Coal Tattoo

Blankenship jury selection: Look, but don’t listen

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Photo by Ken Ward Jr.

Today’s start of jury selection for the criminal trial of former Massey CEO Don Blankenship was a bit of a disappointment for the handful of Upper Big Branch families who made their way to Charleston and through the security at the Robert C. Byrd United States Courthouse.

As described in a previous blog update and this Gazette-Mail report,  U.S. District Judge Irene Berger has apparently instructed federal marshals not to allow anyone into her courtroom except potential jurors, parties, lawyers and others working on the case. Family members of the 29 miners who died at Upper Big Branch, the media, and other spectators were kept cooling our heels in a courthouse snack bar until an hour after court was to begin.

Chief Deputy U.S. Marshal Tim Goode had told use we would be able to watch and listen to the proceedings from a nearby courtroom that had been equipped with a video feed. The only reason were given for this arrangement — and this came from Goode, not from the court — was that the 100 jurors that were being questioned today took up all the seats in the courtroom.

After we learned of this arrangement, the Gazette-Mail’s Joel Ebert hand-delivered a letter to the court, asking Judge Berger to at least allow one “pool” member of the media into the courtroom where things were actually happening. Deputy Marshal Goode had refused my repeated requests that he pass on that request to the judge.

Once we got to the separate courtroom, though, the real problem became clear: We can’t hear.

Sometimes the sound system doesn’t seem adequate. Other times it looks like Judge Berger has moved her microphone away from her mouth. And lawyers and potential jurors aren’t being instructed to use microphones at all.

But it also is clear that sometimes Judge Berger is just turning off the sound system. When individual jurors were being called up for questioning, they were going to the judge’s bench, and were surrounded by prosecutors, defense attorneys, and court staff. And very seldom could any of us in the separate courtroom hear a thing.

At one point the sound was on and working well and we could hear that about five prospective jurors were being dismissed. But we weren’t allowed to hear the earlier discussion between lawyers and the judge — so we don’t know the reasons they were dismissed.

Also, by the way, there has been no public announcement (at least not when were allowed to hear) of the actual rules Judge Berger has in place for jury selection.

Did they give Blankenship’s defense team the additional 10 strikes they wanted? We don’t know. Are Blankenship’s lawyers, who complained for months he couldn’t get a fair trial in coal country now trying to get miners or others with favorable views of the coal industry onto the jury? We don’t know.

It was just this kind of secrecy that led the Charleston Gazette-Mail and West Virginia Public Broadcasting to file this motion yesterday asking the judge to ensure an open, transparent jury selection process. As we reported this morning:

Sean McGinley, attorney for the Gazette-Mail and Public Broadcasting, wrote that Blankenship’s request to have “in camera” questioning of potential jurors “would infringe on the news media and the public’s important constitutional and common law rights of open access to criminal trial proceedings and secret this important part of the criminal trial process from public view.”

Media and family members who arrived at the courthouse this morning were herded into a first floor snack bar, with soda machines and ESPN playing on the television.

Chief Deputy U.S. Marshal Tim Goode said that the 100 jurors called for questioning on Thursday would fill the courtroom. Only attorneys and jurors would be allowed in. Media and other spectators would be sent to a separate courtroom where they could watch via video feed.

Not until 10 a.m., an hour after court was scheduled to start, did security officers escort spectators to the separate courtroom. Then, when Judge Berger began asking questions of individual jurors, she called them to the bench and spectators could not hear what was being said via the video feed.

It was not clear from the video feed whether potential jurors would be excused based on their answers. Berger has not publicly announced the exact procedures for the jury selection. She has not, for example, publicly ruled on Blankenship’s request for 10 additional pre-emptory challenges.

Blankenship’s politics, and looking ahead to trial

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Gazette-Mail file photo by Chip Ellis

Late last week, U.S. District Judge Irene Berger denied the latest effort by former Massey Energy CEO Don Blankenship to delay his day in court, making it seem even more likely that Blankenship will face trial starting with jury selection that’s scheduled to begin Thursday.

