BLANKENSHIP ASKS THAT FED JUDGE BERGER NOT VOID HIS MISDEMEANOR CONVICTION
Federal Magistrate Judge Omar Aboulhosn recommended on August 26, that my federal misdemeanor conviction be vacated due to Brady violations. The Brady violations were so numerous and so grotesque that the Judge did not bother to address obvious Jencks Act and Giglio violations which were also committed by Federal prosecutors.
The United States Department of Justice (DOJ) had until Friday, September 13 to file a motion in opposition to Judge Aboulhosn’s recommendation. The DOJ decided not to object and made no filing.
The DOJ’s decision not to file a motion in opposition to Judge Aboulhosn’s recommendation is an endorsement of Judge Aboulhosn’s findings of multiple Brady violations. By not objecting, the DOJ is also acknowledging that its former Southern West Virginia US Attorney Booth Goodwin, (son of Southern West Virginia Federal Judge Joseph Goodwin), as well as former Assistant US Attorney (AUSA), Steve Ruby, committed prosecution misconduct.
Judge Aboulhosn’s findings confirmed and expanded the DOJ’s Office of Professional Responsibility’s (OPR) findings which were issued sixteen months ago. The OPR investigation uncovered that Mr. Ruby intentionally withheld all post-indictment Memorandums of Interview (MOI), because he believed Mr. Goodwin had instructed him to do so.
Ruby further testified that he believed then US Attorney Goodwin’s direction to withhold all post-indictment MOIs was in response to my attorneys having filed a recusal motion. The motion asked that the entire Southern West Virginia Federal Court be recused, because my attorneys believed Booth Goodwin, a Federal Judge’s son working in the same courthouse, was guilty of prosecution misconduct.
The basis of asking Judge Berger to recuse the entire Southern West Virginia Federal Court was that the then US Attorney Booth Goodwin’s father, Joseph Goodwin, sits on the same federal judicial bench. My attorney’s argument was that a Judge that was being asked to make a ruling that a colleague’s son had committed prosecution misconduct would not appear to be impartial in the eyes of the public. Judge Berger ruled against the recusal motion.
In addition to Ruby testifying that he understood Booth Goodwin to have directed him to withhold all post indictment MOIs, Ruby further testified to OPR that the inclusion of a picture in the recusal motion further offended the Goodwins. The picture showed Judge Goodwin’s office desk and sitting on the desk was a picture of the Judge’s son, then US Attorney Booth Goodwin. Ruby said the Judge and the then US Attorney took this as a personal attack on them. Ruby said he believed that is why then US Attorney Goodwin directed him to withhold the post-indictment MOIs.
AUSA Ruby, doing as he believed he had been instructed to do, intentionally withheld 61 MOIs—11 of which Ruby mistakenly thought were post-indictment but which were actually pre-indictment MOIs. Only 2 of the 61 MOIs were the subject of any discovery letter that was provided to my defense team. OPR found that even that discovery letter was inadequate. Judge Aboulhosn found and recited in his recommendation ruling that what was in these withheld MOIs constituted Brady violations.
Additionally, there are many other examples of improper prosecution behavior that was uncovered by OPR and my attorneys. Some of these acts of misbehavior were not cited by Judge Aboulhosn in his recommendation.
Included in this improper behavior is the story of a missing internal Mine Safety and Health Administration (MSHA) letter which complimented the company (Massey) on the improvements it had made at the UBB mine. Ruby claimed to have no knowledge of this complimentary letter.
But OPR found evidence in the prosecution office that Ruby was fully aware of the letter. OPR found detailed notes of the contents of the letter which were taken during a meeting which Ruby had attended. The government has still never produced a copy of that letter.
Goodwin nor Ruby ever turned over these notes about the letter either. The letter is undeniably very exculpatory and by itself was a significant Brady violation. Ruby clearly lied to OPR when he originally told their investigators he had no knowledge of the letter.
