WEST VIRGINIA RECORD

BECKLEY – Five news organizations filed a motion urging U.S. District Judge Irene Berger to withdraw a gag order that has blocked access to court records in a criminal case filed against Massey Energy CEO Don Blankenship.

The Wall Street Journal, The Associated Press, The Charleston Gazette, National Public Radio Inc. and the Friends of West Virginia Public Broadcasting Inc. filed the motion on Dec. 1 in the U.S. District Court for the Southern District of West Virginia at Beckley.

"The court's gag and sealing 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," the motion states.

Intervention is proper because the news media interveners have standing and are entitled to notice and an opportunity to be heard before a court may enter an order restricting access to judicial records or prohibiting extrajudicial comments to the media, according to the motion.

"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 fair trial right or other constitutional interest," the motion states.

The media outlets have asked Berger to reconsider her order, which also prohibits parties in the case, potential trial witnesses, and potentially families of the victims of the Upper Big Branch Mine Disaster from talking to the media.

"A reporter’s First Amendment right to publish is meaningless if it is prevented from gathering news in the first instance," the motion states. "In this case, the court’s gag and sealing order prevents the news media intervenors and other members of the press and public from obtaining any meaningful information regarding this newsworthy case from court records and from those most knowledgeable about it, the participants and those affected by the underlying events."

The public interest in access is especially strong in the case at bar because such access promotes trustworthiness in the judicial process, better understanding of the judicial system, and ultimately, fairness, according to the motion.

Blankenship is accused of conspiring to violate mine safety rules and hamper federal safety enforcement and lying to stock market regulators and to investors.

On Nov. 13, a federal grand jury indicted Blankenship on three felony counts and one misdemeanor.

U.S. Attorney Booth Goodwin’s office began a more than four-year investigation following the April 5, 2010, explosion that killed 29 miners at Massey’s Upper Big Branch Mine in Raleigh County.

Berger issued the gag order on Nov. 14, claiming that after "careful consideration and in light of the prior publicity, the court finds it necessary to take precautions to insure that the government and the defendant can seat jurors who can be fair and impartial and whose verdict is based only upon evidence presented during trial."

Under Berger's order, actual filings by the parties and orders by the court are not available to the public or the media.

Blankenship's trial is scheduled for Jan. 26. He is currently free after posting a $5 million cash bond to assure he appears for further court proceedings.

Blankenship is not to leave the Southern District of West Virginia or part of Eastern Kentucky, except to meet with his legal team in Washington, D.C., unless he has prior permission from the court.

The media outlets are represented by Sean P. McGinley of DiTrapano, Barrett, DiPiero, McGinley & Simmons PLLC.

The United States is represented by Goodwin and Steven R. Ruby of the U.S. Attorney's Office

Blankenship is represented by Miles Clark, Steven N. Herman, William W. Taylor III and Eric R. Delinsky of Zuckerman Spaeder; and John H. Tinney Jr. of the Tinney Law Firm.

U.S. District Court for the Southern District of West Virginia at Beckley case number: 5:14-cv-00244