UPDATED: Blankenship’s attorneys file motion to invalidate verdict

By Chris Dickerson | Apr 18, 2018

CHARLESTON – Don Blankenship’s legal team has filed a motion to invalidate the federal misdemeanor verdict against him.

In the motion filed April 18, Blankenship’s attorneys argue that federal prosecutors and the U.S. Labor Department did not hand a “mountain of undisclosed information” that would benefited Blankenship. The “staggering” amount of information includes FBI interviews with Chris Blanchard and Bill Ross, two of the main witnesses against Blankenship.

“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.”

The motion claims there is no lawful basis by which these materials could have been withheld.

“The prosecution of this case deprived Mr. Blankenship of his constitutional right to a fair trial, violated the Jencks Act, violated this court’s discovery orders and made material misrepresentation to Mr. Blankenship’s defense counsel and to the court,” the motion states. “The conviction of Mr. Blankenship that resulted from this terribly flawed process cannot stand.”

It says there were 61 memoranda of interview that were not disclosed to Blankenship and his attorneys until 2017. Also not provided were several dozen emails from the federal Mine Safety and Health Administration. And even earlier this month, the U.S. Attorney’s office turned over more MSHA documents.

Some of the documents “demonstrate MSHA’s contempt” for Blankenship and Massey, the motion states.

“My only comment is to put a dagger into massey [sic],” MSHA Mine Administrator Kevin Stricklin noted on a draft press release. That was overruled by former MSHA chief Joe Main, who wrote, “This is about presenting the facts to the public in a responsible way.”

“I hope that him [Blankenship] and Glenn Beck get raped by a rhinoceros. Horn end,” another MSHA employee wrote.

The motion also notes evidence of destruction of documents.

“How many miners worked their entire career at UBB?” wrote MSHA employee William Francart in an email. “We had a shredding party here in Beckley and the charts you printed for everyone were modified so that they can’t be read.”

In an April 16 press release, Blankenship said his attorneys told him they expect the case to be nullified or dismissed, “whatever legal term is appropriate.”

Earlier this month, the U.S. Senate candidate and former Massey Energy CEO also said the U.S. Department of Justice’s Office of Professional Responsibility is investigating his prosecution related to the Upper Big Branch mine disaster.

“It has already been established beyond all doubt that the prosecution in my case withheld information from my attorneys and me that should have been provided before my trial,” he said then. “The United States Department of Justice has, since my trial, provided my attorneys with numerous reports and other information not previously disclosed. These materials should have been provided to me pre-trial.”

Blankenship’s attorneys also filed another motion asking District Judge Irene Berger to give them more time to submit a legal brief in support of their motion to vacate his conviction because 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.

“After prosecutors Booth Goodwin and Steve Ruby left the United States Attorney’s office … the government began to provide to my attorneys information that would have been helpful to my defense but that had not been provided before trial,” Blankenship said in a campaign press release about the motion. “This is information the government was legally obligated to provide me for my defense. …

“While the full scope of the prosecutors’ conduct is not yet known, the motion confirms that the Department of Justice (DOJ) has referred these matters to the Office of Professional Responsibility (OPR). OPR has not yet completed or released its investigation report but the report is likely to include even more undisclosed exculpatory materials.”

Blankenship said one of the newly disclosed documents confirm what he has said since the accident: The government forced the UBB miners to use a faulty ventilation plan.

“The MOI says that a lead prosecution witness, when interrogated, told investigators that the ‘UBB mine was set up to fail based on the ventilation system MSHA forced the UBB mine to use,’” he said. “This witness was a 35-year veteran of MSHA and was an MSHA ventilation specialist. This single document, which again was undisclosed pre-trial, confirms that the faulty UBB ventilation plan was MSHA’s plan and not the miners plan.”

April 5 was the eight-year anniversary of the disaster, which killed 29 miners. Blankenship was convicted in 2015 of conspiring to violate federal mine safety and health standards during the 15-month period before the April 5, 2010, explosion. He was acquitted of felony charges of securities fraud and making false statements. He was sentenced to one year in prison in April 2016. He finished that sentence last May and appealed his conviction to the U.S. Supreme Court, which said it wouldn’t hear his appeal.

Blankenship’s Senate campaign also has released an ad it says clarifies what his actually was tried for.

“It is common practice for companies to put out a press release following a tragedy,” Blankenship’s campaign said in a press release. “The Investor Relations Department at Massey Energy Company initiated and wrote a letter doing just that after the UBB explosion. The President of the company normally signs such letters once internal and external attorneys have reviewed and approved the letter.

“Several expert specialty attorneys approved the Massey letter that was then mailed out to shareholders and the public. Once approved Don signed it as it was written.”

The letter contained the statement, “We always strive to comply with mine safety laws.”

His campaign says the letter did not cause any action or complaint by the Security and Exchange Commission or the shareholders. Four and a half years later, the Obama prosecutors indicted Don saying the statement, i.e. the sentence was false.

“The sentence was not false,” his campaign says. “Don did not sign it. Don did not edit it. Don hardly paid any attention to it knowing that several attorneys had approved it and that he was fully engaged in dozens of after tragedy chores.

“Nevertheless, Obama prosecutors charged Don with two crimes for the sentence saying the company always strived to comply with safety laws. The charges, if found guilty, would have resulted in incarceration in a federal prison based on that single sentence. After a two month trial a jury found that Don was not guilty of either of the two charges.”

His campaign says Blankenship believes more information about “the nature of his trial” will be forthcoming in the next few months.

“We now know that a large quantity of documents were withheld by the prosecutors that they were required to turn over to Don’s attorneys,” the release states. “Also documents show that the Mine Health and Safety Administration (MSHA) shredded documents. Additionally, the government’s own prosecution witnesses testified about MSHA destroying and hiding documents.”

In his motion to vacate his conviction, Blankenship is being represented Henry Jernigan of the Charleston office of Dinsmore & Shohl as well as Howard C. Vick and Benjamin L. Hatch of Richmond-based McGuireWoods.

Blankenship will face Republican primary competition from current West Virginia Attorney General Patrick Morrisey, U.S. Representative Evan Jenkins, former coal miner Bo Copley from Delbarton, Martinsburg businessman Tom Willis and Weirton truck driver Jack Newbrough. Incumbent Senator Joe Manchin will be challenged in the Democratic primary by Raleigh County environmental activist Paula Jean Swearengin.

West Virginia’s primary is May 8.

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