Another example of Mr. Ruby’s misbehavior is that the Office of Inspector General told Steve Ruby about claims by MSHA employees—Claims that UBB documents were destroyed after the UBB explosion. Specifically, Ruby was told that MSHA Ventilation Specialist Joe Mackowiac had destroyed, altered, backdated, and forged signatures on UBB related documents. Prior to the explosion, these documents had been in the MSHA office file vault. Those documents are still missing today.
Steve Ruby prosecuted and Judge Irene Berger sentenced a Massey security guard to prison related to his destroying UBB documents of which duplicate copies existed and were provided to DOJ. But United States Government employees have not even been investigated based on these allegations that they did far worse.
Ruby not only declined to investigate these claims by MSHA employees. He never informed Judge Berger nor my defense attorneys of these claims. Claims which provide more than a “scintilla” of evidence that exculpatory materials had been exfoliated and that Ruby was aware they had been exfoliated.
It would take a book to recite all the supporting evidence that Goodwin and Ruby’s misconduct was founded in bad faith and malice. Yet Judge Omar Aboulhosn described my efforts to inform the public about this prosecution misconduct as “vitriolic rhetoric.”
Judge Aboulhosn seemed unaware that my exposing DOJ prosecution misconduct is an action of public service and is my Constitutional right. Judge Aboulhosn also expressed no outrage that MSHA managers have themselves said that they destroyed evidence during a criminal investigation. Destroying evidence of a mine tragedy in an effort to destroy the truth is a “vitriolic action” which warrants “vitriolic rhetoric.”
Judge Aboulhosn also seemed unaware that Mr. Booth Goodwin’s behavior is bizarre and fully inconsistent with someone, who as Judge Aboulhosn wrote, just made “errors” that caused Brady violations.
After OPR had found Booth Goodwin guilty of “reckless misconduct,” he wrote to OPR that they should not issue their scathing report of him until after the 2018 West Virginia Primary election. His sole reason for suggesting that OPR delay issuing their report was because in his words, only a “scoundrel” (Blankenship) would be a beneficiary of their report. Judge Aboulhosn must know that calling a victim of your error a “scoundrel” is hardly the rhetoric one would expect of a reputable person who had simply made an error.
Mr. Booth Goodwin’s letter to OPR made clear that he had no remorse for having broken the law. No remorse that his misbehavior had led to the false imprisonment of an innocent American. No remorse that he had attempted to imprison an innocent American for the rest of his life.
Mr. Goodwin was so non-remorseful that he was still slandering and maliciously attempting to harm me even after he had been found guilty by OPR of having illicitly prosecuted me. He was so unconcerned about his gross misuse of the powers of his office that he was telling OPR that I am a “scoundrel” versus apologizing and explaining to OPR why he had made so many errors. Mr. Goodwin’s actions are the actions of a spoiled low-life, not of a person who made innocent unintentional errors.
Federal Magistrate Judge Aboulhosn went very far astray when he wrote that “the record does not establish a scintilla of evidence that then US Attorney Booth Goodwin or then Assistant US Attorney Steven Ruby acted in bad faith or with malice toward” me. With all due respect, there is a mountain of evidence that Booth Goodwin and Steve Ruby intentionally withheld 61 MOIs; that they knew the MOIs contained exculpatory evidence; and that they withheld them with the intent of falsely imprisoning an innocent American for the rest of his life.
Steve Ruby does not even deny that he intentionally withheld the MOIs. Mr. Ruby would have to be a moron not to know that the MOIs are filled with exculpatory evidence.
Justice will not be served in this matter if my misdemeanor conviction is vacated on the basis of Judge Aboulhosn’s recommendation which contains the false statement that Mr. Goodwin and Mr. Ruby did not act in bad faith and with malice. Therefore, I am hereby publicly asking and encouraging Judge Berger to REJECT Judge Aboulhosn’s recommendation. This will allow the Appeals court to properly “contextualize” Mr. Goodwin and Mr. Ruby’s malice and bad faith behavior as what it was and not as errors.
