Jurors in the Don Blankenship criminal trial were instructed this morning to continue their deliberations, after they asked how long they should go on and told the judge they have so far not been able to reach a verdict on the three felony charges pending against the former Massey Energy CEO.
U.S. District Judge Irene Berger ordered the eight women and four men to return to their work after they take 90 minutes off for lunch. She said it was too soon to consider a mistrial, or even an instruction aimed at urging jurors to carefully consider the views of fellow jurors and be willing to change their minds.
The judge's order came after jurors had deliberated for only about 10 hours in a case that included 24 days of testimony with 27 witnesses and more than 500 exhibits.
Berger turned down a request from lead defense lawyer Bill Taylor for a mistrial.
"Given the length of this trial and the number of witnesses you heard and the length of time you have deliberated, I am going to order you to continue your deliberations," Berger told jurors during a brief discussion in open court shortly before noon today.
Jurors are deliberating in a conference room off the side of the courtroom at the Robert C. Byrd United States Courthouse in downtown Charleston, in a landmark case filed against Blankenship after a lengthy investigation prompted by the April 2010 explosion that killed 29 miners at Massey's Upper Big Branch Mine.
At about 11:25 a.m., the jury knocked on the side door to the courtroom and handed one of the court security officers a note that said, according to Berger, "How long do we deliberate? We cannot agree."
Court staff then summoned prosecutors, defense lawyers and Blankenship to the courtroom. While jurors are deliberating, U.S. Attorney Booth Goodwin's team has returned to its offices one floor down in the courthouse. Blankenship and his team have left the building. News reporters and some families of miners killed at Upper Big Branch have been camped out in the courthouse lobby or in the courtroom, which was reopened to the public today after being closed on Wednesday.
Berger explained the note to both sides before bringing the jury into the courtroom.
"At this point, it would be premature to declare a mistrial or to treat this as a hung jury," Assistant U.S. Attorney Steve Ruby said. "Our view would be that the jury should be told to continue its deliberating."
Ruby also said it was too soon for the judge to issue an "Allen charge," an instruction - named for the case Allen v. United States - given to juries that say they appear deadlocked to encourage jurors to re-examine their own views and change their positions if fellow jurors convince them they are wrong. One model for such an instruction suggests that judges tell jurors, "All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position."
While the judge was discussing the first note with the attorneys, the jurors at 11:50 a.m. sent another note asking if they could go to lunch from noon until 1:20 p.m. The judge granted that request and told jurors to resume deliberations when they return from lunch.
After jurors left the room, Berger asked spectators in the courtroom - mostly members of the news media - to be especially cautious to avoid jurors if they see them downtown at lunch or other times, so that jurors don't overhear conversations and can decide the case only based on the evidence presented in court.
Pat McGinley, a West Virginia University law professor who helped investigate the Upper Big Branch Mine Disaster, said that it seems unlikely that jurors have had time to examine the voluminous evidence in the case.
"When a jury decides early in a case that it can't reach agreement, after a judge sends it back for further deliberations, consensus is often achieved," McGinley said today.
Blankenship, 65, faces three felony counts that carry a statutory maximum of 30 years in prison. He is charged with conspiring to violate federal mine safety and health standards and defraud the U.S. Mine Safety and Health Administration by obstructing MSHA inspections. He also is charged with making a false statement and with securities fraud in connection with a statement issued after the mine explosion that said Massey did not condone safety violations and tried to comply with all rules at all times. Prosecutors allege that Blankenship engineered the statement to try to stop the company's stock price from plummeting.
Check the Gazette-Mail's Coal Tattoo blog for frequent updates on testimony in the Blankenship case, and visit the Blankenship trial page for a timeline, exhibits and other features.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.