Coal Tattoo

Don Blankenship: Waiting for the trial

Mine Explosion

With just three weeks left before the Oct. 1 start of jury selection in the trial of former Massey Energy CEO Don Blankenship, the calls and emails from out-of-town journalists are on a little bit of an upswing.

National media outlets are looking for some tidbit of gossip or some shred of never-reported news that they can turn into an exclusive. All manner of freelancers and authors are hoping the local press has some inside information — Is the trial really going to go this time? When will they be done with this tiresome jury selection and get to the opening arguments? What’s the schedule for the best witnesses?

Personally, there’s part of me that would be more than happy if most of the media (and a lot other curious folks) stayed away. Of course, we want everyone to get their news from the Gazette-Mail. And it’s not that I don’t think the more-the-merrier isn’t really the case when it comes to stories about the coal industry’s real impact on West Virginia communities. But there’s a fine line where it can all become a bit of a circus. Let’s hope that isn’t what happens when Blankenship gets his day in court.

Still, there is an obvious role for the media to play. We’re supposed to inform the public about the workings of the courts and, in the process and through transparency, create more public confidence in our nation’s criminal justice system. We’re supposed to make sure that judges and prosecutors don’t abuse the rights of defendants. We’re supposed to make sure everyone in the system does their jobs.

Hopefully, the results of the media’s legal battle to overturn U.S. District Judge Irene Berger’s gag order in the Blankenship case has helped to serve those purposes. With almost all of the filings in the case now public record, we’ve been able to reveal to the public Blankenship’s argument that the case is all political, and provide readers with some preview and context for the sorts of evidence and legal arguments that will come up once the trial gets going (see here, here, here and here). And for you national media folks, yes, if you read the court filings on PACER (and we’ve been posting most of them online, linking to them in our stories, and providing anyone without a PACER account free access), there have been some fascinating new details that have come out about Blankenship and his way of running a coal company.

There has also been at least one odd recent development that no one in the case has been willing to explain.

Back on Aug. 3, a mysterious court filing appeared on PACER and then quickly disappeared. In it, Blankenship’s lawyers sought to block a subpoena for an unidentified witness to appear before a new federal grand jury. The case was called “In Re: Grand Jury Subpoenas.” As I mentioned, that filing quickly disappeared from PACER. Now, if you look up the case number — a separate number from Blankenship’s criminal case — you get a message from the computer system that identifies the case as “Sealed v. Sealed,” and adds, “This case is SEALED.”

And then there’s the matter of jury selection. Judge Berger did finally make public a copy of the questionnaire that the court sent out to 300 potential jurors.  But the responses have not been made public, and the judge promised potential jurors that they wouldn’t be given to anyone but the judge, the court clerk and the parties (certainly not to the press).

Then earlier this week, Blankenship’s defense team went ever further down this road. They asked Judge Berger to mandate that all individual “voir dire” — the questioning of potential jurors to see if they can give the case a fair hearing — be conducted behind closed doors. As we reported today:

They say lawyers in the case should be able to question potential jurors “in camera,” or in private, to ensure that Blankenship gets a fair trial.

“This case is not only highly publicized, there is extensive prejudgment and bias against Mr. Blankenship,” the defense lawyers said. “In a case like this one, individual, counsel-led, in camera voir dire, combined with additional preemptory strikes, are necessary to protect the defendant’s constitutional right to a fair trial by an impartial jury.”

So far, Judge Berger has not issued a court order that spells out why she believes the jury questionnaire answers should be kept secret.  And it’s important to note that — just as with court records like the ones Judge Berger didn’t want any of us to be able to see — there is a presumption that the jury selection process is open to the press and the public. As we also explained in today’s story:

Under a 1984 ruling by the U.S. Supreme Court, the guarantee of open public proceedings in criminal trials includes proceedings for the voir dire examination of potential jurors. The rights of the news media and the public for open jury selection are not absolute, the court said in that ruling.

Closed jury selection proceedings should be rare, the court said, and only for cause that is shown to outweigh the value of openness. Courts must make findings that explain why closure is essential to preserve those higher values, consider alternatives to closure, and narrowly tailor any closure to serve those higher interests.