Blankenship hearing

Rick Barbero/The Register-Herald

A Federal Protection vehicle was parked in front of the Beckley Federal Courthouse just before the Don Blankenship hearing Wednesday.

Former Massey Energy CEO Don Blankenship's trial will be delayed, after U.S. District Court Judge Irene C. Berger granted a defense motion Wednesday for an extension to file pre-trial motions.

According to Blankenship's defense counsel, those pre-trial motions will include multiple motions to dismiss the case, as well as motions to change the location of the trial.

The previous deadline to file motions was Dec. 30, but with the extension, Blankenship's Jan. 26 trial date will be postponed as well.

Berger did not rule Wednesday whether to lift the gag order currently in place, but she said she will file a response "quickly."

Blankenship, 64, was indicted Nov. 13 by a federal grand jury on four criminal charges relating to the 2010 Upper Big Branch Mine explosion, including conspiracy to violate mandatory federal mine safety and health standards, conspiracy to impede federal mine safety officials and making false statements to the U.S. Securities and Exchange Commission and securities fraud.

Blankenship entered a "not guilty" plea Nov. 20 and was released on $5 million cash bond.

• • •

Defense attorney Bill Taylor requested the deadline for pre-trial motions be pushed back to Feb. 20 to allow for time to file multiple motions to dismiss and motions for a change of venue.

As for the current Dec. 30 deadline, Taylor said, "We can't possibly be ready."

He said a polling expert has been obtained to determine if the publicity surrounding the case has affected the trial in a prejudicial way.

Taylor called it "a very unusual case" with "an unusual set of charges" against a man he said "never set foot" at the mine where the explosion occurred.

He said the defense plans to file "attacks on the indictment, which should succeed."

In order to adequately prepare for trial, Taylor said the defense team would need a year, citing almost 4 million pages worth of information filed over the past four and a half years.

"We've got a lot of work to do."

Assistant U.S. Attorney Steve Ruby said the U.S. would not object to a brief continuance, but said late February is too long.

Many key documents have already been identified to the defense, Ruby said, and collection of previously published newspaper articles and public polls should not take two months to complete.

Ruby noted Blankenship's access to unlimited resources, and the fact he hired one of the best law firms in the country, which specializes in reviewing documents.

Both the U.S. and the defense could enjoy additional time to prepare, Ruby said, but added that their comfort is not a reason to delay this trial.

Taylor countered that his team must defend Blankenship against the allegations that the company put production over safety, which Taylor said is "not true."

"We can't do this on this kind of timeline."

Berger granted the defense motion for an extension to file pre-trial motions, but did not establish a new deadline during the hearing; she said she will file a written order soon with a new date.

• • •

The gag order currently in place bars public and media access to court documents, and prohibits both parties in the case, their counsel, potential witnesses, alleged victims and family members from speaking with the media.

Berger's order, filed Nov. 14, said she reached the decision based on the case's prior publicity, because the court needs to ensure it can find fair and impartial jurors.

Sean P. McGinley, a Charleston attorney representing five media outlets challenging the gag order, argued the press should be given access to court records to better keep the public informed, and any restrictions on speech must be limited to what would affect potential jurors.

"Obviously the defendant's right to a fair trial is important," McGinley said, but he said having access to court records does not inevitably lead to an unfair trial.

McGinley said alternative measures to the gag order need to be considered, such as more intense jury selections, instructions to the jury, sequestration of the jury, a larger jury pool or even a change of venue.

Berger, however, said those options are not viable alternatives at this point, as sequestration must be used on a jury has been already selected and a change of venue would only be granted if an impartial panel of jurors could not be seated.

She further stated that changing the venue is not in the public's interest; she said there is "somewhat of a preference" for these trials to take place in the district where the defendant is indicted. That way, the public who has the most interest in the case would have the ability to attend the trial.

"It's something I've given consideration to."

McGinley said if there is a reason to change the venue, "it's because of the information that's already out there," not because of current court records.

Berger countered that Blankenship's indictment is more specifically related to charges against him, whereas other previous news articles may be more general.

Regardless, McGinley said having access and allowing reporting on court documents enhances the ability to have an unbiased jury.

Blair Brown, counsel for the defense, said as long as the case remains in the Southern District, the defense supports the gag order.

But Brown said finding an unbiased jury in the Southern District would be "impossible" due to the publicity and emotionality of the case.

Ruby said the U.S. shares the court's concern, but disagrees with the defendant's claims that an impartial jury would be unable to be selected.

"Regardless of how the court rules, the U.S. will not make statements to the press," Ruby added.

He said the U.S. was not taking a position on the remainder of the motion.

Berger said she will soon file a response to the request to lift the gag order.

— E-mail: wholdren@register-herald.com and follow on Twitter @WendyHoldren

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