The Impossible Standard to Change Venue–The Massey Mine Case Is Still in West Virginia

November 10, 2015

I’ve posted before about the upcoming criminal trial of Don Blankenship’s involvement in the Massey Mine disaster. The trial started on October 1 and is still going. It’s going to be a long one.

Back in February, Mr. Blankenship filed a motion to change the venue of his trial, which is set in the Southern District of West Virginia. The mine disaster happened in that district. Mr. Blankenship argued that there is a general public sentiment (unique to this district) that he is on trial for causing the mine explosion and the death of his employees.

To put it gently, Mr. Blankenship is not a popular fellow in the district.

In June 2015, the district court sided with the government and refused to move the trial to another district. It did rule that the trial would be in the Charleston Division of the Southern District of West Virginia, rather than the Beckley Division.

Undeterred, Mr. Blankenship obtained some new evidence about the potential jury pool in the Charleston Division, hired a new expert, and filed a second motion to change venue in September. Just before trial, and before the government even filed an opposition, the court denied the motion.

This case is a good example of how difficult it is to move a trial, even in a district where emotions run high about the alleged wrongdoing and even when your client is highly unpopular.

The Legal Standard for a Change of Venue

The standard for a change of venue is high. In describing the standard, the district court stated:

Under Rule 21, a defendant may move for transfer for prejudice. Here’s the rule:

(a) For Prejudice. Upon the defendant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.

This determination requires a two-step process (United States v. Bakker, 925 F.2d 728, 732 (4th Cir. 1991)).


a trial court must address whether the publicity is so inherently prejudicial that trial proceedings must be presumed to be tainted. . . . In that case, a motion for a change of venue should be granted before jury selection begins.

Second, the court should not presume prejudice from the amount of pre-trial publicity. Rather,

a trial court customarily should take the second step of conducting a voir dire of prospective jurors to determine if actual prejudice exists. . . .Only where voir dire reveals that an impartial jury cannot be impanelled would a change of venue be justified.

Basically, the court has to believe that it is impossible to impanel an impartial jury in the district. It’s not enough to show that jurors will be subject to considerable negative publicity surrounding the trial; the defense must show that jurors from that area cannot be impartial and objective.

Why It is Hard to Win a Change of Venue

One hurdle to winning a change of venue is that judges are supremely confident in their ability to weed out biased jurors during the voir dire process. The jury pool in a big case can be hundreds of jurors and a typical judge will have no doubt that she can find twelve unbiased ones.

A second challenge is the widespread nature of the media. Defendants will often present evidence of biased media coverage in the area and statements from the general public about the defendant. Experts can often be useful in this area as well.

Between cable and the internet, however, the government can always argue that moving a case will make no difference; anyone, anywhere can learn about the defendant.

So, not only do you have to convince the court that jurors will be impartial in your district, but you also have to show that the bias won’t be as extreme somewhere else. This, among other things, was a major challenge for the defense here.

Mr. Blankenship’s Motion (and the Expert Evidence)

In his September motion, Mr. Blankenship asked that the court move his case either to the Northern District of West Virginia or the Northern Division of the District of Maryland.

Mr. Blankenship’s motion first reiterated the contents of his initial February motion:

That initial motion argued that transfer was necessary because, among other things, saturation- level prejudicial publicity in this district has created a high degree of prejudgment about Mr. Mr. Blankenship’s culpability, an erroneous impression that he is on trial for causing the UBB explosion, and a powerful sense of community pressure for a guilty verdict.

In response to the earlier motion, the government relied heavily on Skilling (the Enron case). It argued that if a venue change was not warranted there, it certainly would not be here, given the extreme negativity of the news surrounding the Enron scandal.

So what did Mr. Blankenship’s lawyers do? They retained the same expert that was used in Skilling to say that the media coverage in this case is “more pervasive, negative, and personal” than Skilling.

They also brought in new evidence of public social media posts and local media coverage, including a half-hour special aired on the news titled, “Can West Virginia Give Don Mr. Blankenship a Fair Trial?”

