Gag Order Amended in Trial Over W.Va Mine Disaster


     (CN) – National Public Radio and four other news organizations convinced a federal judge to at least partially lift a gag order in the criminal trial of former coal magnate indicted for his role in a 2010 mining disaster.
     Former Massey Energy Co. CEO Donald 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.
     Two days after Blankenship’s indictment, U.S. District Judge Irene Berger issued a gag order blocking public access to all court documents in the case, and prohibiting public discussion of the trial by any of attorneys involved, actual and potential witnesses, relatives of the disaster victims, investigators and Blankenship.
     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.”
     Judge Berger held a hearing on the issue on Dec. 17, 2014, and received additional amicus briefs from the American Civil Liberties Union the following day.
     Last week, Berger found that the news organizations possess constitutional standing to challenge her order, but opined that “it is less clear … that the motion to intervene in the criminal law context is the appropriate vehicle for airing the Movants’ grievances,”
     “A review of pertinent case law indicates that news media outlets have used other vehicles to challenge court orders that purportedly limit access, including writs of prohibition or mandamus …” she wrote. “Furthermore, the Court is mindful that ‘Mandamus is the preferred method for review of orders restricting press activity related to criminal proceedings’ … However, intervention in criminal matters, has been permitted in other circuits.”
     Therefore, Berger continued, “the Court, having found standing and having found that the underlying substantive issues should be decided, exercises its discretion in favor of granting intervention for the limited purposed of entertaining the Movants’ substantive arguments.”
     She then went on to weigh the news organization’s arguments for lifting the gag order and concluded “that public (and press) access to certain types of documents will serve to keep the public well-informed without unduly impacting the Defendant’s right to a fair trial. Accordingly, the Court will issue an amended order and a separate order specifying certain documents that were restricted by the initial order, that are to be publicly accessible under the terms of the amended order.
     “Documents that have already been publicly released, of course, may remain public on the docket without increasing the risk of prejudice,” Judge Berger continued. “In addition, any documents that do not contain information or argument related to the facts and substance of the underlying case do not fall within the purview of the November 14th order, and should be publicly accessible.
     “Similarly, absent specific instruction to the contrary, all orders and opinions of the Court should be accessible under the terms of the order,” she wrote.
     But Berger drew a line at documents that “contain information or argument as to the facts and substance of the case.”
     “Permitting the disclosure of such documents, like parties’ statements, presents the substantial probability of tainting prospective jurors, by trial in the media, thereby prejudicing Defendant’s right to a fair and impartial trial in a court of law.”

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