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Media outlets challenge Blankenship gag order

CHARLESTON, W.Va. — The Charleston Gazette and four other news organizations today urged a federal judge to withdraw a gag order that has blocked access to court records in a criminal case filed against longtime Massey Energy CEO Don Blankenship.logo-wvgazette-header

Joining in the legal action in federal court in Beckley were the Gazette, The Wall Street Journal, The Associated Press, National Public Radio and the Friends of Public Broadcasting.

The media coalition asked U.S. District Judge Irene 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.

Sean McGinley, a Charleston attorney representing the Gazette and the other media organizations, filed a motion to intervene in the Blankenship case for the limited purpose of seeking to have the gag order vacated or modified.

In the motion, McGinley argued that federal courts must give the media outlets an opportunity to be heard before they restrict access to court records or prohibit parties from discussing cases with reporters.

The gag order in the Blankenship case interferes with the news media’s ability to gather information needed to report on the case, violating the media’s constitutionally protected rights under the First Amendment, McGinley said in the motion.

“A reporter’s First Amendment right to publish is meaningless if it is prevented from gathering news in the first instance,” the motion said. “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,” the motion said.

Blankenship stands 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.

On Nov. 14, without any request from the prosecutors or Blankenship’s defense lawyers, Berger issued a two-page order that restricted access to court records and prohibited parties, potential witnesses and victims from discussing the case with the media.

“The court observes that the defendant and the matters which are referenced in the indictment have been the subject of publicity,” Berger said in her order. “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.”

Berger’s order eliminated public access to the 43-page indictment — which had been publicly available — through the court’s website, and prompted Goodwin’s office to remove from its website a press release that summarized the indictment.

Under Berger’s gag order, actual filings by the parties and orders by the court are not available to the public or the media. Only court computer system “docket entries” – short summaries of legal filings written by the court or the lawyers involved – are publicly accessible.

For example, a docket entry posted on Nov. 21 indicated that Goodwin’s office had appealed to Berger a decision by U.S. Magistrate Judge R. Clarke VanDervort to approve a request by Blankenship to “permit travel.”

Pending trial, now scheduled for Jan. 26, Blankenship is free after he posted $5 million cash bond to assure he appears for further court proceedings. VanDervort had ordered Blankenship not to leave to Southern District of West Virginia or part of Eastern Kentucky, except to meet with his legal team in Washington, D.C., or with prior permission from the court. Blankenship had asked that the general conditions of his release also permit him to return to his current residence in Nevada, but VanDervort denied that request during a bond hearing on Nov. 20.

Docket entries indicate that Blankenship responded to Goodwin’s appeal and Goodwin replied. A docket entry dated Nov. 25 indicates Berger denied Goodwin’s appeal. But because the actual court filings aren’t available publicly, it’s impossible to know exactly what sort of travel request Blankenship had made or to understand Goodwin’s opposition or the reasons for the rulings by VanDervort and Berger.

Lawyers in the case are unable to explain the situation. Berger’s prohibition on talking to the media applies to the parties and their lawyers, “potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the defendant” and to any court personnel.

Other documents that are not publicly available include an order from VanDervort refusing Blankenship’s request to postpone his arraignment and bond hearing, and the full text of VanDervort’s order setting the conditions of Blankenship’s pre-trial release. Under the order, any pretrial motions — now due to be filed by Dec. 30 — would not be available to the public or the press.

McGinley said in the media coalition motion that, under the Constitution and federal case law, courts have narrow authority to restrict access to court records or issue broad orders that limit what can be said to the media about a case.

Courts must give the public notice that they are considering closing court proceedings, give interested persons an opportunity to object, and make any limits on public access as narrow as possible, the motion said. Courts are required to consider alternatives – such as well-crafted jury selection procedures – that would protect a defendant’s right to a fair trial, while not inhibiting public and media access rights, McGinley wrote.

“The court’s gag and sealing order was entered quickly, within 24 hours of the issuance of the indictment,” the motion says. “The gag order applies like a blanket covering all statements and documents that may have anything to do with the facts or substance of the case, and is not tailored in any way to apply only to statements or documents specifically identified as being sufficiently prejudicial to defendant’s right to a fair trial. Likewise, the sealing order applies like a blanket shielding all filings regardless of their content, and regardless of whether the public access to a particular document, pleading or order is sufficiently prejudicial to defendant’s right to a fair trial.”

Reach Ken Ward Jr. at [email protected], 304-348-1702 or follow @kenwardjr on Twitter.

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