BECKLEY – Don Blankenship is asking that a federal judge not to reject a magistrate’s recommendation that his misdemeanor conviction be voided.
On Aug. 26, federal Magistrate Omar Aboulhosn recommended that Blankenship’s federal misdemeanor conviction be vacated because of Brady violations. Blankenship says the Brady violations were “so numerous and so grotesque” that Aboulhosn didn’t “address obvious Jencks Act and Giglio violations” he says were committed by federal prosecutors, including former U.S. Attorney Booth Goodwin and Assistant U.S. Attorney Steve Ruby.
“Justice will not be served in this matter if my misdemeanor conviction is vacated on the basis of Judge Aboulhosn’s recommendation which contains the false statement that Mr. Goodwin and Mr. Ruby did not act in bad faith and with malice,” Blankenship said in a press release. “Therefore, I am hereby publicly asking and encouraging Judge Berger to reject Judge Aboulhosn’s recommendation.
“This will allow the appeals court to properly ‘contextualize’ Mr. Goodwin and Mr. Ruby’s malice and bad faith behavior as what it was and not as errors.”
The Department of Justice had until Sept. 13 to file a motion opposing Aboulhosn’s recommendation. The DOJ made no filing. Blankenship says the DOJ’s decision to not oppose the recommendation amounts to an endorsement of Aboulhosn’s ruling on the Brady violations.
“By not objecting, the DOJ is also acknowledging that its former Southern West Virginia U.S. Attorney Booth Goodwin, (son of Southern West Virginia Federal Judge Joseph Goodwin), as well as former Assistant US Attorney (AUSA), Steve Ruby, committed prosecution misconduct,” Blankenship wrote. “Judge Aboulhosn’s findings confirmed and expanded the DOJ’s Office of Professional Responsibility’s (OPR) findings which were issued 16 months ago.
“The OPR investigation uncovered that Mr. Ruby intentionally withheld all post-indictment Memorandums of Interview (MOI), because he believed Mr. Goodwin had instructed him to do so. Ruby further testified that he believed then US Attorney Goodwin’s direction to withhold all post-indictment MOIs was in response to my attorneys having filed a recusal motion.
“The motion asked that the entire Southern West Virginia Federal Court be recused, because my attorneys believed Booth Goodwin, a Federal Judge’s son working in the same courthouse, was guilty of prosecution misconduct.”
Blankenship also says the federal court system in the Southern District of West Virginia has been “nepotistic, political and biased” toward him.
“The Southern West Virginia Federal Court has shown itself unwilling to recommend that any action be taken against Goodwin or Ruby,” Blankenship wrote. “Magistrate Judge Aboulhosn instead fully excused as errors the same actions that OPR said cannot be allowed to be repeated.
“Surely, OPR was not recommending such harsh discipline as ‘whatever needs to be taken’ for ‘errors.’”
Blankenship said the matter needs to be handled by an impartial judge or group of judges.
“If the Southern West Virginia Federal District ignores the OPR recommendation, then what is the purpose of OPR’s report,” Blankenship wrote. “At a minimum, the Southern West Virginia court must stop overtly condoning what Goodwin and Ruby did, else this Federal District will be inviting similar prosecutor misbehavior in the future. The court will be inviting prosecutors to falsely imprison innocent Americans again, however they can do so. …
“Ironically, Mr. Goodwin immediately evidenced the validity of the recusal motion when he did more of what the motion correctly asserted he had already done. … The Southern West Virginia Federal Court should not continue to destroy the confidence of the public in the American judiciary.
“It has already done enough damage in that regard.”
In his rare legal move last month, Aboulhosn said Blankenship’s 2016 conviction for conspiring to violate mine safety laws should be tossed out. The judge wrote that the federal government failed to turn over evidence that could have helped the former Massey Energy CEO’s case.
“It’s obviously good news,” Blankenship told The West Virginia Record then. “But still, the U.S. judicial system did what it thought was in its best interest.”
In his filing, Aboulhosn also said he did not find evidence that Goodwin nor Ruby acted with ulterior motives while prosecuting the case and that they did not have improper motive or malice toward Blankenship.
Aboulhosn said "there is no question" Blankenship has proven there is "a preponderance of evidence" that prosecutors violated his constitutional rights. That includes reports, internal emails, witness interview summaries and more that were withheld that could have helped Blankenship's defense in the criminal trial. Aboulhosn says the suppressed items doesn't prove Blankenship was innocent, but he says the inclusion of those materials could have altered the jury's ruling.
