Media outlets successful in lifting order issued in trial against former Massey Energy CEO following nation's worst mine disaster in 40 years...
By Brad Friedman on 3/5/2015, 10:23am PT  

A federal appeals court has lifted the gag order that had been imposed by a lower court in the criminal trial of West Virginia coal baron Don Blankenship.

The appellate court's unsigned order [PDF] on Thursday was issued in response to a suit filed by a number of media outlets, including AP, the Wall Street Journal and the Charleston Gazette, challenging the gag order by U.S. District Court Judge Irene C. Berger. That order, issued last November, had also sealed all documents in the indictment of the former Massey Energy CEO, who faces four criminal counts related to the massive April 2010 explosion at the company's Upper Big Branch (UBB) mine in West Virginia, resulting in the deaths of 29 miners.

Finding that the U.S. District Court had been "sincere and forthright" in its "proactive effort to ensure to the maximum extent possible that Blankenship’s right to a fair trial before an impartial jury will be protected", the 4th U.S. Circuit Court of Appeals nonetheless determined that "The public enjoys a qualified right of access to criminal trials"...

On November 13, 2014, just one day after the indictments against Blankenship had been handed down by a federal grand jury, Berger ordered "that neither the parties, their counsel, other representatives or members of their staff, potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the Defendant, nor any court personnel shall make any statements of any nature, in any form, or release any documents to the media or any other entity regarding the facts or substance of this case."

Berger's gag order had been issued sua sponte, meaning, on the judge's own accord, without a specific request by either the prosecution or defendant.

While the prosecution filed no motion in response to the media petitioners' challenge, Blankenship had objected to lifting the gag order in the case.

Last November, after Berger imposed the rule, ostensibly to secure a jury that could "be fair and impartial and whose verdict [will be] based only upon evidence presented during trial," as she declared at the time, The BRAD BLOG's legal analyst Ernie Canning observed that the man described by Rolling Stone in 2010 as "the Dark Lord of Coal Country" would likely benefit from the gag order.

For example, Big Coal allies, such as the powerful Rightwing lobbyists at the U.S. Chamber of Commerce, where Blankenship served as a Director, were not bound by the court's order and were still able to issue propaganda in support of the powerful mine boss.

Blankenship is accused of running the coal giant Massey with criminal disregard to the safety of its employees. Though the UBB explosion was somewhat over-shadowed in the media just days later by BP's Deepwater Horizon explosion and oil spill in the Gulf of Mexico, it was the nation's worst mining disaster in the past 40 years.

As Canning explained last November, citing the 43-page indictment [PDF]: "The indictment alleges that 'Blankenship...conspired to commit and cause routine violations of mandatory federal mine safety standards,' including 'ventilation' regulations designed to prevent explosions, in order to maximize profits; that he 'conspired to defraud the United States by impeding the federal Mine Safety and Health Administration (MSHA) in carrying out its duties at UBB,' and that Blankenship made 'materially false the United States Securities and Exchange Commission' essentially to protect the value of Massey stock."

"During the period from Jan. 1, 2008 to April 9, 2010," Canning reported, "UBB, which was the source of 14% of Massey's revenues, 'was cited 835 times for violations of mandatory federal mine safety and health standards.' These included 283 violations of ventilation laws that are designed to prevent the very type of explosion that occurred on April 5, 2010."

If convicted, Blankenship, once the most powerful man in the U.S. coal industry, and a name feared across much of Coal Country, faces the possibility of 31 years in federal prison.

With Thursday's order, the prosecution, and those allegedly victimized by Blankenship's unceasing quest for ever-larger profits, can now freely discuss the case and the evidence against him.

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