• Don Blankenship

FEDERAL PROSECUTORS EXPOSED: DOJ AGREES TO MAKE THEIR INVESTIGATION REPORT ON BLANKENSHIP CONVICTION

Updated: May 20, 2019


FEDERAL PROSECUTORS EXPOSED

DOJ AGREES TO MAKE THEIR INVESTIGATION REPORT ON BLANKENSHIP CONVICTION PUBLIC

The United States government has finally agreed that the Department of Justice’s (DOJ) Office of Professional Responsibility (OPR) Report on my prosecution can now be released to the public. The full OPR report is posted on my website www.donblankenship.com and on my Facebook page. The report is lengthy and complex, particularly for non-attorneys. For that reason, in this post I attempt to simplify five major categories of violations, each category of which contains multiple specific violations, of Department of Justice policy and the law by former US Attorney Booth Goodwin and his assistant Steve Ruby.

Keep in mind as you read this post that what it contains are not just accusations that are being made by me or my attorneys. These are instead violations or conduct discovered by the DOJ’s OPR investigation team and that are identified in their report. They also include violations for which new evidence has been obtained since OPR’s investigation. Keep in mind as well, that additional documents proving prosecution misconduct were obtained by my defense team after the OPR investigation had been completed. These additional documents expose prosecution misconduct that OPR did not have and therefore could not consider in their conclusions. In addition, while OPR found violations, they also identified other instances where prosecutors gave conflicting stories or offered questionable explanations. But OPR was not able to reach conclusions about several critical issues. That is why the Motions my attorneys have filed are necessary to understand the full scope of the misconduct.

Several terms non-attorneys may not be familiar with are included in this ad. For example, “exculpatory” information which is information that might be helpful to the defense. “Brady” material which is “exculpatory” information the government is required by law to provide to the accused. MOIs which are Memorandum of Interview forms that DOJ investigators complete to maintain a record of what witnesses tell investigators when they are questioned by the FBI and others.

The five violation categories I comment on in this post are not all the types of violations that the prosecution team, including US Attorney Booth Goodwin and Assistant US Attorney Steve Ruby, likely committed. In fact, it is highly likely that OPR failed to discover many other violations that Goodwin and Ruby committed because the OPR report did not even investigate potential violations related to the false felony charges Goodwin and Ruby filed against me and for which I was found not guilty by the jury.

The five violation categories discussed in this ad are that:

1) The prosecution failed to disclose that Steve Ruby had knowledge of accusations made by MSHA employees. The accusations were that MSHA Ventilation Specialist Joe Mackowiak had destroyed documents, altered dates on mine ventilation plans, and had forged other people’s initials onto those plans following the mine explosion, ie during the DOJ’s criminal investigation. Additionally, Ruby lied to the Judge when he told her during trial that he did not know of these accusations prior to trial.

2) The prosecution failed to disclose prosecution knowledge of an internal letter written by MSHA which complimented Massey on its efforts to reduce safety violations, a letter which is referred to as the “applaud” letter;

3) The prosecution failed to provide my defense team with 61 Memorandum of Interviews (MOIs) which contained dozens of exculpatory statements by government witnesses. MOIs that according to Steve Ruby were withheld because Goodwin was angered that my attorneys were aggressively defending me;

4) The prosecution falsely claims, in response to defense motions, and in discussions with the Judge during trial, that exculpatory MOIs had been disclosed to the defense even though they knew exculpatory MOIs were being intentionally withheld.

5) The prosecution failed to forward Department of Labor (DOL) emails to the defense which clearly contained exculpatory information, such as the fact that MSHA inspectors themselves did not believe that the UBB miners telling one another that the inspectors had arrived at the mine was a civil violation, let alone a federal crime. One such email even said that the MSHA mine accident investigators had had a “Shredding Party” at which they had destroyed and altered UBB related documents and charts.

Below is greater detail on each of these five categories of violation.

