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Judge Maintains Gag Order In Coal Mine Disaster Trial

A federal judge in West Virginia has rejected the pleas of NPR and other news organizations and upheld a sweeping gag order in the criminal trial of former Massey Energy CEO Don Blankenship.

Blankenship faces charges of conspiracy and securities fraud, which stem from the federal criminal investigation of the 2010 Upper Big Branch mine disaster in Raleigh County, W.Va. The explosion killed 29 coal miners.

U.S. District Judge Irene Berger ruled that the gag order and restricted access to court documents must remain in place to "preserve the Defendant's right to a fair and just tribunal."

"While adverse pretrial publicity may not inevitably lead to prejudice in every situation," Berger wrote, "the type of publicity limited by this Court's order would inevitably lead to prejudice in this case."

The gag order includes federal prosecutors, defense attorneys, Blankenship, and any actual or potential witnesses, including survivors of the explosion, relatives of the dead and anyone else who might become a party to the case.

Most court documents in the case have also been unavailable to reporters and the public.

NPR, the Charleston Gazette, The Wall Street Journal, The Associated Press and Friends of West Virginia Public Broadcasting argued that the restrictions amount to prior restraint and are an unconstitutional infringement on press freedoms.

Blankenship supported the restrictions, and his attorneys, citing pretrial publicity, say they plan to file for a change of venue. The case is set to go to trial in Beckley, W.Va., on April 20.

In a recent court hearing, Berger said she wanted to keep the case in southern West Virginia. And in her ruling, she spoke about the atmosphere in the area as a factor in her gag order.

"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," Berger wrote. "Interest in this case is, understandably, heightened by that loss of life. In short, the environment matters."

Berger wrote that the gag order includes victims and family members even if they did not directly witness alleged crimes because "they may be witnesses at sentencing or potential beneficiaries of restitution" if Blankenship is found guilty.

The ruling modifies the gag order slightly. It says survivors and family members are free to talk to media as long as they don't comment on "the facts and substance of the underlying case." The same restriction applies to court documents, including orders and decisions, and Berger suggested some would be made available to media and the public.

Copyright 2021 NPR. To see more, visit

Howard Berkes is a correspondent for the NPR Investigations Unit.

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