s ruling rejected an August 2019 recommendation from U.S. Magistrate Judge Omar Aboulhosn. Under the law in such matters, a district judge “may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”

In December 2015, after 24 days of testimony, a federal jury convicted Blankenship of conspiracy to violate federal mine safety and health standards at Massey’s Upper Big Branch Mine in the months prior to an April 2010 explosion that killed 29 miners.

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 noted in Wednesday’s ruling, “Numerous individual miners testified and considerable additional evidence was presented to show that [Blankenship] willfully violated mine safety regulations.

“The evidence presented included cheating on dust samples, advance warning of visits by mine inspectors, lack of adequate staff, concealing safety warnings as confidential, and testimony from numerous coal miners demonstrating that they were required to work in unsafe conditions or conditions with inadequate ventilation,” the judge wrote. “The United States presented further evidence that [Blankenship] was aware of the violations at UBB mine in the years leading up to a deadly explosion and received daily reports showing numerous citations for safety violations at the mine and warnings from a Massey safety official about the serious risks posed by violations 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 federal Mine Safety and Health Administration{/span} inspections and that he lied to investors and securities regulators about Massey’s safety practices.

In April 2018, Blankenship sought to have his conviction vacated, arguing 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.

The motion called 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.

Berger noted that, while those memos were not disclosed, the subject of “every single exculpatory statement” cited by Blankenship “as undisclosed was covered by the defense counsel during cross-examination at trial.”

“The substance of the undisclosed exculpatory statements was covered extensively and repeatedly with Ross and Blanchard at trial,” the judge wrote. “Because additional statements going to the same points that were covered at trial are cumulative of evidence previously presented, their disclosure could have no impact on the outcome of the case.”

The judge wrote that material in those memos was actually “overwhelmingly negative” toward Blankenship and also that material in the memo was “entirely contradictory” to the defense presented by Blankenship’s lawyers. For example, the memos indicated that Blankenship felt that federal mine safety citations were made up. The judge said this view contradicted the defense theory, promoted to the jury, that Blankenship “was serious about remedying violations.”

Berger said that “it is undisputed” that prosecutors failed to disclose documents, in violation of Department of Justice policy and court rules. “The sheer number of undisclosed documents is troubling,” the judge noted.

She continued, “basic review of the record reveals that many of the statements made by counsel for [Blankenship] as to his knowledge of undisclosed materials and the impact of nondisclosure, are simply inaccurate.

“The legal profession and this court demand more of all concerned,” the judge wrote.

A lawyer for Blankenship did not respond to a request for comment Wednesday evening. Blankenship could now appeal Berger’s decision to the 4th U.S. Circuit Court of Appeals, which previously upheld his jury conviction.

Charleston lawyer Booth Goodwin, who was the U.S. Attorney who prosecuted Blankenship, said Wednesday evening, “The court’s order was incredibly thorough, well-reasoned and reached the correct result. It is clear that the court was greatly aided by the fact that she was the presiding judge at trial and, as such, she did not need to rely simply on the cold record and representations of the defendant, but also what she directly observed.”

Reach Ken Ward Jr. at, 304-348-1702 or follow

@kenwardjr on Twitter.

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