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Blankenship thanks Berger after she refuses to void his federal conviction

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By Chris Dickerson | Jan 16, 2020


BECKLEY – A federal judge ignored a magistrate’s recommendation to void Don Blankenship’s 2015 conviction.

In response, Blankenship thanked the judge for doing so.

On Jan. 15, Berger issued a 37-page opinion and order that disagrees with U.S. Magistrate Omar Aboulhosn’s August recommendation that the former Massey Energy CEO's conviction on a misdemeanor mine safety conspiracy charge related to the 2010 Upper Big Branch explosion that killed 29 miners.


Aboulhosn had noted errors and evidence that had not been disclosed, which he said made him “not have confidence in the verdict.”

Berger agreed about the evidence, but she said it was excluded by court rulings, mentioned during the trial or not important to the case. She also said Blankenship’s legal team could have obtained the material in other ways.

“Having considered all of the arguments … the nature and content of the undisclosed documents, the substantive evidence presented at trial and the applicable law, the court finds the movant (Blankenship) has failed to meet his burden to establish that a reasonable probability exists that the outcome of the trial might have been different had the suppressed evidence been disclosed prior to trial,” Berger wrote. “Specifically, after thorough review, nothing has been presented to undermine confidence in the jury’s verdict. …

“It is undisputed that the United States failed to disclose documents and that this failure is violative of Department of Justice policy and the rules of discovery. The sheer number of undisclosed documents is troubling.”

In August, Blankenship asked Berger to reject Aboulhosn’s recommendation.

Well, I need to thank Judge Irene Berger," Blankenship wrote in an open letter he issued Jan. 16. "She finally rejected Federal Judge Aboulhosn’s recommendation to void my misdemeanor conviction, as I publicly requested she do.

“My request not to void the misdemeanor conviction was based on Judge Aboulhosn’s comment that there was not a ‘scintilla’ of evidence that the prosecutors intentionally did anything wrong. Even Berger did not agree that there was no evidence that (former U.S. Attorney Booth) Goodwin and (former Assistant U.S. Attorney Steve) Ruby intentionally did anything wrong. She instead said that what they did was ‘troubling.’

“Judge Berger essentially ruled that in order to get a fair trial in America an accused person has to conduct as thorough an investigation as does the United States government.”

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.

He also is running for president on the Constitution Party ticket.

Goodwin said he was pleased with Berger’s ruling.

“The Court’s order was incredibly thorough, well-reasoned and reached the correct result,” Goodwin said in a statement to The West Virginia Record. “It is clear that the Court was greatly aided by the fact that she was the presiding judge at trial and, as such, she did not need to rely simply on the cold record or representations of the defendant, but also what she directly observed.”

In his open letter, Blankenship also said Berger “destroyed” the Brady doctrine with her ruling. That is a pretrial discovery rule requiring prosecutors must turn over all exculpatory evidence to a defendant in a criminal trial.

“Her ruling even excuses the prosecutors for withholding a government agency email which said that the government had a shredding party and altered UBB related documents during the federal investigation,” Blankenship wrote. “The lead prosecutor, Ruby, even testified that he was ordered to withhold every post-indictment FBI interview report from my defense, because, in his opinion, Federal Judge Joseph Goodwin was angry at my defense attorneys.

“At least now if the Federal Appeals Court is going to let Berger’s decision stand, they will have to affirm that kangaroo courts and politically motivated false and vindictive prosecutions are still acceptable in America. It is my expectation that they will do exactly that given that this same Appeals court sent me to federal prison for a misdemeanor, prior to any appeal.”

Blankenship again stressed he not guilty of the conspiracy charge.

“I am not capable of being guilty of what I was convicted of,” he wrote. “Not even close. If I were guilty, then I would not have tried so hard to overturn and then to void a misdemeanor conviction. More obvious is that the United States government (including members of both major political parties) would not have tried so hard to sustain it.

The government had to sustain my misdemeanor conviction to discredit the truth about UBB and to protect their lies and their cover-up. Why else would the United States try so hard for over four years to sustain a misdemeanor conviction?”

Blankenship said he is guilty of “telling the truth and standing up for the perished miners and those that managed Massey and the UBB mine.”

“Hopefully, someday people will recognize that MSHA caused the mine to blow up — not the coal miners, as MSHA falsely claims,” he wrote. “Miners lives could be needlessly lost again, because those responsible for the UBB explosion and the coverup have escaped accountability for now.

“All that Judge Berger, Booth Goodwin, Senator Joe Manchin, and many in the media have done is expose what they are — cheats, liars, and misfits. The media and our government are the truth’s biggest enemy.”

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