Jurors in the Don Blankenship criminal case deliberated for another day Monday, after being instructed to be "vigilant" about contact with the public and to be "respectful" of each other as they continue their work.
The eight women and four men returned to the Robert C. Byrd United States Courthouse after taking five days off for the Thanksgiving holiday. They reported to the courthouse at about 9 a.m., took a break for lunch at noon, and then went home for the evening shortly before 5 p.m.
Before jurors began their deliberations on Monday, U.S. District Judge Irene Berger called them into the courtroom and gave them additional instructions.
The judge cautioned jurors that they needed to be "vigilant" about discussing the case outside of their private deliberations room. Berger told them that they must "walk away" if necessary to avoid members of the public who try to talk with them or talk about the case in their presence.
Berger also gave the jurors an additional instruction that they should "be respectful" of each other and "treat each other with courtesy."
"Every juror should be able to express an opinion if he or she wants to do so," Berger told the jurors.
The jurors have now deliberated for more than 38 hours over seven days since they were given the case late on the afternoon of Nov. 17. Jurors heard 24 days of evidence, including 27 witnesses and more than 500 exhibits, since Oct. 7, and attended court for four other days during jury selection that started Oct. 1.
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. While he is not charged with causing the April 2010 explosion that killed 29 miners at Massey's Upper Big Branch Mine, the case focuses on Upper Big Branch and the kinds of violations that investigators say led to the disaster.
Blankenship is 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 that company officials "strive" 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 after the explosion.
Berger gave the jury her additional instructions Monday morning, after holding a brief discussion with prosecutors and defense attorneys. The discussion was held in open court, but started at about 8:45, before the announced start of court at 9 a.m.
The additional instructions also followed a closed-door session the judge had with both sides on Nov. 24. Unlike a closed-door meeting on Nov. 20, when Berger later told the public the discussion was about potential contact by a member of the media with a juror, the judge did not publicly disclose the topic of the Nov. 24 meeting.
During the session in open court, with the jurors not in the room, Berger read the lawyers from both sides the instruction she planned to give to jurors and asked them if they had comments on it.
Defense attorney Blair Brown asked that the judge add language that would instruct jurors that none of them should "come to a decision simply because other jurors think it is right."
Berger declined to give that instruction. She said it was too close to giving a so-called "Allen Charge," an instruction that is used to encourage a deadlocked jury to continue deliberating toward a verdict. The judge has so far not given such an instruction, and has said the jury's deliberations have not been unreasonably long, given the length of the trial and complexity of the case.
Jurors have deliberated for 4 1/2 days since sending Berger a note that asked, "How long do we deliberate? We cannot agree." After that note, the judge had simply told jurors to continue their work.
During Monday's court session, Brown also said he had several other instructions he wanted to ask Berger to make, but wanted to make those requests at the bench. Berger allowed Brown to do so, and held a private discussion with lawyers for both sides. No details about Brown's requests were disclosed.
Then, Berger brought in the jury, delivered her instructions and then sent the jury back to its deliberations. After the jury left, Brown asked the judge when she would consider giving one of the two instructions he asked about during the bench conference. Berger said that if she was going to give Brown's instruction, she would do so before deliberations ended for the day. Jurors left for the day without the judge giving them any additional instructions.
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.