Ex-Massey CEO's lawyers say gag order in criminal case would be unnecessary if trial is moved

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CHARLESTON, West Virginia — A gag order issued in former Massey Energy CEO Don Blankenship's criminal case would be unnecessary if the courts grant a defense request to move his trial to another district, defense lawyers say in a court filing.

Blankenship's lawyers said he cannot get a fair trial because polling shows about half of the community in the U.S. District Court's Beckley Division believe the former coal company executive is guilty.

Blankenship is charged with conspiring to violate safety and health standards at the Upper Big Branch Mine in southern West Virginia. The mine exploded in 2010, killing 29 men.

"The community was devastated by those deaths and is passionate that, because of them, Mr. Blankenship must be convicted of some crime. But the indictment contains no allegation that any charged conduct caused the UBB disaster or any of the fatalities associated with it," Blankenship's lawyers wrote in a legal brief filed Tuesday in the 4th Circuit Court of Appeals in Richmond, Virginia.

Defense lawyers said the appeals court should allow U.S. District Judge Irene Berger to rule on Blankenship's motion to move the trial before it acts on an appeal challenging the gag order. The appeal was filed by The Associated Press, The Charleston Gazette, The Wall Street Journal, National Public Radio and the Friends of West Virginia Public Broadcasting.

"Because motions in this case address important issues concerning prosecutorial misconduct, judicial disqualification and prosecuting serious crimes without a sufficient basis in the charging document, informing the public regarding this case — including providing clarity about what this case is and is not — serves both First Amendment and Sixth Amendment interests," Blankenship's lawyers wrote in their brief.

"Transfer for trial in another district, a question that the district court will decide soon enough, may eliminate all existing constitutional concerns."

Berger had issued the gag order after Blankenship was indicted in November 2014. It prohibits attorneys or relatives of victims from discussing the case with reporters or releasing court documents. It also limits which documents filed in the case will be made public, including Blankenship's motion to move the case. Details of that motion remain sealed.

Federal prosecutors have no position on the gag order but are confident that an impartial jury can be seated in southern West Virginia, U.S. Attorney Booth Goodwin said in a brief responding to the news organizations' appeal.

Blankenship's trial is scheduled for April 20.

The Charleston Gazette first reported the filing by Blankenship's lawyers in the appeals court.

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