1). DESTROYED DOCUMENTS The OPR report says that my attorneys alleged in motions and in court that MSHA employees had told the government’s lead witness (Bill Ross) that Joe Mackowiak had destroyed documents. The fact is that my attorneys not only alleged this but that they also provided the court with a sworn written statement made by Ross that detailed the accusation. In court, at trial, Ruby asserted to the Judge that he had not known about the claim that documents were destroyed prior to the trial. Ruby even told OPR during their investigation that he did not have knowledge of this accusation before trial. But the facts are that Ruby did know about the accusations at least two years before trial.

FACTS:

(1) In 2012, MSHA received a report from an employee that Mackowiak had destroyed documents, altered dates and forged initials on the very ventilation plans that were in use at the time of the UBB explosion. The employee commented to the effect that Mackowiak “got away with it.” An internal DOL document shows that these allegations were referred to the U.S. Attorney’s Office and that Steve Ruby declined to prosecute the investigation.

(2) Ruby clearly misled my attorneys, the court, and even more recently the DOJ and OPR. Ruby knew of the claims being made by MSHA employees that Joe Mackowiak had destroyed documents. The OPR report makes no mention of evidence my attorneys now have that Ruby did in fact know of the allegations because its investigators did not have access to the evidence during their investigation.

(3) It is hard to imagine much better evidence of a Brady violation than a document saying the prosecution had declined to investigate MSHA employee claims that the then MSHA Ventilation Specialist was destroying, altering, changing the date of, and forging signatures on mine ventilation documents. Particularly given that this was the same ventilation specialist who had required that the ventilation be changed in a manner that cut the airflow volume in half prior to the mine exploding.

(4) It is especially disturbing that the government kept these claims hidden even as I was publicly proclaiming that it was MSHA’s ventilation plan that had caused the mine to explode. Equally bothersome is the fact that the trial Judge relied on Ruby’s claim, that he had no prior knowledge of document destruction, when deciding not to allow the Jury to know about Ross’s sworn statement.

(5) In short, Ruby became aware that a lead prosecution witness had made a sworn written statement that he had been told that MSHA was destroying documents, and Ruby had been informed that other MSHA employees had corroborated his lead witness’ claim that Mackowiak had destroyed documents. But Ruby did not inform the Judge or the defense of these claims. These are clear Brady violations.

2) APPLAUD LETTER

The MSHA district manager had written what came to be called an “applaud letter” regarding Massey’s mine safety initiative. The letter was complimentary of Massey’s efforts to, among other things, reduce mine violations. The letter was proof, that contrary to the government claim that Massey did not try to prevent mine safety violations, MSHA itself was applauding Massey’s efforts. This letter was not disclosed to my defense attorneys by the government (Ruby/Goodwin), but my attorneys were able to get a copy of the letter prior to trial from other sources. Ruby claimed when my attorneys presented the letter at trial that he first learned of the letter when it was attached to my attorneys’ defense motion.

But OPR itself determined that Ruby’s assertion that he had not seen the letter before it showed up in my defense attorneys’ motion was “not entirely correct.” (OPR words) OPR discovered that while Ruby may not have had the letter that he himself was fully aware of the letter. Ruby was present at a meeting where the letter was discussed in detail and the government had taken extensive notes during the meeting with a witness’ attorney about the “applaud letter.” Later, the same day of that meeting, the government’s note taker sent Ruby an email detailing the contents of the “applaud letter.” OPR thus properly concluded that while Ruby may not have had a copy of the “applaud letter,” he was well informed about the contents of the letter long before trial. The OPR report says that Ruby’s statement to the Judge that he was not aware of the letter until he saw it in my defense attorney’s motion was “not entirely correct”. Anyone else would have just said Ruby’s statement was a “lie”.

The fact is that Ruby lied about the applaud letter. Another clear Brady violation.

