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By Stephen Lee
Former coal mogul and current West Virginia Senate candidate Don Blankenship wants to clear his name from the 2015 conviction that sent him to prison for a year.
The April 18 filing in U.S. District Court for the Southern District of West Virginia is seen as an attempt to burnish Blankenship’s image with voters before the May 8 Republican primary.
In 2015, jurors found Blankenship guilty for evading federal safety rules after a 2010 mine explosion that killed 29 workers.
In a statement, Blankenship said his conviction should be vacated because the government had withheld from his attorneys interview memos, emails, Mine Safety and Health Administration documents that contradicted the government’s theory of prosecution, and other material that would have helped his defense.
“I was subjected to a trial wherein I faced life in prison while the government was lying, withholding information illegally, and destroying documents,” the ex-Massey Energy CEO said in his statement.
Blankenship has made the argument in the past. In June 2015, six months before his conviction, U.S. District Judge Irene Berger found that prosecutors should hand over “any and all” potentially exculpatory evidence. But Blankenship’s defense team maintains that the government failed to do so.
Withholding evidence violates the Brady Rule, a 1963 Supreme Court precedent that requires the government to provide exculpatory evidence to the defense.
Neither the U.S. Attorney’s office in West Virginia nor Blankenship immediately responded to Bloomberg Environment’s requests for comment. U.S. Rep. Evan Jenkins and state Attorney General Patrick Morrisey, Blankenship’s Republican primary rivals, also did not immediately respond to Bloomberg Environment’s requests for comment.
In April 2016, Blankenship was found to have conspired to circumvent safety standards, although jurors cleared him of felony charges involving securities fraud and making false statements. Those charges would have carried longer prison terms.
Blankenship has been competitive in a three-way primary race against Jenkins and Morrisey. A Jenkins-commissioned survey by Harper Polling in March found Jenkins with 29 percent, Blankenship with 27 percent, and Morrisey with 19 percent, with 23 percent of those surveyed undecided. The poll had a margin of error of plus or minus 4.4 percentage points.
The primary winner will go on to challenge Sen. Joe Manchin (D).
One longstanding problem with the Brady Rule is that there’s no meaningful way of enforcing it, said Paul Cates, a spokesman for the Innocence Project, a New York-based organization that uses DNA evidence to exonerate convicted persons.
“We find out about [disclosures] not happening all the time, but it’s all by fluke,” Cates told Bloomberg Environment. “It’s when somebody really digs into the evidence and uncovers it. Or, after they’re exonerated, they bring a civil rights lawsuit, or maybe there are conviction integrity units.”
Most district attorneys’ offices don’t have internal systems to compel them to turn over exculpatory evidence, Cates said. And even when government prosecutors are caught, state disciplinary boards rarely hold them accountable, he said.
Cates said that Blankenship, unlike many of the Innocence Project’s clients, “has resources that allow him to mount this very vigorous defense. But if his case could help shed some light on a serious problem in the criminal justice system, then that’s not a bad thing.”
The case is U.S. v. Blankenship, S.D. W.Va., No. 5:14-cr-244, motion filed 4/18/18.
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