Regarding the bias in the district, the defense expert said the following:

[T]he patterns of pervasive news media coverage about Mr. Blankenship and the charges against him in the Southern District of West Virginia viewed collectively, are likely to impair a jury’s ability to focus its deliberative process solely on the evidence presented in the courtroom. News coverage taken cumulatively has reported that Mr. Blankenship has been indicted for the very actions and failures to act that four investigations found responsible for the UBB mine disaster and for the deaths of 29 men. 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 Mr. Blankenship was responsible.

The expert also pointed out that while the case has certainly been covered in other areas, it has not been covered nearly to the same extent as in the Charleston/Huntington area. Just to give you an idea, the ratio of frequency of coverage between the Charleston and Huntington papers and The Washington Post (which is the nation’s most prolific paper) is 13:1.

The defense expert pointed out that this was “coal country” and you simply would not find such pervasive and extreme bias in the other two districts in West Virginia. Even though there is coverage about the case elsewhere, nowhere else links Mr. Blankenship to the killings in the same way or concludes that justice simply cannot be served without his conviction.

Sounds pretty convincing, right?

The Court Disagrees

The court examined all of the evidence of local media coverage that Mr. Blankenship presented. It found that while it was certainly voluminous, the coverage was not particularly inflammatory or inaccurate.

Some of the comments left by the public on some of the stories showed that some members of the public believe that he is on trial for the explosion and deaths. However, according to the court, “that conclusion does not flow logically from a basic reading of [the news].”

The court noted that coverage of this case has expanded nationwide, and because the nature of media, and particularly the internet, is “rapid and widespread,” it still would not be able to impanel a jury in another district that was not subject to the publicity surrounding the case.

(Does the judge seriously think that potential jurors in Baltimore, Maryland are following this issue?)

The court also looked at some other high-profile cases in the area, such as the recent water crisis in Charleston and the surrounding criminal prosecutions. If those cases did not warrant a change in venue, then neither did this one.

The court made a special point to note that Mr. Blankenship created some of the publicity surrounding the trial himself. It particularly did not like that he failed to mention this fact in his pleading. Apparently, Mr. Blankenship created a documentary that details his innocence. In its opinion, the court essentially said that he was not able to use self-created publicity as a reason why he should be allowed to change venue.

Too Tough of a Standard?

No one truly challenged that the coverage of Mr. Blankenship was negative. The question was whether it was negative enough to taint the entire jury pool.

Anyone who has watched jury selection in a criminal case knows that most jurors, when asked by a federal judge, will say that they can be unbiased. They say this even after they just explained exactly how they are biased in that case. Here’s a typical exchange:

Judge: So your brother and your father are both police officers?

Potential juror: Yes.

Judge: And you understand that the case here involves killing a police officer?

Potential juror: Yes.

Judge: But you can be a fair and impartial juror here, right?

Potential juror: Yes, I think so.

Defense counsel: Your honor, I move to excuse this juror for cause.

Prosecutor: Your honor, he said he can be an unbiased juror.

Judge: Right. Ok, he’s not excused for cause. You can use a peremptory if you want, counsel.

As long as the juror answers the question the “right way” (by agreeing he or she will be a fair juror), then the juror is not biased. This ignores the very real pressure no doubt felt by potential jurors to answer the question the “right way.”

The part of the decision that seems most wrong is the court’s note that the public comments to news articles that Mr. Blankenship is on trial for murder “do[] not flow logically from a basic reading of [the news].”

This is exactly the problem. The touchstone isn’t whether the media coverage is fair, the touchstone is whether the potential jurors have been prejudiced by it. If the potential jurors are reaching the wrong conclusion (and thus deciding that Mr. Blankenship is guilty of murder), then that is prejudice, even if they have completely misunderstood the article.

Good luck to the Blankenship trial team. If the trial comes out badly, I’m sure this issue will be in the appeal.

Published by Kropf Moseley

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