Published: July 1, 2016 |

Don Blankenship.
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Lawyers for Don Blankenship on Monday urged “close appellate scrutiny” of the former Massey Energy CEO’s conviction, complaining that the jury pool was biased against him, the prosecution was politically motivated and the trial was controlled by unfair rulings against the defense.

Blankenship’s legal team filed a 94-page opening brief with the 4th U.S. Circuit Court of Appeals, arguing the case against Blankenship had “advanced a novel prosecution theory” that attempted to “defined a crime where there was none” and sought to “criminalize management decisions about budgets for hiring miners and production targets.”

The brief argued Blankenship’s conviction should be reversed because of “erroneous legal rulings at trial that conflicted with clear precedent and permitted conviction notwithstanding manifest shortcomings in the government’s prosecution theory and in its proof.”

“There is an obvious danger for unfair conviction when a man who is unpopular in parts of the community is prosecuted in the wake of — but ostensibly not for causing — a terrible tragedy,” Blankenship’s lawyers said.

Blankenship is currently serving a one-year sentence — the maximum allowable under current law — in a California federal prison after being convicted of conspiring to violate mine safety and health standards at Massey’s Upper Big Branch Mine, where 29 workers died in an April 2010 explosion.

The appeal brief focused on four issues:

•  Whether jury instructions from U.S. District Judge Irene Berger allowed Blankenship to be convicted without proof that he agreed he and his conspirator would do something Blankenship knew to be a crime.

•  Whether the indictment against Blankenship was legally insufficient because it did not identify which of the hundreds of mine safety regulations Blankenship conspired to violate.

•  Whether the judge erred when she would not allow Blankenship’s defense team to cross-examine a key government witness a second time about what the defense says was new material the government brought out during its re-direct questioning after the first cross-examination.

•  Whether Berger improperly instructed the jury about the meaning of the term “reasonable doubt.”

“This appeal presents four important questions arising from a six-week jury trial with a complex record including hundreds of exhibits,” the appeal brief said. “The government’s reliance on a novel theory of criminal willfulness also raises important issues about the criminal liability of corporate officials for failing to prevent safety violations they did not agree or intend to cause.”

Prosecutors have until Aug. 8 to file a response. The 4th Circuit has not yet scheduled oral argument in the case.

Source: (June 27, 2016) Charleston Gazette-Mail

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