U.S. District Judge Irene Berger’s latest discussion with jurors in the Don Blankenship case didn’t last long — just a few minutes.

The judge acknowledged the jury’s note, saying that “some of the jurors wanted clarification” about the words “condone” and “strive.”

Judge Berger told jurors “I instruct you that I have given to you all of the legal instructions that I can properly give to you.” The judge then sent jurors back to continue their deliberations, but before the jury had come back into the courtroom, lawyers in the case argued about what the judge should do.

The two words “strive” and “condone” are at the heart of two of the three counts pending against Blankenship. Count one charges Blankenship with conspiracy to violate mine safety standards and thwart government inspections. Counts two and three charge him with making a false statement and securities fraud in connection with the statement made after the Upper Big Branch mine explosion that said Massey does not “condone” mine safety violations and Massey officials “strive” to be in compliance with all laws at all times.

Prosecutors basically alleged that the statement was false because Blankenship and other Massey officials were conspiring to violate mine safety standards. Assistant U.S. Attorney Steve Ruby said it was up to jurors to decide what they think “condone” and “strive” mean. Defense lawyer Bill Taylor asked Berger to now consider giving the jury an additional instruction that the defense had proposed but that the judge did not include in her charge to the jury. The proposed instruction would have advised the jury “a statement of ‘fact’ is one that objectively can be demonstrated as being either true or false.” Berger said that instruction did not address the jury’s question, and rejected it.

After the jury had come and gone, Taylor renewed his motion for a mistrial. He said the jury had already “announced definitely” that it can’t reach a verdict. Taylor pointed out that at least six jurors are making two-hour round trips to Charleston for court. Another is making a three-hour round trip, Taylor said.

Taylor argued that such distances — along with the looming Thanksgiving holiday next week — wrongly served to “coerce” the jury toward making a verdict. Ruby disagrees. He reminded the court of the length of the trial testimony and said that jurors have really not deliberated that long by comparison. Ruby also argued that the jury’s question about “condone” and “strive” showed jurors are making progress.
Berger denied a motion for a mistrial.

Also, with the jury out of the room, Berger explained that this morning’s closed-door discussion between her, lawyers for both sides and several jurors was not “an effort to hide anything.” The judge said she needed to investigate a report from two jurors that they had been approached by “a member of the press.” The judge did not identify the member of the press but said he approached the jurors this morning in the courthouse lobby and asked “whether it was over” and could they talk.

Berger said that the contact did not taint the jurors — who did not talk to the press member and recounted the incident to the court — but the judge again urged the media to stay away from jurors until their deliberations are over. Berger did not explain how the closed-door session qualified for the very limited instances when criminal proceedings may be closed to the public.