“Considering the suppressed evidence collectively, the suppressed evidence could have had some weight and its tendency could have been favorable," Aboulhosn wrote.
If Berger agrees with Aboulhosn, that would clear Blankenship’s verdict and his record.
Blankenship was convicted for conspiracy to violate mine safety and health standards in 2015 related to 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.
Since the explosion, Blankenship has maintained his innocence and said federal prosecutors and federal officials have withheld information and documents that would have helped his case.
“Even though the judge tried to cover up for the prosecutors, I think this recommendation is going to enlighten the public that the U.S. judicial system is flawed,” Blankenship told The Record. “The prosecutors in this case were so far out of bounds that it’s hard to believe it wasn’t intentional with malice.
“The recommendation is a step in the right direction, but it’s far short of the goal.”
Blankenship said the public still needs to know the government is to blame for the Upper Big Branch disaster.
“They (the government) know they blew it up,” he said. “The judges know the prosecutors tried to imprison me for personal reasons. It’s sad.
“I found it humorous that he wrote that my rhetoric has been vitriolic. My rhetoric has been vitriolic because if someone tries to put you in prison for life based on lies, you’d get upset, too.”
Blankenship praised Aboulhosn, who was appointed to his first judicial post by then-Gov. Joe Manchin. Blankenship and Manchin have butted heads many times over the years, including about the Upper Big Branch disaster.
“I appreciate that he (Aboulhosn) had a difficult time coming to this conclusion and writing it,” Blankenship told The Record. “I know he has good intentions on his part. But, there still is a problem with our judicial system. And, it’s not just the prosecutors. It’s the Department of Justice. It’s the Mine Safety and Health Administration, too.
“I’ll keep fighting them.”
Now, Blankenship says the DOJ “has yielded to the reality that intentional prosecution misconduct was rampant in my case.”
“They did so following years of attempting to sustain an illicitly achieved ‘misdemeanor conviction’ against me for political reasons,” Blankenship wrote. “Yes, they only stopped their efforts to sustain the misdemeanor conviction when it was no longer politically beneficial to their US Senate cohorts to do so but they finally did it.
“Judge Berger should now follow suit. She should tell the truth about Goodwin and Ruby, not for political reasons, but because it is the right thing to do. If Judge Berger cannot bring herself to do the right thing, because of concern for her colleague Judge Goodwin’s feelings, she should have recused herself from this case years ago.
“My presumption is that Judge Berger recognizes the value of this case to those who unlike me are unable to defend themselves from prosecutor misconduct which is imbedded in opportunism, nepotism, bias, and politics. At my sentencing, Judge Berger said I could have been a hero but I chose to be a criminal. But she was wrong. I am not a criminal. I suspect that deep down she knows that.”
Now, he says Berger can be a hero “to those less fortunate and who may be falsely accused in the future.”
“She can do so by telling the truth about Mr. Goodwin and Mr. Ruby,” Blankenship wrote. “Conversely, she can choose to be a supporter of future atrocities which will be afflicted upon the less fortunate by ill meaning prosecutors like Goodwin and Ruby.
“She also has a third and best choice. She can honor my request and reject Judge Aboulhosn’s recommendation if she cannot bring herself to tell the truth about her colleague’s son. She can let an impartial judge, who is not a friend and colleague of Judge Goodwin, write that Mr. Booth Goodwin and Mr. Ruby acted with obvious malice and bad faith in an effort to use the American justice system for their own personal gain.
“Judge Berger can cause this matter to be addressed in a published Fourth Circuit decision so that it might be an even greater help to other falsely accused Americans. By doing so, she can allow another Judge to be the hero and restore at least a ‘scintilla’ of judicial integrity. Judicial integrity that the Southern West Virginia judiciary has thus far destroyed by their mishandling of this corrupt attempt to imprison me for life.
“American judges and DOJ prosecutors need to grow up and tell the truth if this country is to stop imprisoning innocent Americans. As well, the UBB truth needs to be told if the MSHA explosion victims are to rest in peace and today’s miners are to be as safe as they can be.
Judge Berger needs to do what we at Massey always tried to do. It is time for her to do the right thing.”
U.S. District Court case numbers 5:14-00244 (criminal) and 5:18-cv-00591 (civil)