Coal Tattoo

Court files change of venue denial

This post is from Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

This morning the court filed three documents – two pertaining to voir dire and one memorandum opinion on the defense’s Sept. 24 motion to transfer the trial to another district.

The voir dire summary from today notes the following: 160 jurors reported, 76 jurors were excused for cause, 20 jurors were struck by counsel, 49 jurors were unused and 15 jurors were selected.

Once the jurors filed into the courtroom we could see the jury consisted of 11 women and 4 men.

Turning to Berger’s response to the defense’s motion to move the trial, the judge ultimately concluded the motion should be denied.

In her response, Berger noted that although the government had not filed a response to the defense’s motion and that the government’s previous filing on the subject (dated Feb. 27, 2015) remained relevant.

Berger wrote:

“The United States argued that the level of pretrial prejudice to the Defendant in this district was insufficient under Supreme Court precedent to mandate transfer of this case to voir dire. It instead urged the Court to follow the “near-universal” rule that  a change of venue is only required if voir dire proves “that an impartial jury cannot be empaneled.”

Berger then notes after a review of the parties’ pleadings – which include exhibits and reports – that the “Defendant’s arguments surrounding presumed prejudice to be unavailing.”

She continued:

“While the Defendant has pointed to the large volume of media coverage across many outlets, this is not enough.”

She cites a court case in which it was determined that the volume of publicity alone does not preclude a defendant from a fair trial, then adds:

“Further, the Court finds that the articles referenced were not highly inflammatory nor factually inaccurate.”

Discussing the media coverage of Blankenship and the Upper Big Branch mine disaster, she cites the defense’s concerns that comments associated with news articles found on the Internet reveal that some people seemingly believe Blankenship is on trial for the explosion and the resulting 29 deaths at the mine (which is NOT what he is on trial for).

She says:

The articles themselves do not state that the Defendant is on trial for murder or that he caused the explosion, but instead, social media comments by readers of the article suggest that is the case.”

Berger also notes that although the Blankenship case has been high profile, it has not received more publicity or inflammatory comments than other major federal cases, such as last year’s water crisis.

Berger also brings up the “documentary” Blankenship made following the Upper Big Branch mine explosion, noting that the defense pointed to the documentary as motivation for the government for the charges against Blankenship.

“It is uncontested that this video, produced by the Defendant, “invited media attention,” and combined with the indictment, created a media spotlight, particularly in light of the Defendant’s declarations of innocence and perceived victimization. The Fourth Circuit has stated that “a defendant should not be allowed to manipulate the criminal justice system by generating publicity and then using that same publicity to support his claim that the media attention surrounding his case created a presumption of prejudice.”

Berger finally notes that moving the trial to a different venue might not make a difference given the fact that the Upper Big Branch mine explosion was covered by national media outlets including the Los Angeles Times, the Wall Street Journal and the New York Times.

“Although the Southern District of West Virginia is “coal country,” it is not the only coal-producing region in the United States, and certainly not the only region where the trial of a former CEO of a public company would attract media attention.”

Berger finally notes how she’s attempted to remain vigilant in ensuring the jurors selected do not have a bias. She cites the gag order she placed during the early months of the trial, which was ultimately overturned by the Fourth Circuit, before ultimately concluding:

The Defendant has failed to establish that prejudice should be presumed. Thus, voir dire should ensue.

To read Berger’s 6-page order denying a change of venue, click here.