RICHMOND, Virginia – A federal appeals court panel has denied Don Blankenship’s latest attempt to have his 2015 conviction overturned.
The Fourth Circuit Court of Appeals issued its order December 7 saying materials that were not shared during discovery before the trial would not have changed the outcome of the case. U.S. District Judge Irene Berger previously had made the same ruling.
Blankenship was found guilty of a misdemeanor mine safety conspiracy charge related to the 2010 Upper Big Branch mine explosion that killed 29 workers at the Massey Energy facility. Blankenship was Massey’s CEO.
Blankenship’s appeal was based on interviews of Massey employees that hadn’t been disclosed as evidence before the trial. He also cited documents that he says showed intentional bias against him by federal regulators.
Blankenship said he was disappointed by the “clearly erroneous decision,” but he said he wasn’t surprised.
Federal prosecutors are free to do pretty much as they please in order to convict innocent Americans – those who refuse to remain silent when the government causes the deaths of American miners are left fully vulnerable to the vengeance of politicians,” Blankenship said in a series of social media posts. “The withholding of exculpatory evidence does not matter, even if withheld intentionally at the direction of a federal judge. In America, the rule of law has clearly been replaced by the rule of politics.
“For the record, I swear to all of you, on my children and grandchildren lives and on my soul, that I am not guilty of the misdemeanor I was falsely convicted of.”
The appeals judges – Paul Niemeyer, Albert Diaz and Marvin Quattlebaum – agreed with Berger that the material not shared was a serious issue. But they said it wouldn’t have changed the outcome of Blankenship’s trial.
“The circumstances that have brought us to this point in the prosecution of Blankenship are not flattering to the government, and Blankenship’s protest is not a frivolous one,” the judges wrote. “Nonetheless, we conclude that the suppression at issue – both with respect to the individual categories of documents and when they are considered cumulatively – does not undermine confidence in the verdict.
“The verdict that Blankenship conspired to willfully violate mandatory mine standards was supported by ample evidence, and there is not a reasonable probability that the jury’s conclusion would have been altered by the documents’ disclosure.”
Blankenship noted that the ruling cited a false premise as the basis for voiding his conviction.
“The Circuit Judges say that I had access to company employees when I was prosecuted and tried – four years after I retired from the company,” Blankenship wrote. “I did not. In fact, when the company’s Chief Operations Officer’s name appeared on my potential defense witness list, he was reminded by the prosecutors, in writing, that the statute of limitations had not expired and that he could still be prosecuted. …
“Anyone who believes an average American can get a fair trial in America is simply unaware of the facts.”
Blankenship contends the prosecutors behaved so badly “the DOJ itself issued a report saying that if the prosecutors were still working for DOJ, then they would recommend discipline for their misconduct.”
“Yet, the Circuit Judges upheld the falsely achieved verdict, and so it's the Judges who should be most severely disciplined,” he wrote. “American politicians should stop berating other countries governments for their human rights violations, until they stop their human rights abuses.
“The American political judiciary is abusive not only of Americans’ God given rights but even of their own judiciary policies.”
Blankenship also blasted the media, many of which he has sued in federal court. He's also sued some prominent Republicans over an alleged smear campaign.
“The media can say I was prosecuted after the mine explosion,” he wrote. “But the more meaningful truth is that I was not charged with any crime, until after I released proof that the government blew up the mine. The government essentially admits they caused the miners deaths in their own reports. The prosecution witnesses say that, too.
“The coal miners did not, as the government claims, kill themselves.”