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: