The jury in the Don Blankenship trial continued this morning to hear testimony from Frank Torchio, a financial expert hired by federal prosecutors, about Massey Energy stock price changes following the Upper Big Branch Mine Disaster and about the Massey statement to shareholders that is at issue in counts 2 and 3 of the indictment against Blankenship.
During cross-examination, Torchio and defense lawyer Eric Delinsky got into it a little bit — interrupting each other to the point that U.S. District Judge Irene Berger stepped in, something the judge has seldom had to do in the previous 21 days of testimony of the Blankenship trial.
In particular, Delinsky didn’t seem to like it much when Torchio refused to accept the premise of question from Delinsky about whether a report from a financial analyst at Jeffries had nothing to do with comments in Massey’s shareholder statement — key remarks concerning the indictment — that Massey doesn’t condone safety violations and strives to be in compliance with all rules at all times. Torchio said he didn’t agree that the two things weren’t related — and said that the analyst remark that the drop in Massey’s stock prices (see previous post) was “excessive” given the circumstances suggested the analyst was disagreeing with a market response to media reports about Massey’s poor safety record.
“There was already some sentiment in the market that was concerned about Massey’s compliance with the safety regulations,” Torchio said. “The market was concerned.”
Torchio was still on the stand when Judge Berger gave jurors the lunch break, with Delinsky still conducting cross-examination.
Meanwhile, Judge Berger did post to the court’s PACER system for the case a copy of the letter that Charleston Gazette-Mail editors sent to her late last week regarding media access to information about bench conferences and jury selection. There’s been no response from the judge, however.
Also, Judge Berger filed a copy of what is apparently a proposed jury instruction — that she rejected — from the defense, which was intended as a response to a note she received last week from one of the jurors.
Readers may recall that we didn’t hear much from the judge about this, and a copy of the juror’s note has not been made public. In open, court, we only learned that the juror had submitted a question “regarding the nature of the charges against Mr. Blankenship.” The judge then told jurors:
I instruct you that later in this case I will instruct you on the specific nature of the charges that are pending as well as to the legal elements of those charges.
Apparently — likely during one of the frequent private bench conferences — defense lawyers asked the judge to give the jurors a more detailed answer in the form of an instruction that would have recounted the charges from the indictment and added a reminder that Blankenship has not bee charged with causing the Upper Big Branch explosion. Defense lawyers also wanted jurors instructed that they “cannot be influenced by the explosion or by sympathy for the decedents or their families.”
We don’t know what the defense argument was for making this instruction, what the government had to say about the proposal, or what the judge’s reasons were for refusing the request. This is exactly the sort of situation that prompted Gazette-Mail editors to write to Judge Berger again about access to information about this case.