CHARLESTON, W.Va. — A U.S. Magistrate Judge has recommended throwing out former coal operator Don Blankenship’s conviction on a mine safety conspiracy charge because of information that was withheld from his defense.
The filing is a recommendation with the weight of an extensive review by the magistrate judge, but is not necessarily final.
“Today is a positive, but it’s not over of course,” Blankenship said in a brief telephone interview with MetroNews on Monday afternoon.
In a 60-page filing U.S. Magistrate Judge Omar J. Aboulhosn emphasized that he could not conclude wrongdoing by federal prosecutors, only errors.
But he also wrote “there is no question” that Blankenship “has satisfied his burden of proof by establishing by a preponderance of evidence that the United States violated his constitutional rights.”
Aboulhosn concluded that a range of evidence such as reports and internal emails from federal mine safety employees and summaries of interviews with witnesses could have been favorable to Blankenship’s defense.
The magistrate judge wrote that the suppressed evidence does not undisputedly prove Blankenship’s innocence, but it could have affected the jury’s view.
“Considering the suppressed evidence collectively, the suppressed evidence could have had some weight and its tendency could have been favorable” to Blankenship, Aboulhosn wrote.
Based on that, the magistrate judge concluded, “the undersigned does not have confidence in the verdict.”
His recommendation will now be submitted to U.S. District Judge Irene Berger, who oversaw the 2015 trial.
“I’d classify it as a step forward,” Blankenship said. “The question all along has been to get the truth out there.”
The U.S. Attorney who oversaw the prosecution, Booth Goodwin, withheld comment.
“Considering this is simply a recommendation from the magistrate judge to District Judge Berger, who is the judicial officer charged with actually deciding the issue, it is not appropriate for me to comment at this time,” Goodwin stated.
Blankenship spent a year in jail following a misdemeanor conviction of conspiracy to violate mine safety regulations. He also had to pay a $250,000 fine and serve one year of supervised release.
The charges against Blankenship related to his leadership of Massey Energy leading up to the 2010 explosion of the Upper Big Branch mine, which killed 29 workers.
He was not charged with causing the explosion but was accused of overseeing a culture of disregard for safety that led to the tragedy.
The conspiracy involved advance warnings of mine inspectors, cheating on dust samples and concealing safety warnings.
The six-week trial concluded as a close call for the jury, which deliberated for nine days and twice told Judge Berger that it could not agree on a verdict. Finally, Judge Berger issued an “Allen charge” to push for a verdict.
On April 18, 2018, while Blankenship was gearing up for a run for U.S. Senate, his attorneys filed a motion to vacate the conviction. The lawyers contended that newly-uncovered evidence could have swayed the jury.
Over the many pages of his filing, Magistrate Judge Aboulhosn describes the evidence and weighs how it might have been perceived by the jury.
Some were memoranda of interviews of former Massey Energy employees and other witnesses, written by law enforcement agents.
Others were internal documents from the U.S. Mine Safety and Health Administration such as emails and disciplinary reports.
Blankenship’s lawyers argued that the material demonstrated bias by the agency’s employees or would have demonstrated how the agency’s own actions played a part in the conditions that led to the explosion.
“Movant contends that certain MSHA employees were involved in his prosecution and bias by MSHA employees is relevant. The undersigned agrees,” Aboulhosn wrote, referring to himself as the undersigned.
Aboulhosn explicitly wrote that he does not believe the evidence was withheld dishonestly by Goodwin or by former federal prosecutor Steve Ruby, who led the case.
“The movant may attempt to paint the undersigned’s recommendation in this matter as proof of something more sinister than errors,” Aboulhosn wrote, “but from the undersigned’s review of the entire record produced in this matter, there is no evidence that Mr. Goodwin and Mr. Ruby acted with any ulterior motive other than to attempt to hold the movant responsible for criminal violations of the laws of the United States.”
Blankenship, speaking on the telephone, said pursuit of overturning the verdict has been worthwhile following the sentencing, his time in jail, the year on supervised release and the reputation that came with the conviction.
“The most difficult thing for me has been the realization that the American system is broken,” he said.