Former Massey Energy CEO Don Blankenship’s trial will go on as scheduled Oct. 1, after a federal judge denied an emergency defense motion to postpone the trial until January.
U.S. District Judge Irene C. Berger denied the motion Thursday, stating the defense “failed to set forth good cause” for a delay.
Defense attorneys have since renewed a motion requesting the trial be relocated to another district, such as Maryland or Martinsburg.
The defense argues the pretrial publicity has left an “erroneous impression” that Blankenship is on trial for causing the April 5, 2010, Upper Big Branch mine explosion that took the lives of 29 miners.
Although he is not charged with causing the explosion, he is charged with conspiracy to violate safety standards and lying to securities regulators and investor after the explosion.
“The environment has not changed since the filing of the motion to transfer on February 20, 2015,” the defense wrote.
Judge Berger did grant a change of venue request in June, relocating the trial from Beckley to Charleston. She also agreed to delay the trial from July to October.
Defense attorneys said surveys have indicated Beckley and Charleston Division respondents have nearly identical levels of knowledge, prejudgment and bias.
According to those survey results, 95 percent of Beckley Division respondents have knowledge of the UBB explosion and 57 percent of those already believe Blankenship is guilty of at least one of the charges against him.
In the Charleston Division, those numbers decreased to 93 percent and 51 percent, respectively.
“There is no reason to believe that prospective jurors from the Huntington Division will be any different.”
In the renewed motion, the defense submits an opinion from Scott Armstrong, a journalist with more than 40 years of experience who now serves as executive director of the Information Trust, an organization devoted to improving the quality of journalism.
In his declaration, Armstrong said the media coverage, viewed collectively, is likely to “impair a jury’s ability to focus its deliberative process solely on the evidence presented in the courtroom.”
Additionally, “The news media in the Southern District of West Virginia have documented a united community sentiment that those responsible for the UBB mine disaster must be indicted, prosecuted and convicted, and that Blankenship was responsible.”
According to his LinkedIn profile, Armstrong has been an expert witness in numerous libel cases and on the impact of news media coverage on venue decisions in five federal cases, including the Oklahoma bombing trial.
Defense attorneys also argue the lift of the gag order on the case has further prejudiced the jury pool by allowing the media to report so extensively, and that in each report, the media has linked the charges against Blankenship to the deaths of the UBB miners.
“Given that mention of the explosion and the deaths unfailingly follow nearly every description of the charges, it will be practically impossible for jurors in this district to dissociate the two concepts in their minds when they consider the evidence in this case, even though they have nothing to do with one another.”