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Judge suggests tossing Blankenship ruling
Former Massey CEO was convicted of misdemeanor in 2015

CHARLESTON — A federal magistrate on Monday recommended that the criminal mine safety conviction of Don Blankenship be thrown out, handing the former Massey CEO a procedural — but not final — victory.

While a jury convicted Blankenship of the misdemeanor in 2015, he has since argued the federal government did not hand over certain exculpatory evidence during the discovery phase of the trial.

Though Blankenship completed a one-year sentence in federal prison, he has sought to dismiss the conviction, arguing it cast "an ongoing cloud" over his professional and personal life.

In a ruling released Monday, U.S. Magistrate Judge Omar Aboulhosn sided with Blankenship.

"Based upon the undersigned's summary of the suppressed evidence and the evidence presented by the United States

to secure (Blankenship's) conviction, the undersigned does not have confidence in the verdict," Aboulhosn wrote.

The 60-page writing is only a recommendation to U.S. District Judge Irene Berger, the trial judge in Blankenship's case. It is not a final order.

Blankenship was convicted in December 2015 of conspiring to violate federal mine safety and health standards at the Upper Big Branch Mine in the months prior to the 2010 explosion that killed 29 miners.

Blankenship wasn't charged with or convicted of causing the deadly explosion. But the allegations against him focused on a variety of violations, such as inadequate ventilation and the failure to clean up coal dust, that multiple investigations concluded caused the worst coal-mining disaster in a generation.

Following the conviction, federal prosecutors sent over scores of documents including reports on witness interviews and government documents that Blankenship's lawyers say should have been provided before the trial. The documents include write-ups of witness interviews and MSHA documents.

Aboulhosn emphasized in his opinion that the evidence does not vindicate Blankenship, only that it could have resulted in a different verdict. The word "could" is in boldface and underlined in the order.

The federal magistrate rebuked any theory that then-U.S. Attorney Booth Goodwin or Assistant U.S. Attorney Steve Ruby acted in bad faith in charging and prosecuting evidence.

He referred to Blankenship's claims that his prosecution was politically motivated as "vitriolic rhetoric" not supported by "a scintilla of evidence" that Ruby or Goodwin, who led the prosecution, acted in bad faith or with malice toward Blankenship.

"A detailed and thorough review of the evidence in this case clearly shows that, while errors were made and that those errors, while collectively reviewed, could have resulted in a different verdict, the undersigned did not find that the actions taken by the United States were malicious or done in bad faith," Aboulhosn wrote.

Regarding those errors, Aboulhosn said given how the case against Blankenship relied on numerous citations from MSHA against Massey Energy, testimony concerning inadequate mine staffing, and testimony that Blankenship emphasized coal production over safety, the withheld documents could have been important to Blankenship's defense — and therefore should have been turned over.

Among the documents were previously undisclosed memos that detailed FBI interviews with two of the government's main witnesses against Blankenship: Chris Blanchard, then president of the Massey subsidiary that operated Upper Big Branch, and Bill Ross, a longtime federal mine ventilation expert who joined Massey and later warned Blankenship before the explosion about serious safety problems at the mine.

Aboulhosn's recommendation states that reports of several interviews with Ross and Blanchard provided evidence that was favorable to Blankenship. Those reports, the magistrate wrote, could have undercut the government's case that Blankenship knew of serious safety violations regularly occurring at the mine but tacitly regarded them as acceptable so long as the mine produced coal.

The suppressed evidence, Aboulhosn wrote, "could have resulted in a weaker case for the United States and a stronger one for" Blankenship.

Blankenship could not be reached through an aide for comment Monday. He told WV MetroNews the order "is a positive, but it's not over."

In an emailed statement, Goodwin declined to comment, citing the fact that Berger has yet to ultimately rule on the matter.

Blankenship unsuccessfully ran for U.S. Senate in 2018, and focused much of his campaign in the Republican primary proclaiming his innocence in connection with UBB.

Berger sentenced Blankenship to one year in prison and a $250,000 fine — the maximum allowed under law. The 4th U.S. Circuit Court of Appeals upheld the decision, and the the U.S. Supreme Court declined to consider a further appeal, a decision that the Trump administration's DOJ supported.

A Department of Justice probe in August 2018 found that government lawyers didn't withhold evidence from Blankenship that would've been material to the trial.

In November 2018, U.S. Department of Justice lawyers urged a federal court not to overturn Blankenship's conviction, saying Blankenship hadn't proven the information would have changed the outcome of his trial. At the time, the Justice Department said that some of the documents weren't turned over to the defense team, but that they weren't germane to the trial.

Staff writer Ken Ward Jr. contributed to this report.

Reach Jake Zuckerman at Jake.zuckerman@wvgazette-mail.com, 304-348-4814 or follow @Jake_zuckerman on Twitter. Reach Kate Mlshkln at kate.mlshkin@wvgazettemail.com, 304-348-4843 or follow @KateMlshkln on Twitter.


Classes now in session for Marshall University students

HUNTINGTON — Marshall University is bustling once more as students made their way to their first day of class for the 2019 fall semester.

Official enrollment numbers won't be available until October, but the university said freshmen enrollment is up about 3 percent. The number of high school students taking college courses at Marshall is also up significantly, said Leah Payne, director of communications.

