It was an extraordinary moment last week in Charleston, W.Va., when a federal grand jury handed down a four-count criminal indictment against former coal company CEO Don Blankenship.
Extraordinary because it's often difficult for prosecutors to directly tie those at the top of the corporate ladder to misdeeds below.
And, as Kentuckians know too well, the coal industry in Appalachia is rarely held accountable for its wrongs. If you doubt that, check out NPR's recent reporting by Howard Berkes on the industry's massive backlog of unpaid fines for mine-safety violations.
Justice is being served in the preventable disaster that killed 29 coal miners at Massey Energy's Upper Big Branch mine in West Virginia in 2010, thanks to the determined efforts of U.S. Attorney Booth Goodwin and his assistant Steven Ruby.
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Blankenship was charged with conspiring to willfully violate explosion-prevention rules for proper ventilation and dust control, conspiring to conceal safety violations and thwart safety enforcement, and lying to the investing public and the Securities and Exchange Commission about the company's safety practices and record.
Unfortunately, U.S. District Judge Irene Berger threatens to mar this shining moment for the justice system with a sweeping gag order.
Berger, who has sentenced three former Massey managers and a lower-ranking employee to prison for their parts in violating mine safety standards, placed a gag not only on lawyers in the case but also on the families of the victims, none of whom is on trial. Her order forbids them from speaking or releasing documents to the media.
She even ordered that filings in the case be excluded from the computerized system that makes court documents available to the public and media, meaning the public would be unable to follow each side's arguments as the case develops. The Charleston Gazette reports that Berger's order says only "docket entries," brief descriptions of court filings, are to be publicly available.
The judge's stated concern is that potential jurors will be biased by pre-trial publicity. But seating an impartial jury can be accomplished without trampling the First Amendment rights of individuals to speak and the media to report the news.
Transparency is especially critical to public trust in the prosecution of Blankenship because of his history of influencing the courts.
Blankenship in 2004 spent $2.5 million on electing a judge to the West Virginia Supreme Court who then cast deciding votes in Blankenship's favor in a potentially expensive lawsuit, a ruling the U.S. Supreme Court eventually overturned.
Berger should revoke the gag order.
U.S. Sen. Jay Rockefeller, D-W.Va., was correct when he said that as Blankenship goes on trial he "will be treated far fairer and with more dignity than he ever treated the miners he employed."
The judge can protect Blankenship's right to a fair trial while also protecting the public's right to know what is happening at every step of the process.