Judge asked to loosen gag order in Blankenship criminal case

BECKLEY, W.Va. -- A lawyer for the Charleston Gazette and other media organizations on Wednesday urged a federal judge to loosen restrictions on information about Don Blankenship’s criminal case.

Also, Blankenship’s defense team indicated they plan to ask that the former Massey CEO’s trial be moved out of Southern West Virginia.

Sean McGinley, lawyer for the Gazette and other news outlets, told U.S. District Judge Irene Berger that her Nov. 14 order sealing court records in the case and prohibiting statements to reporters interferes with the First Amendment rights of journalists to gather news and limits the public’s right to information about the case.

“The gag order is a prior restraint on speech,” McGinley said during a hearing in Beckley. “The gag order is overly broad on its face.”

McGinley argued that access to information about criminal cases can only be restricted by courts if doing so is “absolutely necessary” to prevent a direct and immediate threat to the defendant’s right to a fair trial. Also, McGinley explained, judges are required to consider alternative means to protecting the defendant’s right, such as more careful jury selection, and must show that restricting access is an effective means to ensure an impartial jury.

McGinley argued that Berger had not made such findings when she issued her gag order in the Blankenship case the day after Blankenship was indicted.

Berger promised to rule soon on the media motion challenging the gag order, and also said that she would grant a motion by Blankenship’s legal team to delay a Dec. 30 deadline for pre-trial motions, a move that the judge indicated would also delay the trial, which is currently scheduled to start on Jan. 26.

William Taylor, lead lawyer for Blankenship, told the judge that the defense team needed more time to prepare various pre-trial motions, including some that would seek to have the indictment thrown out and another that would ask that the trial be moved from its current location in the Beckley division of U.S. District Court for Southern West Virginia.

Taylor said that 30 years’ of publicity about Blankenship’s various controversies, including his battles with the United Mine Workers’ union, his history of significant political campaign contributions, and his outspoken stance on public policy issues, make it impossible for him to get a fair trial in the region. Taylor complained that soon after the indictment was made public, numerous state political leaders had issued “inflammatory” statements about it, and even before that “there had been years of negative publicity regarding Mr. Blankenship.”

Taylor said preparing the “change of venue” motion will take time, because defense lawyers will need to have scientific public opinion surveys taken and collect large numbers of examples of local media coverage to support their motion.

Taylor told Berger that as long as the trial remains in Southern West Virginia, the defense supports keeping the existing gag order in place.

Also, regarding general trial preparation, Taylor also said that the defense needs more time to review millions of pages of documents and to get ready to cross-examine up to 23 witnesses he said had received immunity from the federal government to testify against Blankenship.

“We need a year,” Taylor said. “That sounds like a long time. But the government has had four and a half years to prepare this indictment.”

Berger did not immediately announce new deadlines in the case, but said that ruling would also come soon.

Assistant U.S. Attorney Steve Ruby said federal prosecutors have decided that, regardless of how Berger rules on the gag order issue, they will not be discussing the Blankenship case with the media. Ruby said U.S. Attorney Booth Goodwin was not taking a position beyond that on the media motion to remove or loosen the gag order.

During a press conference in Charleston Wednesday, where charges were announced related to the Freedom Industries chemical leak, Goodwin was asked what information his office would be releasing about the Blankenship case if the gag order was lifted.

“We generally announce charges, like we’re doing now, and then step back,” Goodwin said. “We don’t beat the drum for the period of time when we’re in litigation, so that’s not something we do anyway. So you would imagine even if an order such as that is lifted, we’re not going to be saying much. Our focus, our goal, is to make sure that we conduct the litigation in an appropriate fashion, recognizing the public’s interest and the defendant’s interest by a fair and speedy trial.”

During the hearing in Beckley, Ruby also said that the government believes that Blankenship can get a fair trial without moving the case out of Southern West Virginia.

Under the Sixth Amendment to the U.S. Constitution, defendants in criminal cases have a right to a “speedy and public trial” by an “impartial jury of the state and district” where the alleged crimes were committed. In limited cases, trials can be moved to a different district at the defendant’s request, if extraordinary local prejudice will prevent a fair trial. The U.S. Supreme Court, though, has also found that pre-trial publicity, “even pervasive, adverse publicity” does not “inevitably lead to an unfair trial.”

Blankenship faces a four-count indictment that alleges he conspired to violate mine safety rules, hamper federal safety enforcement and lie to securities regulators and investors. The indictment focuses on events at Massey’s Upper Big Branch Mine, in Raleigh County, where 29 miners died in an explosion on April 5, 2010.

The broad gag order issued by Berger the day after Blankenship was indicted restricts access to legal filings and prohibits prosecutors and defense attorneys from talking to the news media about the case.

Under Berger’s gag order, actual filings by the parties and orders by the court are not available to the public or the news media. Only court computer system docket entries — short summaries of legal filings written by the court or the lawyers involved — are publicly accessible.

Other news outlets challenging the gag order include National Public Radio, the Friends of West Virginia Public Broadcasting, The Associated Press and The Wall Street Journal.

Berger’s prohibition on talking to the media applies to the parties and their lawyers, “potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the defendant” and to any court personnel.

Earlier this month, a docket entry indicated that Blankenship’s lawyers had asked to delay the trial. But because of the gag order, their reasons for seeking the delay had not been clear.

Generally, the Speedy Trial Act requires trials to occur within 70 days of indictment. That deadline can be waived by defendants with approval from a judge, under certain circumstances.

Reach Ken Ward Jr. at kward@wvgazette.com, 304-348-1702 or follow @kenwardjr on Twitter.

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