4th Cir. Overturns Gag Order in West Virginia


     (CN) – The 4th Circuit vacated a sweeping gag order in the criminal case of former Massey Energy CEO Don Blankenship over a 2010 coal mining disaster that left 29 men dead.
     More than 29 news organizations, including Courthouse News Service, had sought the relief after U.S. District Judge Irene Berger sealed nearly all documents in the case and issued an unusually broad gag order muzzling attorneys, actual and potential witnesses, relatives of the disaster victims, and investigators of the explosion that occurred at the Upper Big Branch mine.
     In a unanimous decision, a three-judge panel of the 4th Circuit on Thursday, concluded that while Berger’s intensions may have been sincere, her actions could not stand.
     “Although we commend the district court’s sincere and forthright proactive effort to ensure to the maximum extent possible that Blankenship’s right to a fair trial before an impartial jury will be protected, we are constrained to conclude that the order entered here cannot be sustained,” the unsigned opinion states.
     “The public enjoys a qualified right of access to criminal trials … pretrial proceedings … and ‘documents submitted in the course of a trial,’ including documents filed in connection with a motion to dismiss an indictment and other pretrial filings. … Where the right of an accused to a fair trial is at stake, the public will not be denied access absent ‘specific findings … demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.'”
     Blankenship was indicted in November 2014, on charges he knew the mining giant was committing “hundreds of safety-law violations every year” at the mine, had the ability to prevent most of them, and yet he “fostered and participated in an understanding that perpetuated UBB’s practice of routine safety violations, in order to produce more coal, avoid the costs of following safety laws, and make more money.”
     The Upper Big Branch mine was the site of a massive explosion on April 5, 2010, that killed men working at a depth of about 1,200 feet. Investigators from the federal Mine Safety and Health Administration concluded in 2011 that the explosion was caused by safety violations that allowed coal dust and methane to ignite.
     The disaster was the deadliest mine mishap in the United States since 1970.
     Judge Berger issued her gag order two days after Blankenship’s indictment.
     NPR, the Associated Press, The Wall Street Journal, Charleston Gazette, and West Virginia Public Broadcasting immediately objected to the order, and filed a motion to intervene in Beckley, W. Va.
     In their motion, the news organizations argued Berger’s order erected “a barrier to the public’s full understanding of these newsworthy proceedings.”
     Bloomberg, The National Press Club, The Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors and the First Amendment Coalition were among the nearly two dozen organizations that joined Courthouse News in becoming amici supporting petitioners.
     The 4th Circuit ruling ended the and gag order and required Judge Berger to open hundreds of pages of documents and pleadings that have been filed in the Blankenship case to date, including his motions to dismiss the charges and to disqualify Berger — and any other federal judges in West Virginia — from hearing the case.
     The unsealed motions reveal that Blankenship has been arguing vociferously that he is being singled out by the federal government, of which he has been a persistent critic, and because of “the West Virginia Democratic establishment’s long­standing hatred” for him.
     “Mr. Blankenship is a well-known and controversial public figure in West Virginia. Unlike most other defendants, he looms large in the region’s politics, industry, and culture. He is an outspoken opponent of the President of the United States, the Democratic Party, Democrats in statewide office, the United Mine Workers of America and the Mine Safety and Health Administration. Democrats in this state use his image on their political advertisements. A sitting United States Senator, as well as others, publicly called for his indictment, saying that he had “blood on his hands,” says a document filed in early February.
     “The undisguised motivation of important figures in the state to ‘get’ Don Blankenship makes the prosecutorial misconduct even more serious, and makes it even more important to ensure that Mr. Blankenship’s motions, and the rest of the proceedings, are handled by a judge who is not only impartial but who appears to all reasonable observers to be so.”
     The documents also show Blankenship to be harshly critical of U.S. Attorney Booth Goodwin decision to handle the case personally.
     “This is not one of the hundreds of cases for which the U.S. Attorney is responsible, but which are handled exclusively by his assistants. Mr. Goodwin was personally present in the grand-jury room when the misconduct occurred and he personally appears in court in this case. He has participated in phone conferences with the magistrate and the Court. The defense expects he intends to appear at trial.”
     Blankenship maintains that Goodwin “has repeatedly given public statements to the press concerning his office’s investigation of the Upper Big Branch explosion, and, of course, he released this indictment with a public statement before this Court’s order prohibited further dissemination.”
     But the court documents reveal it’s not Goodwin’s past statements that bother Blankenship, it’s that he’s the son of U.S. District Judge Joseph R. Goodwin, a connection the former mining execution argues will taint the proceedings, but effectively makes it impossible for him to get a trial in any federal courtroom in the state.
     “Disqualification would be required even if Mr. Goodwin’s involvement were not so direct because he is responsible for the conduct of those in his office and, in this case, he has a personal and professional stake in the issues it presents. It is not permissible this Court or any other of his father’s colleagues to preside over it,” Blankenship says at one point.
     In subsequent motions Blankenship asks that his trial be transferred; in another he asks to have a judge appointed from outside this district to preside over the case “initially in this district, subject to her or his consideration of the transfer motion and other motions to dismiss.”
     The documents also suggest that Blankenship sees these options as his best and perhaps only chance of getting the case dismissed. His lawyers argue federal judges in Southern West Virginia won’t dismiss the criminal charges against him because the accompanying embarrassment to Booth Goodwin would disappoint his father.
     Blankenship’s lead attorney, William Taylor, could not be immediately reached for comment after the appellate court decision.
     His trial is currently scheduled to begin on April 20 at the Beckley, W.Va. Federal Court.

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