We reported in in yesterday’s Gazette about U.S. Magistrate Judge R. Clarke VanDervort refusing a request from longtime Massey Energy CEO Don Blankenship to delay his arraignment on the criminal indictment filed against Blankenship last week. But we weren’t able to explain why the judge did so. If you go to the U.S. District Court for the Southern District of West Virginia‘s PACER computer page, and try to download the judge’s order, this is what you see:
It’s a bit ironic that PACER stands for “Public Access to Court Electronic Records,” given that records of the U.S. vs. Blankenship are anything but public. Even the indictment — which was initially posted publicly and distributed via email by U.S. Attorney Booth Goodwin’s office, has been removed from public view. Goodwin’s office, apparently worried about violating the judge’s gag order, removed both its press release — a document that merely quoted the indictment and didn’t include any direct quotes from Goodwin — and the indictment from its website. We’ve posted the press release here and the indictment here.
In fact, even U.S. District Judge Irene Berger’s gag order isn’t available to the public through PACER. The clerk’s office in Beckley did finally email copies of it to local media outlets, and we’ve posted it here. These two sentences — which contain no citations to case law allowing such a gag order — are the only explanation we have of the judge’s action:
The Court observes that the Defendant and the matters which are referenced in the indictment have been the subject of publicity. 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.
It’s worth noting that neither the government nor Blankenship’s defense team asked for this gag order. The judge did it on her own. And now, she’s taking some criticism for it.
In an editorial that generally praised the government for pursuing this prosecution, the Lexington Herald-Leader said:
The judge’s stated concern is that potential jurors will be biased by pre-trial publicity. But seating an impartial jury can be accomplished without trampling the First Amendment rights of individuals to speak and the media to report the news.
Transparency is especially critical to public trust in the prosecution of Blankenship because of his history of influencing the courts.
Blankenship in 2004 spent $2.5 million on electing a judge to the West Virginia Supreme Court who then cast deciding votes in Blankenship’s favor in a potentially expensive lawsuit, a ruling the U.S. Supreme Court eventually overturned.
Berger should revoke the gag order.
And over at West Virginia MetroNews, Hoppy Kercheval wrote a commentary headlined, “Judge Berger’s gag order in Blankenship case goes too far,” in which he wrote:
Berger is in a tough spot. She’s presiding over a high profile case. Blankenship faces four charges connected with the operation of the Upper Big Branch mine in Raleigh County where 29 miners died in a 2010 explosion.
The disaster, and Blankenship himself, have been the subject of intense public interest, and thus extensive press coverage. If the case comes to trial it will draw national attention. Still, West Virginia Press Association executive director Don Smith believes the judge overreached.
“We certainly understand Judge Berger’s position and her concerns about seating a jury, but locking down all the information, all the court records… that goes too far,” Smith told me on “Talkline” Tuesday.
More practically speaking, the gag order in the Blankenship case won’t stop pre-trial coverage, but it may distort it, says the First Amendment Center’s Gene Policinski. “It’s going to take the most informed people out of the discussion,” Policinski told me. “You’re condemning the public to less informed, but not less voluminous coverage.”
Trials, and proceedings leading up to them, are public, with some limited exceptions. That’s guaranteed in the Sixth Amendment, and for good reason. The bright light of openness helps preserve and protect public confidence in the judicial system.
Irene Berger is an experienced and respected adjudicator on the federal bench. Her desire to conduct a fair and impartial proceeding in this case is unquestioned. However the judge should have the same level of respect for the press and the public’s ability—and their right—to follow the Blankenship case unfettered.