OPR wrote in their investigation report about Goodwin and Ruby’s prosecution conduct that it believes quote, “whatever discipline is necessary be taken to ensure that their (their being Goodwin and Ruby) actions are not repeated be taken”. In other words, OPR says Goodwin and Ruby should be disciplined so harshly that they nor others will ever repeat what Goodwin and Ruby did.
The Southern West Virginia Federal Court has shown itself unwilling to recommend that any action be taken against Goodwin or Ruby. Magistrate Judge Aboulhosn instead fully excused as errors the same actions that OPR said cannot be allowed to be repeated. Surely OPR was not recommending such harsh discipline as “whatever needs to be taken” for “errors.”
The Southern West Virginia Federal Court District needs to send this matter to an impartial Judge or group of impartial Judges. If the Southern West Virginia Federal District ignores the OPR recommendation, then what is the purpose of OPR’s report. At a minimum, the Southern West Virginia court must stop overtly condoning what Goodwin and Ruby did, else this Federal District will be inviting similar prosecutor misbehavior in the future. The court will be inviting prosecutors to falsely imprison innocent Americans again, however they can do so.
The Southern West Virginia court has shown itself to be nepotistic, political, and biased just as my attorneys feared it would be when the recusal motion was filed. Ironically, Mr. Goodwin immediately evidenced the validity of the recusal motion when he did more of what the motion correctly asserted he had already done, i.e. commit intentional Brady violations.
The Southern West Virginia Federal Court should not continue to destroy the confidence of the public in the American judiciary. It has already done enough damage in that regard.
The DOJ has yielded to the reality that intentional prosecution misconduct was rampant in my case. They did so following years of attempting to sustain an illicitly achieved “misdemeanor conviction” against me for political reasons. Yes, they only stopped their efforts to sustain the misdemeanor conviction when it was no longer politically beneficial to their US Senate cohorts to do so but they finally did it.
Judge Berger should now follow suit. She should tell the truth about Goodwin and Ruby, not for political reasons, but because it is the right thing to do. If Judge Berger cannot bring herself to do the right thing, because of concern for her colleague Judge Goodwin’s feelings, she should have recused herself from this case years ago.
My presumption is that Judge Berger recognizes the value of this case to those who unlike me are unable to defend themselves from prosecutor misconduct which is imbedded in opportunism, nepotism, bias, and politics. At my sentencing, Judge Berger said I could have been a hero but I chose to be a criminal. But she was wrong. I am not a criminal. I suspect that deep down she knows that.
Now Judge Berger can be a hero to those less fortunate and who may be falsely accused in the future. She can do so by telling the truth about Mr. Goodwin and Mr. Ruby. Conversely, she can choose to be a supporter of future atrocities which will be afflicted upon the less fortunate by ill meaning prosecutors like Goodwin and Ruby.
She also has a third and best choice. She can honor my request and reject Judge Aboulhosn’s recommendation if she cannot bring herself to tell the truth about her colleagues son. She can let an impartial Judge, who is not a friend and colleague of Judge Goodwin, write that Mr. Booth Goodwin and Mr. Ruby acted with obvious malice and bad faith in an effort to use the American justice system for their own personal gain.
Judge Berger can cause this matter to be addressed in a published Fourth Circuit decision so that it might be an even greater help to other falsely accused Americans. By doing so, she can allow another Judge to be the hero and restore at least a “scintilla” of judicial integrity. Judicial integrity that the Southern West Virginia judiciary has thus far destroyed by their mishandling of this corrupt attempt to imprison me for life.
American Judges and DOJ prosecutors need to grow up and tell the truth if this country is to stop imprisoning innocent Americans. As well, the UBB truth needs to be told if the MSHA explosion victims are to rest in peace and today’s miners are to be as safe as they can be.
Judge Berger needs to do what we at Massey always tried to do. It is time for her to do the right thing.
Don Blankenship—American Political Prisoner