The government, as was scheduled, filed its motion in opposition to invalidating my conviction on Friday November 16, 2018. Their position was exactly as expected. Generally, they agreed they were bad boys and withheld discoverable evidence favorable to the defense but they say, 1) it was my responsibility to find the information that was important to my defense and, 2) that the evidence I may not have been able to find on my own was irrelevant and unimportant.
GOVERNMENT FILING FILLED WITH PROPAGANDA
As the government has done from the beginning of this corrupt fiasco their filing first repeats their Upper Big Branch self-serving rhetoric. It is amusing that the government which would not allow any discussion, testimony, evidence, or reference to the explosion during my trial slyly and improperly uses the explosion, an explosion that the government itself likely caused, as background for every communication it makes about my misdemeanor conviction. It seems that the prosecutors, like the national media, do not know that I was not charged with, tried for, nor convicted of having anything to do with the explosion. In fact, the government is so afraid of the UBB truth that they did not have a single Mine Safety and Health Administration (MSHA) inspector or explosion investigator even appear at trial. Also the Judge ordered, over our objection, that no evidence relative to the explosion was admissible.
The government’s use of the explosion as the background for their charges against me while not allowing the explosion to be a subject of discussion at trial is judicial propagandizing. It is Judicial misinformation. It is Judicial and Department of Justice manipulation of the truth. It is unfair, improper, evil and unconstitutional. It is an implicit accusation by my accusers, which I am not afforded the opportunity to confront, as is required by the Constitution.
The government’s filing is also a sickening display of ignorance and evilness. For example, it claims that I pushed for a mining section to be placed back into production without a “legal return airway”. This is entirely false. What I pushed mine management to do was set more pumps to more quickly clear the water from a “blocked return airway” so that the mine section could be returned to production with a “legal return airway”.
The reason it is “pure evil” is that they continue to misrepresent the truth in order to sustain a conviction they know was achieved by misrepresentations. They also misrepresent other issues as if they were members of the media rather than representatives of the American justice system. They, for example, intentionally misrepresent that I directed mines to run coal versus build needed ventilation overcasts. This is something the media has repeatedly said and which is also entirely false.
What I directed was that overcasts not be built if the overcasts were not going to be needed in the near term. In a memo I released following a meeting where this was explained at length I said, “run coal, do not build overcasts, we will worry about ventilation later”. Any coal mine manager knows that if two airways are intersecting you have to build the overcast at that time. But this memo was directed toward a mine that had stopped production to build an overcast that would not be needed until five years in the future. The very next day a memo further explaining the first memo was sent out. Regardless, all of this was years before the UBB explosion and the government knows that. Essentially, in layman terms, the government by writing about the first memo and not the second clarifying memo is still withholding relevant material information from the court. Additionally, neither the witness testimony about the overcasts nor the return airway have anything to do with the issue now before the court.
FILING FINALLY ADDRESSES THE QUESTION AT HAND
After several pages of their filing being nothing more than prosecution propaganda, that is totally unrelated to the issue of whether I received a fair trial in compliance with the US Constitution and Department of Justice rules, the new government filing finally gets to the question at hand. The government filing says “the United States does not dispute that some materials should have been disclosed” that were not. They continue “however these errors are not sufficient to entitle the defendant to relief”. In other words, they agree they did wrong but it does not matter because all they have to do is say it does not matter. They say courts have ruled that prosecutor errors of failing to disclose “insignificant” favorable evidence does not warrant a new trial or invalidation of the verdict.
What the prosecutors do not say is that if the court is to rule properly and based on the facts of my conviction it must rule that the prosecutors intentionally, ie not in error, withheld significantly favorable evidence and that it warrants invalidation of my conviction. Additionally, the court should recognize that the prosecutors intentional actions clearly evidence their “state of mind” and their “evil intentions”. The DOJ reports on investigation interviews, ie MOIs as they are called, which Assistant US Attorney Steve Ruby has sworn he intentionally withheld because US Attorney Booth Goodwin ordered him to do so, unquestionably contain extremely significant evidence. The government itself listed one hundred, (that’s 100) withheld statements that they believed were favorable to my defense and which were not provided to me. The DOJ even asked Ruby to comment on how I could otherwise have learned of the one hundred statements and Ruby simply would not respond.
The government filing goes on to say that the government has no duty to turn over evidence to the defense that the defense should have known. Essentially they are claiming I should have known all the things that they think are significant to the conviction and that anything I could not have learned of on my own was not important. This obviously ignores the fact that Ruby nor anyone at DOJ has replied to the question of where I was to learn of the 100 undisclosed MOI discoverable statements. Statements that were clearly favorable to the defense.
Yes, even the government agrees that these withheld MOIs contain many arguably discoverable statements. Statements that would have been favorable to my defense. However, they say it was my responsibility to learn of these statements because I knew the persons who made the statements, they worked for me, and I had enough money to hire more attorneys to find out what was said.
Basically the government position is that since I know people, I once employed these people and I have money that the DOJ does not have to comply with the Constitution. Nor does the DOJ have to comply with their own rules of conduct. Essentially they are arguing that the Constitution does not apply equally to me. Interestingly, this is consistent with their argument that “my free speech troubles the United States” and so I should be treated more harshly than other Americans are.
DOJ SAYS MSHA DESTROYING MATERIALS IS ALSO IRRELEVANT
The filing gets even more bizarre when it addresses MSHA conduct and documents. Their filing literally says “the MSHA materials” (destroyed and withheld) “neither relate to the defendant’s criminal charges, nor would they have led to evidence that would have supported his defense”. Hilariously, they then claim that this is so (ie the claims of destroyed evidence did not relate to my conviction) because they investigated it. They say their investigation revealed that none of the MSHA employees who were alleged witnesses of document destruction had any knowledge of any document destruction. They do not say whether there was any evidence of document altering, or backdating, or initials being forged.
