Kyla Asbury Jun. 29, 2016, 12:02pm


CHARLESTON – The attorneys for former Massey Energy CEO Don Blankenship, who is currently serving a one-year sentence in a California federal prison, filed an appeals brief arguing that his conviction should be reversed.

“After a six-week trial, the jury deliberated for ten days and twice announced deadlock, ultimately acquitting on all charges other than the county one conspiracy to willfully violate mine safety regulations” the appeals brief states. “That conviction, coming after two deadlock notes and in the other circumstances of this case, merits close appellate scrutiny.”

The brief was filed with the U.S. Court of Appeals for the Fourth Circuit on June 27.

The Southern District of West Virginia was “saturated with prejudice” against Blankenship from animosity generated over many years by the media and by his political and ideological opponents, increasing dramatically after the [Upper Big Branch Mine] disaster,” according to the brief.

The brief states that the trial was held in Charleston, where families of miners who died maintained a courtroom vigil during the trial, constantly in the eyes of the jury. The attorneys also argued that the indictment advanced a novel prosecution theory, attempting to define a crime where there was none.

“It sought to criminalize management decisions about budgets for hiring miners and production targets…contrary to the law enacted by Congress,” the brief states. “The prosecution asked for and received jury instructions that made it unnecessary for the jury to determine whether Mr. Blankenship intended that anyone violate safety regulations or intended to commit a crime…even though willfulness is the mens rea prescribed by the law.”

There is an obvious danger for unfair conviction when a man who is unpopular in parts of the community is prosecuted in the wake of a terrible tragedy, according to the brief.

“This brief shows that the conviction here was unfair and must be reversed because of erroneous legal rulings at trial that conflicted with clear precedent and permitted conviction notwithstanding manifest shortcomings in the government’s prosecution theory and in its proof.”

Blankenship is currently serving his one-year sentence in a California federal prison. It is the maximum allowable sentence under the law. He reported to the prison on May 12.

Blankenship was the CEO of Massey Energy at the time of the Upper Big Branch Mine disaster in April 2010, where 29 men were killed.

Prosecutors have until Aug. 8 to file a response. The appeals court has not yet scheduled oral argument in the case.

Blankenship is represented by William W. Taylor III, Michael R. Smith and Eric R. Delinsky of Zuckerman Spaeder LLP.

U.S. Court of Appeals for the Fourth Circuit case number: 16-4193

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