CHARLESTON, W.Va. — Lawyers for former coal executive Don Blankenship, now a candidate for U.S. Senate, have filed a motion to vacate his 2015 misdemeanor conviction on a charge of conspiracy to violate mine safety regulations.
The motion was filed Wednesday morning, just under three weeks before a heated primary Election Day.
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.
The motion in U.S. District Court for the Southern District of West Virginia, alleges that the prosecution in Blankenship’s case withheld key documents and interviews — “a mountain of undisclosed information.”
“The sheer quantity of withheld information is staggering, and its quality would have made it essential to Mr. Blankenship’s defense,” Blankenship’s lawyers wrote.
MORE: Read the motion to vacate and set aside Don Blankenship’s conviction and sentence.
Former Assistant U.S. Attorney Steve Ruby suggested today that the timing of the filing wasn’t coincidental.
“This seems to me like a political Hail Mary,” said Ruby, who was one of the main attorneys in the federal prosecution against Blankenship.
“He’s three weeks away from an election. It sounds to me like he’s behind in the polls. If there were any merit to this whatsoever, he would have filed it while he was still in prison and could have benefited from it instead of waiting until almost election day.”
Ruby is now in private practice at the Bailey & Glasser firm in Charleston. Among his roles is private legal work for the incumbent U.S. Senator, Joe Manchin.
Blankenship is part of a crowded Republican field aiming to knock off Manchin. Among the other Republican candidates are state Attorney General Patrick Morrisey and Congressman Evan Jenkins.
Blankenship’s participation has drawn scrutiny from Republican leaders nationally.
A political action committee called Mountain Families PAC, with behind-the-scenes backing by national Republicans, is running a campaign titled, “Toxic Politician.” Politico reported that current Republican leaders in the U.S. Senate would prefer Blankenship not carry the GOP banner into November.
This is the most recent in a long run of Blankenship attempts to legally clear his name.
While he was serving a year of prison time in Taft, Calif., Blankenship produced and mailed out 250,000 copies of a booklet maintaining his innocence.
He appealed his federal conviction in 2016. Late last year, the U.S. Supreme Court declined to take up his case.
Blankenship’s misdemeanor conviction was for conspiracy to willfully violate mandatory mine safety and health standards.
He was acquitted of two other charges.
Blankenship was sentenced to the maximum penalty of one year in prison and a $250,000 fine. He also had to serve one year of supervised release.
The motion notes that the jury that convicted Blankenship deliberated for nine days and twice told Judge Irene Berger that it could not agree on a verdict.
“In short, this was an extremely close call,” Blankenship’s lawyers wrote. “The newly-disclosed evidence, withheld by the prosecution until after trial, would have tipped the balance in Mr. Blankenship’s favor.”
Blankenship did not take the stand in his trial, which started in October and ended in December that year His legal team did not call any of its own witnesses but did conduct extensive cross-examination of the prosecution’s witnesses.
“I haven’t seen anything that he didn’t put in front of the jury as part of his defense,” Ruby said today. “He had an exhaustive trial that lasted from start to finish about 9 weeks. The jury heard, I think, everything that he is discussing in this motion — and the jury convicted.
“It’s a shame to me that he continues to treat it as a political football.”
Ruby continued, “If this were a serious motion with real legal merit, it would have been filed long ago.”
Speaking by telephone today, Ruby contended federal prosecutors turned over all relevant information to Blankenship’s defense.
“I am 100 percent confident that we complied with our disclosure obligations,” Ruby said.
The filing by Blankenship’s lawyers accuses Ruby and other representatives of the federal prosecutor’s office of suppressing evidence.
“The prosecutorial misconduct was of such magnitude as to deny Mr. Blankenship due process and a fair trial, and it therefore violated his Fifth Amendment rights and warrants vacating his conviction and sentence.”
The lawyers for Blankenship say that, since the trial and sentencing, the legal team has continued to ask for and obtain information, including memoranda of interviews, plus emails from safety regulators and additional documents.
Blankenship’s lawyers contend the communications indicate bias by the Mine Health and Safety Administration, as well as conflict within the agency over whether mines under Blankenship’s guidance provided illegal warnings when inspectors were on site.
“There is no lawful basis by which these materials could have been withheld,” Blankenship’s legal team states.
Blankenship’s lawyers say much of the information was made available after leadership changed in the U.S. Attorney’s Office for the Southern District of West Virginia.
Particularly, in January 2017, the U.S. Attorney’s Office began providing 61 memoranda of interviews that had not been disclosed previously, Blankenship’s filing states.
The following November, the U.S. Attorney’s Office turned over several dozen emails from the Mine Safety and Health Administration, the motion states.
Blankenship’s team also filed a motion Tuesday asking for more time to provide another memorandum in support of its case. Meanwhile, he has asked for an evidentiary hearing in federal court.
“The conviction of Mr. Blankenship that resulted from this terribly flawed process cannot stand,” the coal executive’s lawyers wrote.