Judge keeps most of gag order in former W.Va. coal exec case

AP News
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Posted: Jan 07, 2015 8:24 PM

CHARLESTON, W.Va. (AP) — A judge is upholding most of a gag order in a criminal case against ex-Massey Energy CEO Don Blankenship, who was in charge of the Upper Big Branch mine when it exploded and killed 29 men.

In an order Wednesday, U.S. District Judge Irene Berger wrote that she needs much of the gag order intact to maintain a fair trial with unbiased prospective jurors in southern West Virginia, a community where the impact of the mine disaster still reverberates.

"Many families and communities within the Southern District of this state were impacted by the deaths of the miners in the Upper Big Branch mine explosion referenced in the indictment," Berger wrote. "Interest in this case is, understandably, heightened by that loss of life. In short, the environment matters."

Berger said she will make more documents public, however, including her opinions and orders. Her decision upholding most of the gag order, for example, is now available for public view. The original indictment, which was released publicly before the gag order was issued, will also be available.

Documents with information or arguments related to case facts and substance will remain sealed, and the judge is still prohibiting attorneys or relatives of victims from discussing the case with reporters or releasing restricted court documents.

The Associated Press, The Charleston Gazette, The Wall Street Journal, National Public Radio and Friends of West Virginia Public Broadcasting challenged the order, asking that it be dropped or modified.

Discussing the gag order in a hearing last month, attorney Sean McGinley said on behalf of the groups that the case has already been widely publicized in the news media for years.

The groups have argued the prohibitions are overly broad and infringe on free-speech rights, including constitutional rights for journalists to do their jobs. They have said a jury could still be fair and impartial without the restrictions.

Additionally, several family members of the mine-disaster victims have talked to the news media, despite the gag order.

Berger wrote that news media publications "could prejudice the jury selection process and/or influence the outcome of a trial, absent the Court's restrictions on access to certain sources of information."

Berger wrote that even if family members of victims aren't direct witnesses, they could be witnesses at sentencing or potential beneficiaries of restitution.

Blankenship is charged with conspiring to violate safety and health standards at the Upper Big Branch Mine.

He also faces charges of lying to federal financial regulators about safety measures in the deadly blast. In November, Blankenship pleaded not guilty and was released on a $5 million bond. He could face up to 31 years in prison if convicted.

His lawyers have said they support the gag order if the case remains in southern West Virginia. Blankenship wants the case moved out of the region.