CHARLESTON – For the second time in as many weeks, a new federal prosecutor is handling Don Blankenship's attempt to have his conviction vacated.
On June 1, the Department of Justice informed Blankenship's legal team that U.S. Attorney for the Southern District of Ohio Benjamin C. Glassman's office now will be handling the case. Last week, they had been told the U.S. Attorney for the Eastern District of Kentucky would be handling the case after the U.S. Attorney for the Southern District of West Virginia had been recused from the case.
"The Department of Justice (DOJ) informed my attorneys on Friday that they have now changed their mind and have decided that my legal filings, to reverse and invalidate my misdemeanor conviction, will be handled by the Southern District of Ohio DOJ office and not by the Eastern District of Kentucky ie by McConnell prosecutors," Blankenship said. "We can only guess that DOJ realized that having McConnell prosecutors handle my case was a little too 'Transparently Dishonest,' even for them."
Blankenship issued a statement through his campaign for U.S. Senate. Blankenship finished third in the May 8 Republican primary for Democrat Joe Manchin’s Senate seat. Blankenship recently accepted the nomination of the Constitution Party to be its Senate candidate in the fall general election.
"However, to be clear, my case will still be controlled by the same Judge (Irene Berger) that oversaw my trial in Southern West Virginia ... and her court’s Magistrate Judge (Omar Aboulhson)."
Blankenship contends the 2010 explosion at the Upper Big Branch mine in Raleigh County that killed 29 miners occurred because of government regulations that reduced the amount of air to the mine.
In the original 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 in April, the 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.
"As to the DOJ Office of Professional Responsibility’s (OPR) internal investigation report, there is no further update except that it still has not been released," Blankenship said in his latest comments. "Hopefully, unlike Mine Safety and Health Administration documents and emails it has not been shredded or altered so as to make it unreadable.
"The DOJ and the Federal Judiciary’s flagrant examples of 'Transparent Dishonesty' should frighten all Americans. The DOJ has been investigating their own misconduct for more than two years and has known that prosecution misconduct warrants invalidation of my misdemeanor conviction for more than a year. Yet their own investigation report remains hidden while the DOJ selects and then re-selects where it wants to defend itself after it 'completes investigating itself.'
"Obviously, they motive at a minimum is delay but it is likely more than that."
Blankenship says Berger also is "clearly conflicted."
"Berger has already proven herself to be incapable, or corrupt or both, but she will remain positioned to protect her colleague (Federal) Judge (Joseph) Goodwin’s son," Blankenship said. "Yes, Judge Berger’s court Magistrate Judge will be deciding which of the investigation documents Judge Goodwin’s son – former U.S. Attorney Booth Goodwin – improperly withheld.
"In other words, which improperly withheld documents will be made available to the public and which will not. These are documents no one outside of government has seen but which highly likely evidence even more Prosecutor Goodwin and Prosecutor Steve Ruby misconduct."
Blankenship says the DOJ should be called "Department of Politics," saying again he was an "American Political Prisoner."
"The DOJ should turn over the OPR report immediately because if the report is complete and truthful, it will be an admission that I was in fact an 'American Political Prisoner,'" he says. "But instead, it seems that the DOJ focus remains on how to keep the truth covered up for as long as possible.
"They have already requested that the court delay their filing deadlines and a delay has, of course, been granted."
He again argues MSHA caused the Upper Big Branch mine to explode and says the government should finally tell that truth.
"Ironically, the government’s own witnesses have already effectively said under oath, at trial, that the government blew the mine up by making the miners cut the mine’s airflow in half," Blankenship said. "Now the DOJ is delaying resolution of this case and the judiciary is granting that delay in the interest of politics, the DOJ prosecutors and the judges.
"The current DOJ officials should bring this entire matter to a conclusion prior to their becoming partners in the corruption that has surrounded this entire matter for more than eight years. Moving my case from district to district in order to delay or deny justice is not what the founders of our country intended and not what the citizens of this country deserve.
"The DOJ should file a motion to invalidate the case themselves and quit playing the same politics that the Obama administration played. We must all keep in mind that my case is highly likely only one of many that have been falsely prosecuted.
"Our government is corrupt."
On May 21, Blankenship’s legal team filed another motion seeking the release of even more MSHA records.
“Separately, MSHA employee performance reviews were recently provided to Don by the Department of Justice showing that multiple MSHA supervisors received positive reviews for their performance in 2009 and 2010,” a Blankenship press release stated. “But other performance reviews that had previously been hidden show that these same inspectors were disciplined for bad conduct related to the Upper Big Branch (UBB) mine explosion.
“This is yet another of many examples of the illegal actions MSHA has taken to avoid the public finding out all the facts about UBB. The government’s efforts to scapegoat Don are methodically falling apart as the evidence of the government’s prosecution misconduct continues to mount. Don will continue to fight to get to the truth so that today’s coal miners can be made safer and the government’s false claim that the UBB miners killed themselves is exposed.”
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.