
Former Massey Energy CEO Don Blankenship engaged in a campaign disputing the conclusions of the U.S. government and other independent bodies investigating the explosion of the Upper Big Branch coal mine in 2010 since even before any charges of crimes related to the incident.
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"There is no question" prosecutors violated former Massey Energy CEO Don Blankenship's constitutional rights on the way to a misdemeanor conviction of conspiracy to violate mine safety, a magistrate judge wrote Aug. 26, even if the evidence withheld from his defense may not have resulted in a different verdict.
Magistrate Judge Omar Aboulhosn was noted there was no evidence the prosecutors acted with malice but recommended the U.S. District Court for the Southern District of West Virginia set aside Blankenship's conviction based on over a thousand pages of suppressed evidence. A jury convicted Blankenship of a misdemeanor charge of conspiring to violate mine safety laws in early 2016 and acquitted him of other, felony charges by a jury that deliberated for two weeks. The U.S. Court of Appeals for the Fourth Circuit upheld the decision and the U.S. Supreme Court declined to hear the case.
The charges levied against Blankenship were connected to investigations into the explosion of the Upper Big Branch coal mine that killed 29 coal miners, but the charges did not directly implicate him with causing the explosion.
Blankenship, running an ultimately unsuccessful bid for the U.S. Senate at the time, filed a motion to vacate his conviction early in 2018. He already spent a year in prison. In a late-night statement following the Aug. 26 decision, Blankenship said he appreciated the judge's recommendation, but fired back at criticisms of the former coal executive's rhetoric.
Goodwin, the lead prosecutor on the case, did not immediately respond to a request for comment.
Judge defends attorneys
The judge wrote that the record included not a "scintilla of evidence" that prosecutors in the case acted in bad faith or with malice toward Blankenship. In addition to deploying accusatory rhetoric against the prosecutors in court, Blankenship has waged a public campaign in defense of himself in the form of social media, press releases, a documentary and a booklet released from prison titled "An American Political Prisoner."
Blankenship's statement acknowledges the Aug. 26 filing is just a recommendation to Judge Irene Berger, the judge who presided over his original trial, and that she can reject it. The next steps in the process include potential objections from Blankenship or the U.S. government before Berger rules on the issue.
Michael Hissam, a former assistant U.S. Attorney in the district who is now a partner with Hissam Forman Donovan Ritchie PLLC, noted the district is relatively small and Berger and Aboulhosn work together frequently.
"The general rule of thumb in this district is these district judges do not break ranks with magistrates," Hissam said. "They do not overturn them."
The difference in this case, Hissam explained, is that Berger did sit through the trial and could determine she is better positioned to make a call in disagreement with Abhoulson's interpretation of the evidence. Even if she agrees, Berger's decision could be subject to an appeal to a higher court.
Blankenship's case was viewed by many as a landmark conviction because it held the highest-ranking corporate official at a company liable for a disaster that several independent reports concluded was the result of the company's safety culture.
"Certainly it was unprecedented in the respect we ultimately convicted a chief executive officer of a multibillion-dollar corporation," Goodwin said in a prior interview. "That hadn't been done, and it certainly hadn't been done in the coal context ever."

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Former Massey Energy CEO Don Blankenship, left, walks out of the Robert C. Byrd U.S. Courthouse in Charleston, W.Va. |
Evidence at stake
The issues throwing the high-profile conviction into question involve the withholding of evidence that was determined by the magistrate judge to be favorable to Blankenship's case and in total would have made a different verdict "reasonably probable."
"The undersigned acknowledges that the suppressed evidence does not undisputedly prove [Blankenship's] innocence, but the question is whether the court is confident that the jury's verdict would have been the same," Aboulhosn wrote, noting that he has no such confidence.
For example, the government highlighted evidence of Massey providing advanced notice of mine inspections to allow time to correct violations as part of a narrative suggesting Blankenship was engaged in a "relentless campaign of obstruction." However, the judge points to a suppressed chain of emails in which U.S. Mine Safety and Health Administration officials are conflicted as to whether Massey's practices even constituted an improper advance notice.
Other emails from the agency could have favorably supported the notion there was a bias toward Massey at the safety agency, the judge wrote. In one email responding to a draft press release following the Upper Big Branch explosion, a top official with the agency, then-Mine Administrator Kevin Stricklin, wrote that "my only comment is to put a dagger into" Massey Energy. The judge also points to one MSHA official making a profane statement directed at Blankenship and another in which a government official wrote the Secretary of Labor stating "sometimes bad things happen to bad people," regarding Blankenship's indictment.
Yet another email deemed favorable to Blankenship's defense indicated counsel with MSHA was aware a citation to Massey could not sustain a challenge from the company due to a lack of supporting evidence but vacated it after the company challenged the citation.
"The United States clearly relied upon reference to MSHA citations in support of its argument that [Blankenship] conspired to violate mine safety standards," Aboulhosn wrote.
The judge also concluded suppressed MSHA disciplinary records and internal e-mail backed elements of Blankenship's defense, including arguments that a ventilation plan approved or imposed by MSHA contributed to safety violations. Aboulhosn also wrote that several notes from interviews conducted by the prosecutors not shared with the defense were favorable in that they supported Blankenship's argument that he "did not relentlessly push production over safety."