West Virginia Public Broadcasting kicked off a new trial podcast, and the first episode — featuring our friend Howard Berkes of NPR and Charleston lawyer Mike Hissam (a former prosecutor in Booth Goodwin’s office who worked in parts of the Upper Big Branch case) — provides some great commentary to help listeners prepare for the trial.

Meanwhile, my colleague David Gutman gave Gazette-Mail readers a glimpse at the long political shadow cast by Blankenship, with this story on Sunday:

Before last year’s elections, before he was indicted, one year before he would go to trial, West Virginia Democrats warned that Don Blankenship was trying to buy the state.

“Why are out-of-state billionaires trying to buy West Virginia?” one flier from the state party blared, next to pictures of Blankenship and the Koch brothers. “Only you can stop them.”

For Blankenship, at least, there’s no proof that allegation was true, and as a political strategy, it certainly didn’t work.

There is no record of Blankenship making any political donations in West Virginia in 2014, and Republicans made unprecedented gains — winning the statehouse for the first time in eight decades and winning every available congressional seat.

But those gains were engineered, in part, by Blankenship’s longtime personal aides and political operatives, who continue to hold outsize influence in state Republican politics. And, as Blankenship faces three felonies and up to 30 years in jail in perhaps the highest profile trial in West Virginia history, he still casts a long shadow over West Virginia politics.

Blankenship’s favored policies — lower taxes, anti-union measures, pro-business legal reform and the easing of coal industry regulations — have mostly been implemented, in part because as the state has shifted toward the GOP his ex-lieutenants have been successful in helping Republican candidates get elected.

There’s more pre-trial coverage to come.

We’re still waiting for Judge Berger to rule on a variety of things, including most importantly the “motions in limine” (see here, here and here) that will decide what is and isn’t allowed as evidence in the trial. And the judge has yet to provide many details about how she plans to handle jury selection, or if the public will be able to see what goes on during that process.  Also pending in Blankenship’s latest effort to convince the judge to move the trial from Southern West Virginia.

Don Blankenship: Waiting for the trial

Mine Explosion

With just three weeks left before the Oct. 1 start of jury selection in the trial of former Massey Energy CEO Don Blankenship, the calls and emails from out-of-town journalists are on a little bit of an upswing.

National media outlets are looking for some tidbit of gossip or some shred of never-reported news that they can turn into an exclusive. All manner of freelancers and authors are hoping the local press has some inside information — Is the trial really going to go this time? When will they be done with this tiresome jury selection and get to the opening arguments? What’s the schedule for the best witnesses?

Personally, there’s part of me that would be more than happy if most of the media (and a lot other curious folks) stayed away. Of course, we want everyone to get their news from the Gazette-Mail. And it’s not that I don’t think the more-the-merrier isn’t really the case when it comes to stories about the coal industry’s real impact on West Virginia communities. But there’s a fine line where it can all become a bit of a circus. Let’s hope that isn’t what happens when Blankenship gets his day in court.

Still, there is an obvious role for the media to play. We’re supposed to inform the public about the workings of the courts and, in the process and through transparency, create more public confidence in our nation’s criminal justice system. We’re supposed to make sure that judges and prosecutors don’t abuse the rights of defendants. We’re supposed to make sure everyone in the system does their jobs.

Hopefully, the results of the media’s legal battle to overturn U.S. District Judge Irene Berger’s gag order in the Blankenship case has helped to serve those purposes. With almost all of the filings in the case now public record, we’ve been able to reveal to the public Blankenship’s argument that the case is all political, and provide readers with some preview and context for the sorts of evidence and legal arguments that will come up once the trial gets going (see here, here, here and here). And for you national media folks, yes, if you read the court filings on PACER (and we’ve been posting most of them online, linking to them in our stories, and providing anyone without a PACER account free access), there have been some fascinating new details that have come out about Blankenship and his way of running a coal company.

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