A few weeks ago, I wrote about the overly broad gag order imposed by a district court judge in West Virginia in the criminal case against former Massey CEO Don Blankenship.
After furious motion practice, including efforts by various media organizations to contest the order, Judge Irene Berger kept it in place. She limited its scope (somewhat) but maintains nearly complete control over whether key documents will be available to the public. She is effectively keeping this important case under wraps without good reason.
This is the wrong decision.
The main opposition to the gag order came from a group of news outlets, including The Wall Street Journal, NPR, the Charleston Gazette and the Associated Press. (I’ll call them the Media Group.) They moved to intervene to oppose the order, and the court heard argument in mid-December.
On January 7, 2015, Judge Berger issued her opinion. While she acknowledged that the members of the Media Group had standing, she disagreed with them on most of the other points they made in their arguments.
Voir Dire and Venue Alternatives
In her opinion, Judge Berger sets up a conflict between Mr. Blankenship’s Sixth Amendment right to an impartial jury and the media’s and the public’s First Amendment right of access.
The Media Group had offered two alternative methods to keep information about the case from tainting Mr. Blankenship’s jury pool: the court could (1) engage in rigorous voir dire examinations to ensure that compromised jurors are excused, or (2) order a change in venue.
Judge Berger was unconvinced that either solution would help.
The judge explained that although voir dire could help keep tainted jurors from being chosen and impaneled, this procedure would somehow not mitigate the threat to Mr. Blankenship’s Sixth Amendment rights. She seems to have the view that the entire jury pool would be tainted and therefore unusable.
She also shoots down the venue-change alternative. The proposed venue alternative would similarly “take place after pretrial publicity has tainted the jury pool such that a jury cannot be seated within the district[.]”
As she put it,
In the Southern District of West Virginia, we live in coal country. Many of our families depend on coal mining for their livelihood. Many families and communities within the Southern District of this state were impacted by the deaths of the miners in the Upper Big Branch mine explosion referenced in the indictment. Interest in this case is, understandably, heightened by that loss of life. In short, the environment matters.
Distinguishing the Massey Case from Nebraska Press Association Precedent
The opinion also distinguishes a similar gag order struck down by the Supreme Court in its 1979 decision, Nebraska Press Association v. Stuart. 427 U.S. 539 (1976).
The gag order here states:
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 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.
Unlike the gag order in Nebraska Press Association, Judge Berger explains, the present gag order does not prohibit the media from publishing information. Instead, it simply proscribes certain people from passing along litigation-related information. Judge Berger states,
[t]he order does not prevent the parties from talking to the press. It only limits this subject matter.
This is a hollow concession to the Media Group. As the Media Group correctly explained, this gag order will not stop news stories on the trial. All it will do is make sure that news about the Blankenship trial comes to the public through second-hand–and possibly less accurate–sources.
At worst, the gag order will encourage shoddy reporting since the media does not have complete access to the record to double-check a source’s information. If one reporter gains inaccurate second-hand knowledge, it is impossible for others to check that information against what really happened.
The Docket Sheet Question
Judge Berger makes clear that the docket sheet is not to be sealed. We will be able to see the docket entries on PACER.
But the documents underlying the entries on the docket sheet are not presumptively public. The opinion contends that
While the press and public may not see the actual documents and attachments [on the public docket], in many instances, they are able to see the docket entry and can determine the nature of the record and follow the progression of the criminal case.
This is simply not true. An ECF docket entry may simply say “Motion to Dismiss the Indictment” or “Motion to Compel Discovery.” To expect anyone to understand what is happening or to “follow the progression” of the case through ECF notices defies reality.
(Of course, it may lead the parties to file motions with incredibly detailed names so as to make plain the purpose and grounds of a motion.)
Gag Order Revised
Judge Berger did order some documents to be made public. But, critical here, she ordered that
any documents that do not contain information or argument related to the facts and substance of the underlying case do not fall within the purview of the November 14th order, and should be publicly accessible.
I’m not sure I’ve ever written a motion that doesn’t implicate the “facts and substance of the underlying case,” except perhaps a motion for an extension of time.
This so called “revised” order effectively keeps sealed any document of interest to anyone, including the media.
We’ll be able to see the court’s orders and opinions. If this is like any typical criminal case, then, the public will hear about denial after denial of the defendant’s motions. There will not be any way to question Judge Berger’s opinions without considerable outside legal research, since we cannot read the briefs upon which she relied.
Sure, that’s fair and even-handed.
Mr. Blankenship, for his part, straddles the line. He believes the jury pool is already tainted–in part by the government’s efforts to disseminate the indictment–and made clear in a filing that he will seek a transfer of the case to another judicial district:
Notwithstanding the order, obtaining jurors untainted by the emotion generated by this case is now impossible. There has been relentless, unfair, prejudicial publicity about Mr. Blankenship for many years in this district. It goes well beyond the explosion of the Upper Big Branch mine, but that tragedy and the hostility and hatred it caused to be directed at Mr. Blankenship cannot be minimized
The United States Attorney widely disseminated the indictment and accompanying press release to the media by electronic means prior to entry of the Court’s November 14th order. West Virginia’s two United States Senators made inflammatory, negative comments about Mr. Blankenship immediately after the filing of the indictment.
Mr. Blankenship intends to seek a transfer of this case to a different judicial district for trial.
The Gag Order May Still Taint the Jury Pool – Even Unknowingly
Judge Berger’s gag order does much more than simply stop the involved parties from passing along information. It leaves to the court’s discretion what to block on PACER and what to allow.
What if she is not fair in what she allows to be made public? What if documents that favor the government are allowed to be made public (and thus the subject of media attention) and documents that favor Mr. Blankenship remain sealed?
The denial of an order to unseal a document can’t be immediately appealed, so the defense will have no recource (short of seeking recusal) if it perceives a detrimental pattern that favors the government.
So, it is entirely possible that the exercise of the court’s discretion will itself taint the jury pool, perhaps unconsciously.
Hurting the Community That She Wants To Protect
Consider all of the high-profile criminal trials that have occurred over the last few years: Enron, John Edwards, Roger Clemens, former Governor Bob McDonnell, Allen Stanford, Barry Bonds.
Feel free to correct me if I’m wrong, but none of those cases had any broad gag orders in place. And they all managed to hold what was considered to be a fair trial. The judges there were able to conduct voir dire to ensure a fair(ish) jury.
Why should this case be any different?
Judge Berger acknowledged that this community has a “heightened” interest in the case. Only a small minority of those community members will be called for jury duty, yet she has punished the entire community by denying them media complete coverage of a case in which they have a great interest.