Judge refuses to drop gag order in Blankenship case

In this photo from May 20, 2010, Don Blankenship arrives to testify at the U.S. Senate Health and Human Services subcommittee hearing on mine safety. A federal judge on Wednesday refused to lift a gag order in the federal case against Blankenship.

A federal judge on Wednesday declined to lift a gag order that restricts access to most court records in former Massey Energy Co. CEO Don Blankenship’s criminal case.

U.S. District Judge Irene Berger did agree to again make the indictment charging Blankenship public through the court’s computer system and to allow public access to orders in the case, but Berger also ordered that other documents “that contain information or argument as to the facts and substance of the case” continue to be sealed.

In an 18-page opinion, Berger said her action limiting access to information about the case is necessary to ensure that Blankenship can get a fair trial.

“It is deep-rooted that a defendant’s right to a fair trial is a compelling interest,” the judge wrote. “Indeed it is the very bedrock of our criminal law jurisprudence.”

Berger concluded that there is “a substantial probability” that her order “will help insure the court’s ability to seat an impartial jury.”

The judge ruled on a motion brought by Charleston lawyer Sean McGinley — on behalf of The Charleston Gazette, National Public Radio, the Friends of West Virginia Public Broadcasting, The Associated Press and The Wall Street Journal — asking Berger to reconsider the broad gag order she issued the day after Blankenship was indicted in November.

Blankenship faces a four-count indictment that alleges he conspired to violate mine safety rules, hamper federal safety enforcement and lied 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 gag order restricts access to legal filings and prohibits prosecutors and defense attorneys from talking to the news media about the case. Actual filings by the parties and orders by the court have not been made 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 — have been publicly accessible.

During a hearing in Beckley last month, McGinley argued that Berger’s Nov. 14 order interferes with the First Amendment rights of journalists to gather news and limits the public’s right to information about the case.

In the opinion made public Wednesday, Berger said that while “adverse publicity may not inevitably lead to prejudice in every situation, the type of publicity limited by this court’s order would inevitably lead to prejudice in this case.

“The Court has the discretion and, more importantly, the duty to take specific, reasonable steps to guard against prejudice at the outset where it has knowledge, given prior publicity, that continued publicity, regarding the facts underlying the indictment, is likely to taint prospective jurors,” the judge wrote.

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