Media Challenging Gag Order in Crim Trial of Energy CEO

     (CN) – Five news organizations are challenging a federal judge’s gag order in the criminal trial of former Massey Energy CEO Donald Blankenship, who was indicted last week for his role in the 2010 mining disaster that killed 29 men.
     The Associated Press, The Wall Street Journal, National Public Radio, Charleston Gazette, and West Virginia Public Broadcasting filed the motion this morning in the federal court in Beckley, W. Va., saying U.S. District Judge Irene Berger’s November 14, gag order has erected “A barrier to the public’s full understanding of these newsworthy proceedings.”
     Blankenship was indicted on November 13 on charges he knew Massey was committing “hundreds of safety-law violations every year” at the Upper Big Branch mine, had the ability to prevent 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 government’s complaint says.
     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.
     Blankenship retired eight months after the disaster. A grand jury indicted him on four counts, including conspiracy and securities fraud.
     Judge Berger’s gag order blocks public access to all court documents in the case — including her gag order — and prohibits public discussion of the trial by any of attorneys involved, actual and potential witnesses, relatives of the disaster victims, investigators and Blankenship.
     In a report in its own filing, National Public Radio said, “The gag order is prior restraint.”
     It also said “The complete sealing of motions and other documents filed by the U.S. Attorney and Blankenship’s defense, ‘has blanket impact, thereby depriving the press and public of access to all past and future court records in the case.'”
     The motion itself acknowledges Berger’s stated basis for issuing the gag and sealing order — that the case will likely generate considerably publicity — but argues the order “does not cite support for the conclusion that the potential jury pool would not be fair and impartial if the gag and sealing order was not entered, nor does the gag and sealing order address why it will not be possible for Defendant to obtain a fair and impartial jury if the case eventually goes to trial.”
     Further, the media organizations contend, “A gag order restricting extrajudicial comments may be entered only when necessary to ensure a fair trial, and must be tailored narrowly to preclude only extrajudicial comments that are substantially likely to materially prejudice the trial — the specific speech to be restrained must pose a certain, direct and imminent threat to a trial right or other constitutional interest.”
     Sean McGinley, of Di Trapano, Barret, DiPiero, McGinley & Simmons PLLC of Charleston, W. Va., is representing the media organizations.

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