Blankenship critical after DOJ says federal conviction should not be vacated

By Chris Dickerson | Nov 19, 2018

BECKLEY – The Department of Justice is asking a federal court to maintain the conviction of former Massey Energy CEO Don Blankenship.

Blankenship, meanwhile, says the government's response is "clearly ridiculous."

On Nov. 16, the DOJ filed a response to Blankenship’s motion seeking to have his mine safety conviction vacated, sat aside or corrected. Federal prosecutors say Blankenship has not proven that information was withheld from him and his attorneys that would have resulted in a different outcome of his 2015 trial. They also oppose Blankenship’s request for an evidentiary hearing related to his claims.

“For purposes of this response, the United States does not dispute that some of these materials were discoverable and should have been disclosed pursuant to Department of Justice policies,” the response states. “Those errors, however, are not sufficient to entitle the defendant to relief on collateral review. … The defendant has not shown that he suffered the required prejudice or harm to warrant relief … His motion should be denied without a hearing. …

“In light of the overwhelming evidence supporting the defendant’s unanimous conviction, and the fact that much of the information the defendant alleges was undisclosed was available to and effectively used through alternative means, there is no reasonable probability that the jury would have reached a different verdict.”

Blankenship was convicted for conspiracy to violate mine safety and health standards in 2015, which was the cause of the 2010 Upper Big Branch Mine disaster that resulted in the death of 29 miners. He spent one year in federal prison and had to pay a $250,000 fine. The conviction was upheld by the 4th Circuit Court of Appeals. The U.S. Supreme Court declined to hear the case.

For years, Blankenship has maintained his innocence and said federal prosecutors and federal officials have withheld information and documents that would have helped his case.

In an exclusive interview with The West Virginia Record, Blankenship was critical of the DOJ's filing.

"Their response is clearly ridiculous," he said. "They admit not turning over discoverable statements and documents and then say that because I had a strong defense team and knew some of the persons who made exculpatory comments that I could have learned of them on my own.

"Their problem is that the Constitution does not differentiate human rights based on an American’s financial status or who they know.

"Additionally, they repeat the liberal line of 'profits over safety' and fully ignore that they withheld loads of information that disproves their own statement. They also open up their response by saying the case took place in the aftermath of the UBB tragedy. It didn’t. It took place four and a half years after the explosion but in the aftermath of my documentary which exposed MSHA (Mine Safety and Health Administration) for having cut the ventilation in half. The indictment immediately followed a demand by U.S. Senator Joe Manchin that I be indicted and the trial followed a (former U.S. Senator) Jay Rockefeller statement that a fair trial was more than I deserved."

Blankenship said the only way a judge can affirm his conviction is "to agree that Americans are not entitled to a fair trial.

"Also, (the judge must affirm) that the government has a right to destroy, alter, withhold and misrepresent evidence so long as it says it did not matter to the verdict," Blankenship told The Record. "And, that the defendant could have used his money and personal relationships to have gotten the information that was purposefully withheld. Even if the prosecutor has sworn that the evidence was, in fact, purposefully withheld because the defendant was putting up a strong aggressive defense.   

"If the judge rules to uphold the conviction, he will essentially have to rule that people with enough financial funds to put up a strong defense are not entitled to the same rights as people who do not have the funds.

"Additionally, he will have to rule that the government has an unfettered right to obstruct justice by destroying evidence even when the particulars of what the evidence was will never be known. He will also have to rule that the government can admit to what they have done so long as they say that whatever it was they did would not have changed the vote of a single one of twelve jurors.

"The judge also has to rule the verdict would not have changed without knowing what it was that MSHA investigators destroyed at their self named 'shredding party.'"

U.S. District Court for the Southern District of West Virginia case number 5:18-cv-00591

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