3) MOI’S NOT DISCLOSED

OPR determined that the prosecutors withheld 50 MOIs from the defense in “reckless disregard” of their obligations. Although, Ruby initially told OPR that he was the “prosecution team member primarily responsible for decisions regarding what material should be disclosed to the defense” he later said that his initial statement “did not accurately describe” who made decisions as to what exact material to disclose to the defense.

In short, Ruby changed his tune once he realized it was best for him that he not claim to be responsible for deciding what material to provide to the defense. Ruby then said that after I was indicted, my attorney’s “conducted an extremely aggressive defense” which included “personal attacks on Goodwin.” Ruby said “these aggressive attacks caused Goodwin to change his views regarding the scope of the government’s future disclosures.” According to Ruby, “Goodwin decided that the government would disclose only material that was required to be disclosed by applicable rules and policies. As one consequence of this policy change, they decided that the government would not disclose any MOI that reflected a post-indictment interview.”

Ruby made the claim that Goodwin directed him not to disclose the post indictment MOIs in testimony to OPR. OPR states in their report it could not ask Goodwin about Ruby’s claim because Goodwin “chose not to fully cooperate” with the OPR investigation. What Goodwin actually did was refuse to meet with, talk to, or cooperate with OPR. However, Goodwin did send OPR two letters essentially calling Ruby a liar. In one letter, Goodwin stated: “If anything was not produced, I am confident it must have been inadvertent . . . It is frustrating to me if memoranda of interview were not turned over.” In a later letter after being informed of Ruby’s testimony, Goodwin claimed “I apparently do not recall matters in the exact way [Ruby] does” and that “Any perception that I did or did not do something because of personal attacks made on me and my family by the defense is absolutely false.”

FACTS

(1) OPR discovered that 61 MOI’s were not turned over to the defense, and that 50 post indictment MOIs were intentionally withheld, and that only one MOI that was completed from post indictment interviews was turned over

(2) OPR determined that perhaps 100 discoverable statements were not provided to the defense, and when Ruby argued the defense had all that evidence from elsewhere, OPR sent Ruby the 100 statements and asked where else the defense could have otherwise gotten the information. Ruby did not respond.

(3) Ruby says “Goodwin said not to turn over post indictment MOI’s.” Goodwin says “I am confident it must have been inadvertent” and that ”It is frustrating to me if MOI’s were not turned over.” Either Ruby or Goodwin is lying or both.

(4) Ruby also told OPR that “all members of the prosecution team were aware and approved of the decision not to disclose post-indictment MOI’s.” In fact, Ruby said to OPR “the decision to make disclosures from post-indictment interviews by means of letters rather than production of full interview memoranda was a decision made by the prosecution team, and ultimately the then-U.S. Attorney [Goodwin].” Unfortunately for Ruby, all of the other prosecution team members said they were unaware that the government had intentionally not disclosed post indictment MOI’s, and expressed surprise to hear MOI’s were not disclosed.

(5) In April of this year Goodwin seemed to retract his own statement that “It is frustrating to me if MOI’s were not turned over.” On April 19, 2018 Goodwin sent a letter to OPR in which he defended the decision not to disclose MOI’s by asserting that post indictment MOI’s were “prepared during trial preparation, and their disclosure would have revealed the prosecution’s trial strategy.” OPR disagreed with Goodwin’s conclusion and stated that some of the undisclosed MOI’s “did not relate to its trial preparation strategy.”

(6) Ruby finally acknowledged to OPR, a little of the truth when he later stated “All I can say is that, I mean, to be bluntly honest, I didn’t keep track of them [MOI’s]”.

4) RUBY LIES TO JUDGE

On February 6, 2015 my attorney’s filed a motion asking the Judge to “Enforce the Government’s Brady Obligations.” In response Ruby did not inform the Judge that he was withholding MOI’s but instead he implied to the Judge that he was providing MOIs.

