By Brandi Underwood
West Virginia Press Association
BECKLEY, W.Va. — Lawyers from both sides met for a hearing Wednesday before U.S. District Judge Irene Berger regarding the recent challenge of a court-imposed gag order in the case of ex-Massey Energy CEO Don Blankenship.
The gag order, implemented by Berger on Nov. 21, restricts access to court documents and also prohibits legal counsel or involved parties on either side from talking to the media.
Five media outlets — including The Charleston Gazette, Associated Press, Wall Street Journal, National Public Radio and the Friends of West Virginia Public Broadcasting — hired Charleston-area attorney Sean McGinley to fight the gag order on their behalf.
McGinley filed a motion on Dec. 1 to intervene in the Blankenship case for the limited purpose of moving the court to reconsider and vacate the Nov. 14 gag and sealing order.
McGinley told the court Wednesday that he understands the court’s intention to prevent “demonstrative harm” by ordering a gag and sealing order, but said the court had not provided justification in how the gag order would serve effectively in preventing that “demonstrative harm.”
“The information is already out there and already exists,” McGinley said of the media’s prior coverage of Don Blankenship’s alleged offenses.
The gag order “wouldn’t be effective to change things that have already happened,” McGinley continued, adding that the press’ First Amendment right and the associated public interest should be considered.
McGinley referenced several similar court cases and provided suggested alternatives to the gag order, including a more careful juror selection process, use of a larger jury panel or a change of venue.
However, after probed by Berger, McGinley later clarified that he “was not suggesting there was any basis for a change of venue in this case.”
Berger said that she would consider the media motion challenging the gag order and enter a written order with her decision in a timely manner. No further information on that date was provided.
Blair Brown, one of Blankenship’s defense attorneys, indicated that the defense would in fact be filing a motion for a change of venue.
“We will file a motion to change the venue,” said Brown, citing “public emotion” and a prejudiced jury pool as the reasoning behind the request.
“We believe it is impossible because of the emotion, because of the publicity, because of the history here,” Brown said of Blankenship’s right to a fair trial.
William Taylor, Blankenship’s lead attorney, told Berger she could anticipate receiving several motions to dismiss the indictment and a motion for a change of venue away from its current location in Beckley.
He requested an extension to the Dec. 30 deadline to file pre-trial motions, citing that there was a mass of information to review, including millions of pages of documents. He also requested that the trial, currently scheduled for Jan. 26, be pushed back to Feb. 20.
“We need time,” said Taylor. “We have a large number of attacks on the sufficiency of this indictment.”
Berger said that she received the motions and will enter a written order containing the extended motions deadline in the near future.
“I believe any delay in the deadline for filing motions will obviously necessitate a delay in the trial date,” Berger said.