With just a week left before jury selection is scheduled to start, lawyers for Don Blankenship have renewed their request to move the former Massey CEO's criminal trial.
Arguing that “saturation-level prejudicial publicity in this district has created a high degree of prejudgment,” Blankenship's defense team asked U.S. District Judge Irene Berger to move the case to Martinsburg or Baltimore to avoid a “powerful sense of community pressure for a guilty verdict.”
In a new court filing on Thursday, Blankenship's team argued that news coverage in Southern West Virginia “is magnitudes more pervasive and hostile toward Mr. Blankenship” than in the state's northern federal court district or in the northern district of Maryland.
“The unceasing and blatantly prejudicial press coverage of this prosecution has saturated the entire Southern District of West Virginia, making this an 'extreme case' that requires a presumption of juror prejudice and transfer to another district for trial,” the defense lawyers argued.
Blankenship faces charges that he conspired to violate mine safety standards before the Upper Big Branch Mine disaster occurred and, after the explosion, lied to securities regulators and investors about Massey safety policies in an effort to stop stock prices from plummeting amid widespread news reports about problems at the company's mines.
Blankenship is not charged with causing the April 5, 2010, explosion that killed 29 miners, but the charges against him focus on the Raleigh County mine where that blast occurred and the types of safety violations experts say led to the incident.
Trial is scheduled to start with jury selection on Oct. 1.
Berger already moved the case from Beckley to Charleston in response to Blankenship's complaints that he couldn't get a fair trial from a coalfield jury. Berger drew 300 prospective jurors from the southern district's Charleston and Huntington divisions. The federal court's Charleston division includes Boone, Fayette, Kanawha, Logan, Mingo, Clay, Jackson, Lincoln, Nicholas, Roane, Wirt and Wood counties. The Huntington division includes Cabell, Mason, Putnam and Wayne counties.
As part of their renewed motion, Blankenship's lawyers filed a statement from former Washington Post reporter Scott Armstrong in which Armstrong opines that “patterns of pervasive news media coverage” in Southern West Virginia have wrongly linked the charges against Blankenship to the cause of the mine disaster.
“News coverage taken cumulatively has reported that Blankenship has been indicted for the very actions and failures to act that four investigations found responsible for the UBB mine disaster and for the deaths of 29 men,” Armstrong said. “The news media in the Southern District of West Virginia have documented a united community sentiment that those responsible for the UBB mine disaster must be indicted, prosecuted, and convicted, and that Blankenship was responsible.”
Blankenship's lawyers also noted that Berger had warned that media coverage could prejudice the jury selection process when she issued a broad “gag order” that sealed court records in the case from the public and the media and prohibited parties, potential witnesses, and victims from talking with the press. That gag order was subsequently thrown out by the 4th U.S. Circuit Court of Appeals as a result of a challenge brought by news media organizations, including the Charleston Gazette (now the Gazette-Mail).
“Since the gag order was lifted, television, print, and social media have continuously broadcast vivid, emotional accounts from the family members of those who died in the UBB explosion as well as others who worked in the mine,” Blankenship's lawyers wrote. “Commenters on social media have posted malicious, threatening, and even violent comments to each published article and TV segment, which remain linked together for the entire community to see.”
The renewed motion to move the change to another community comes about two weeks after Blankenship's lawyers filed a motion seeking their fourth delay in the trial. Berger denied that motion Thursday, saying Blankenship failed to “set forth good cause” to have the trial postponed, according to court documents.
Reach Ken Ward Jr. at email@example.com, 304-348-1702 or follow @kenwardjr on Twitter.