Herd fans of all walks of life on Thursday can celebrate the return of football season this weekend via the Herd Rally in Pullman Plaza, the final week of the Pullman Concert Series. The free event begins at 6 p.m. Thursday with music and a Herd fashion show beginning at 6:30 p.m. The pep rally with players, coaches, cheerleaders and the Marching Thunder begins at 8 p.m. The rest of the evening will feature music from Madhouse.


New HPD contract approved at meeting
Agreement includes pay raises over the next three years

HUNTINGTON CITY COUNCIL

HUNTINGTON — Huntington City Council members on Monday night approved a new contract between the city and the police department union, and it includes raises over the next three years.

The contract also includes the option for officers to work 12-hour workdays, which would help them perform full-time patrols downtown, said Huntington Police Chief Hank Dial.

Following a two-month deadline extension, City Council members approved a three-year contract between the city and the Huntington FOP Gold Star Lodge No. 65 (FOP), the labor union representing city police officers.

The original deadline to approve a new contract was June 30, but council members agreed to extend the deadline to the end of August. At the time, city officials said the contract was already drafted, but required more proofreading.

Christopher Slaughter, of Steptoe & Johnson PLLC, gave council members a summary of several changes made in the new contract. Slaughter is the outside labor counsel working on negations between the city and its bargaining units.

Slaughter said among the changes is the option for raises over the next three years.

Retroactive to July 1, officers will now receive a 5% raise. In year two of the contract they will receive another 5% raise, which will become effective July 1, 2020. In the third year of the contract, officers will receive a 2% raise, effective July 1, 2021.

There are no changes to the premium cost or healthcare coverage offered to active and retired officers.

Also among the changes is the addition of assigned 12-hour workdays, which will not go into effect until July 1, 2020. Officers working these shifts will not be allowed to work more than 84 hours.

"The 12-hour shift will enable us to us to do a lot of things," Dial said. "One of the things it will allow us to do is put more people on patrol and enable us to have our downtown patrols on a full-time basis."

Dial explained the 12-hour shifts to the city's Administration and Finance Committee, which meets prior to City Council. Committee members had agreed to forward a resolution in support of a 14-day work period for officers assigned to shifts. The resolution will require approval by members of City Council before it is adopted.

Dial said as the city's violent crime rate continues to fall, officers now have more leeway to reduce other types of offenses, such as property and street-level crimes. The department has now implemented a two-person patrol — which will switch between being on foot or on bike — to watch downtown and Marshall University areas as needed.

The contract makes minor changes, such as changing "paternity leave" to "parenting leave" to reflect that fathers may also take time off during the births of their children. It also adds a non-discrimination policy to match a similar one adopted by the city.

Travis Crum Is a reporter for The Herald-Dispatch. He may be reached by phone at 304-526-2801.


Okla. judge rules against drugmaker in opioid suit
Johnson & Johnson ordered to pay $572M in first state case to go to trial

NORMAN, Okla. — An Oklahoma judge on Monday found Johnson & Johnson and its subsidiaries helped fuel the state's opioid crisis and ordered the consumer products giant to pay $572 million, more than twice the amount another drug manufacturer agreed to pay in a settlement.

Cleveland County District Judge Thad Balkman's ruling followed the first state opioid case to make it to trial and could help shape negotiations over roughly 1,500 similar lawsuits filed by state, local and tribal governments consolidated before a federal judge in Ohio.

"The opioid crisis has ravaged the state of Oklahoma," Balkman said before announcing the verdict. "It must be abated immediately."

The companies are expected to appeal the ruling to the Oklahoma Supreme Court.

Before Oklahoma's trial began May 28, the state reached settlements with two other defendant groups — a $270 million deal with OxyContin-maker Purdue Pharma and an $85 million settlement with Israeli-owned Teva Pharmaceutical Industries Ltd.

Oklahoma argued the companies and their subsidiaries created a public nuisance by launching an aggressive and misleading marketing campaign that overstated how effective the drugs were for treating chronic pain and understated the risk of addiction. Oklahoma Attorney General Mike Hunter says opioid overdoses killed 4,653 people in the state from 2007 to 2017.

Hunter has called Johnson & Johnson a "kingpin" company that was motivated by greed. He specifically pointed to two former Johnson & Johnson subsidiaries, Noramco and Tasmanian Alkaloids, which produced much of the raw opium used by other manufacturers to produce the drugs.

On Monday, Hunter said the Oklahoma case could provide a "road map" for other states to follow in holding drugmakers responsible for the opioid crisis.

"That's the message to other states: We did it in Oklahoma. You can do it elsewhere," Hunter said. "Johnson & Johnson will finally be held accountable for thousands of deaths and addictions caused by their activities."

"They've been the principal origin for the active pharmaceutical ingredient in prescription opioids in the country for the last two decades," Hunter said after the trial ended July 15. "It is one of the most important elements of causation with regard to why the defendants ... are responsible for the epidemic in the country and in Oklahoma."

Attorneys for the company have maintained they were part of a lawful and heavily regulated industry subject to strict federal oversight, including the U.S. Drug Enforcement Agency and the Food and Drug Administration, during every step of the supply chain. Lawyers for the company said the judgment was a misapplication of public nuisance law.

Also on Monday, the Kentucky Supreme Court declined to review an earlier ruling, making previously secret testimony from former Purdue Pharma President Rickard Sackler and other documents public. The court record was sealed in 2015 as part of a $24 million settlement between Purdue and Kentucky.

The 17 million pages of documents were being shipped Monday from Frankfort to Pike County, where the case originated. The Pike County Circuit Court Clerk's office could not immediately say how and when they would be available.