The Don Blankenship trial in Charleston federal court is off to a disappointing start; not for Blankenship or the government, but for the people.
The public, which is kept informed on government proceedings by the media, has been largely, and unnecessarily, excluded from the jury selection process.
Under the current system, prospective jurors are summoned one by one to the bench where Judge Irene Berger turns off the courtroom microphone and questions that person individually, with attorneys for the defense and prosecution standing alongside.
Media and the public are isolated in a separate courtroom where they watch the proceedings on video screens. Since Judge Berger turns off the mic, no one in the media/public area can hear what’s being asked or said.
The Charleston Gazette-Mail was able to publish an informative story late Friday about the questions and answers, but only because of an apparent accident by the court.
“A copy of that transcript (of Thursday’s jury selection) was temporarily viewable on a public computer terminal in the clerk’s office at the courthouse,” the Gazette’s Ken Ward and Joel Ebert reported. “It was later replaced with a message that said, ‘This image is not available for viewing by non-court users.’”
The story provided important insights about this critical phase of the trial. For example, one juror was dismissed because he thought Blankenship could be a “scapegoat” for the Upper Big Branch Mine disaster. Another potential juror, who was not retained, said she felt Blankenship should be punished for the loss of life at UBB. “He should have been caring about those (miners),” the Gazette-Mail quoted her as saying.
The potential jurors were not identified by name, so their privacy was protected.
Attorney Harvey Peyton, who is serving as a legal consultant for Metronews during the trial, is among those critical of how the media and the public are being isolated away from what should be a public proceeding.
“The Sixth Amendment right to a public trial is fundamental to the accused, but also to the public,” said Peyton. “The ability of the public to access as much information as possible is essential to enhancing the fairness of the trial.”
Yes, there is legitimate concern about the privacy of the potential jurors, but Peyton believes that can be protected without simply shutting out the media and the public.
“Any juror who feels uncomfortable with a question always retains the right to ask the court to hear the matter in camera (in private) and the judge decides in each occurrence whether the request is valid,” Peyton said. “What we have now is prior restraint of public information based on the supposition that the unknown, and as yet unexamined, may have something that needs protection.”
Judge Berger started into this trial months ago with an excessive amount of secrecy, issuing a sweeping gag order prohibiting not only the lawyers involved, but also family members of the UBB victims from talking with the press. She also sealed all documents filed in the case.
However, a federal appeals court tossed out the judge’s order. The court said it appreciated Judge Berger’s “sincere and forthright proactive effort” to ensure a fair trial, but added, “The public enjoys a qualified right to access to criminal trials, pretrial proceedings, and all documents submitted in the course of a trial.”
The same principle should apply here. Blankenship’s right to a fair trial and the potential jurors’ right to privacy are paramount, but so are media and public access to the proceedings. Judge Berger needs to bring all those rights back into balance.