On May 6, 2015 (three months later) my attorneys filed another motion requesting all “notes of witness interviews.” The government opposed the motion stating, “the United States has exceeded its discovery obligations by producing . . . typed [MOI] reports that summarize witness interviews, regardless of whether they contain exculpatory information.” Again, Ruby did not inform the Judge he was intentionally withholding MOI’s.

On July 8, 2015 (2 months later) my attorneys filed yet another motion asking for any undisclosed MOIs. Ruby responded, “the United States has already produced memorandums that memorialize the substance of those interviews.” Again, Ruby did not inform the Judge that he was intentionally withholding MOI’s.

MOI’s that Ruby did not disclose contained exculpatory material and they should have been turned over prior to trial. By the time the MOIs were finally disclosed I had already served time in prison and was in a halfway house.

In regard to one of the discoverable statements, the OPR report says “the statement was potential impeachment material as to [redacted], one of the government’s most important witnesses, which would be required to be disclosed by Giglio v. United States.”

Ruby’s lies continued even during trial. A key government witness testified that he “had told the prosecution that he had not conspired with Blankenship, and that Blankenship wanted violations reduced”. My attorneys Immediately alleged that this was more evidence of government Brady violations. But Ruby told the court “We have also turned over 302s [MOIs] from our interviews with this witness . . . and so to the extent that there is exculpatory information that we had from this witness, that’s been turned over to the defense.” This was another Ruby lie.

Again, Ruby did not tell the Judge that MOI’s had not been turned over. The truth was that 5 of the 6 MOI’s prepared to document Ruby and FBI interviews with this lead witness had not been turned over.

5) RUBY AND GOODWIN WITHHELD EXCULPATORY DOJ EMAILS

The OPR report states that on March 27, and March 30 2015, which was months before trial that DOL sent Ruby discs containing 936 emails marked as being potentially exculpatory. The OPR report also says that “Because no prosecution team member could recall with any certainty whether any of the 936 emails . . . had been disclosed,” OPR asked the current United States Attorney’s Office what happened to the 936 emails.

The current USAO discovered that Ruby had asked his staff to review the 936 emails in April of 2015 (months before trial) and that the emails had been reviewed. Ruby and Goodwin were informed by the staff that some of the emails contained extraordinarily exculpatory statements “about how MSHA inspectors ‘did not know how advance notice worked’”. In fact, MSHA inspectors did not even believe that miners informing one another that inspectors had arrived was a civil violation let alone a federal crime. Yet, that was the crime I was charged of conspiring to commit. You cannot have evidence more exculpatory than that, ie that the government itself does not believe that what the miners were doing was a crime.

On November 17, 2017, two years after I was convicted of conspiring to do something even MSHA inspectors did not consider a crime and after Ruby had left his position at DOJ the current United States Attorney’s office sent my attorneys 48 of the 936 emails and I then disclosed some of those emails to the public.

OPR says in its report that it did not reopen its investigation after learning this additional withheld material because its investigation was substantially complete. However, these new materials should clearly have changed the conclusion of the OPR report which was that Ruby nor Goodwin intentionally withheld exculpatory material. Although it is obvious to any fair minded person even before these DOL emails were uncovered that much of what Ruby and Goodwin withheld was intentionally withheld, these emails add even more evidence that their violations of Brady were intentional.

Intentional or not, Goodwin and Ruby committed many Brady violations. A jury would not have convicted an accused person of a crime that the government inspectors did not know was a crime. Nor would they convict someone if they knew that MSHA had destroyed evidence and that prosecutors were keeping that fact hidden.

In summary, the Bill of Rights was written to protect Americans from individuals like Steve Ruby and Booth Goodwin. These two guys have disgraced themselves, their profession, the DOJ and the American justice system. At a minimum the American Bar Association’s Model Rules of Professional Conduct clearly require that both Steve Ruby and Booth Goodwin be disbarred.

This post contains only a fraction of what is contained in the OPR report.

Office of Professional Responsibility - Report on Investigation

Motion for Evidentiary Hearing

Motion to Vacate Conviction


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