The prosecutors also do not address how the Jury would have reacted to the MSHA employees’ statements. Statements by MSHA employees like “Mackowiak got away with it”, ie changing document dates and initials. Perhaps the Jury would have concluded documents were altered and destroyed. But the Jurors never had that chance because my defense team was not told of these claims. The fact the prosecutors did not conclude that documents were destroyed does not mean that the Jury would have concluded that documents were not destroyed.
Prosecutors cannot be certain that such statements by MSHA employees would not have put doubt in the Jurors’ minds. They cannot be sure Jurors would have reached the same conclusion as the government if Jurors had gotten to hear what the MSHA employees said. The very fact an investigation into claims by MSHA employees that document destruction had taken place is in and of itself exculpatory and my defense had no knowledge of the investigation. Also I did not know these MSHA employees. Certainly, my money would not have allowed me to learn of their claims nor of the government’s alleged investigation of those claims.
Above all this, many readers may remember that in addition to MSHA employee claims of document destruction there is also the explosion investigation team email which my defense learned of after trial wherein one investigator says to another “we had a shredding party at Beckley last night and we made the charts unreadable”. How is my money supposed to uncover that?
One of the persons claiming he was told that Mackowiak destroyed documents was the lead witness against me. If the government believes this lead witness is lying about what he was told by his former secretary why does the government believe what he says he was told by Massey miners, which was a big part of his trial testimony. The fact the government does not believe their own witness is itself exculpatory.
The government filing is literally a “Saturday Night Live” script. It says for example that an email between MSHA investigators saying that inspectors knew the UBB miners were telling each other that inspectors had arrived but did not believe it was a violation or illegal “is not material to my defense because the email was sent January 24, 2012, which is after the indictment period”. How crazy is that? The entire accident and criminal investigation and everything used at trial was done after the indictment period. You cannot investigate something before it happens.
Yes this is “Saturday Night Live” material. The government filing argues more than once that investigation materials written “after the indictment period” are irrelevant because they were written “after the indictment period”.
The government also argues that evidence of disagreement among MSHA investigators as to MSHA being responsible for the ventilation plan was irrelevant. How can the government argue, that evidence that some MSHA investigators believed MSHA was responsible for a faulty ventilation plan, is irrelevant to my conviction? Certainly if the Jury knew that MSHA itself believed they were responsible for a faulty ventilation plan that resulted in safety violations it would have been very relevant. The government filing supports their argument by saying the Judge ruled at trial that disagreements between Massey persons and MSHA inspectors as to the impacts of a government required ventilation plan was inadmissible. But the evidence does not relate to a dispute between Massey and MSHA but rather it evidences a dispute between MSHA and MSHA. Again it is ‘Saturday Night Live’.
In short, as to MSHA withheld evidence, the prosecution actually argues that the evidence is irrelevant if it was evidence disclosed in documents that were generated after the indictment period.
LET ME BE CLEAR
The United States Department of Justice and the American justice system are corrupt. President Trump is right when he says there are Obama Judges. Chief Justice Roberts is wrong when he says there are not. Most all Americans know that. Most important in my case is that I am innocent and the Jury found me guilty only because they did not have the information which the government purposefully withheld.
The prosecutors and the judiciary are not only in violation of the US Constitution. They are in violation of internationally recognized human rights including the right to a fair trial.
International fair trial monitors object to the Executive Branch of any government declaring an accused person guilty before trial yet former President Barrack Obama did essentially that. International law also frowns on Legislative Branches of government getting involved in trials, for example Jay Rockefeller saying “a fair trial was more than Don deserves”.
They also frown on nepotism such as existed in my case. ie Prosecutor Goodwin being the son of a Federal Judge in the same district where my trial took place.
International trial monitors would want Courts to error in favor of a defendant’s right to recross after new evidence is put in to evidence during redirect but the Judge ruled I could not do recross of a key witness after dozens of new documents were introduced on redirect.
International court monitors are also wary of Judges and prosecutors being affiliated with the same Social and Political Groups such as unions and political parties. Clearly this is of interest in my trial given how much political involvement has been apparent.
International monitors also express concern that social status not be allowed to play any role in trials. Yet, prosecutors in this recent filing suggest, actually they openly argue, that my rights differ from others because of my social and financial status. It’s incredible that they argue that I could have overcome their misconduct if I had spent more money and hired more attorneys. They essentially claim they are excused from honoring my human and Constitutional rights to equal protection under the law because of my financial status.
The summary is that the conduct of the DOJ and the judiciary in order to convict me of a misdemeanor does not only fail to adhere to the US Constitution it does not even meet international standards. The current Judge presiding over my case now is under tremendous political pressure. Pressure may come from former Congressman Nick Rahall, or former President Barrack Obama, or from Joe Manchin, or Booth Goodwin’s father—ie Judge Joe Goodwin, from the trial Judge, or even from Mitch McConnell. The pressure can come from anywhere in the government because they do not want the UBB truth to be known or for me to be a stronger political opponent.
The government says my “free speech troubles” them but they seem to have forgotten that my free speech is one of my Human Rights. The government workers need to understand that “their corruption troubles me”. But it does not matter who is troubled by what. The government did not have and still does not have a right to falsely uphold a conviction they achieved only by violating my rights. Yet they will likely uphold the conviction because they can and there is nothing we as American citizens can do about it.