Coal Tattoo

Jury sent home early Wednesday

The jury in the Don Blankenship case has been sent home for the day because one of the jurors is sick. U.S. District Judge Irene Berger dismissed the jury at about 3:20 p.m. from their ninth day of deliberations.


F. BRIAN FERGUSON | Gazette-Mail Don Blankenship and his legal team exit the Robert C. Byrd Courthouse during Tuesday's lunch break.

Photo by F. Brian Ferguson

Jurors in the Don Blankenship case have just taken their daily lunch break, but the latest news just in is that prosecutors have filed this new motion asking U.S. District Judge Irene Berger to give jurors a second “Allen charge” before she considers declaring a mistrial.

The motion begins:

The United States moves that, in the event the jury again states it is deadlocked, the Court give a second Allen charge before considering a mistrial. At the moment, of course, the jury continues to deliberate, and it may well reach a verdict that renders this motion superfluous. The United States nonetheless submits the motion now to give the Court sufficient time to consider it should it ripen.

Here are the reasons prosecutors say this is desirable:

First, the jury’s behavior these past two months shows coercion is unlikely. As the Court observed, the jury has demonstrated exemplary patience, attentiveness, and seriousness of mind. It is evident that the jury regards its duty soberly, and a properly balanced Allen charge would not sway it either way.

Second, the jury has not yet said it cannot make further progress. There have been two notes about the jury’s lack of agreement thus far, and both have asked the Court for direction on how to go forward. Early on, the November 19 note asked, “How long do we deliberate?” The December 1 note sought further direction more expressly, asking, “Do you have any further instructions as to what we should do?” Even after several days of deliberation, the jury thus holds open the prospect of progress and invites the Court to assist it in reaching a verdict. A second Allen charge will not coerce a jury that has taken such a responsible and deliberate approach to its work.

Third, the length of deliberations, even after a second Allen charge, will not be disproportionate to the amount of evidence the jury has seen and heard or the length of that evidence’s presentation. If the case had lasted only a day or two, a second Allen charge after more than seven days’ deliberations might be taken as an order to reach a verdict no matter what. The situation here differs greatly. Even if another deadlock note is received after further deliberation, directing the jury to continue deliberating would not be a disproportionate step in light of the evidence presented. This maintenance of proportionality further minimizes any possibility of coercion.

Continue reading…

A pedestrian stands on a street corner as a message is displayed in a storefront window along the business district, Wednesday, Oct. 7, 2015, in Welch, W.Va. West Virginia is the only state in the country where more than half of adults are not working, according to the Census Bureau. It is tied with Kentucky for the highest percentage of residents collecting disability payments from Social Security, according to the Kaiser Family Foundation. And the death rate among working-age adults is highest in the nation, 55 percent higher the national average, according to the Centers for Disease Control and Prevention. (AP Photo/David Goldman)

A pedestrian stands on a street corner as a message is displayed in a storefront window along the business district, Wednesday, Oct. 7, 2015, in Welch, W.Va. (AP Photo/David Goldman)

As we waited at the Robert C. Byrd United States Courthouse yesterday for word on any movement by the jury in the Don Blankenship criminal case, it was interesting to sit in on a hearing that U.S. District Judge Irene Berger was having on another coal-related case. The Gazette-Mail’s Kate White had written about it before, prior to it being moved to federal court:

A Wyoming County couple says the buildup of methane gas from an underground mining operation caused an explosion at their home Sunday — a week after the couple filed a lawsuit against the mining company.

James and Rose Surratt, who own two properties on Woosley Road in Pineville, filed a motion Tuesday asking for emergency injunctive relief against Pinnacle Mining Co. James Surratt is an underground coal miner for Pinnacle. The company is in the beginning process of setting up an underground longwall mine that runs, in part, underneath Woosley Road.

In addition to the lawsuit filed last week by the Surratts, other residents and a small-business owner on or near Woosley Road also filed a lawsuit Tuesday against Pinnacle Mining for damages that allegedly occurred after the company began operations in their area.

Some of the out-of-town press seemed at least mildly interested. Watching the hearing was better than just sitting on the wooden benches in the courthouse lobby, though plenty of other media were content to read their novels, chat or speculate about what the jury was up to. A few folks were amazed by the case — I mean, come on, the house blew up, right?

Of course, West Virginians and other coalfield residents know that suffering all manner of mishaps, inconveniences — and disasters — has long been part of living life with the mining industry.

Anybody who was paying much attention yesterday when the residents’ expert witness, legendary mine engineer and inspector Jack Spadaro, was explaining his professional history — from his early days following the Farmington Mine Disaster, to his investigation of the Buffalo Creek Disaster, to his work on the Martin County Disaster — could not help but be reminded of that. And of course, as Spadaro rattled off those terrible parts of our history, eight women and four men in the next room were deliberating on the future of Don Blankenship, the former Massey Energy CEO whose indictment was spurred by a federal investigation of Upper Big Branch, the worst coal-mining disaster here in a generation.

At about the same time, readers around the world were checking out the latest “big picture” take on the region’s coal industry, provided by The Associated Press:

The seams of coal in some of Eddie Asbury’s mines in McDowell County are so thin that workers can barely squeeze down them. They enter on carts nearly flat on their backs, the roof of the mine coursing by just a few inches above their faces. They don’t stand up all day.

To keep his business operating with such a paltry amount of coal, Asbury has to do everything himself. He has no use for the shiny, multimillion-dollar mining machines on display this fall at the biannual coal show nearby. His equipment is secondhand stuff that he repairs and refurbishes. The coal he and his workers scrape out of the mountain is washed and prepared for sale in a plant Asbury and a colleague built themselves.

“It’s how we survive,” said Asbury, 66, a miner since 1971.

Then there’s this kicker of a line:

Even coal is barely surviving in coal country — and coal is about the only thing Central Appalachia has.

Continue reading…

F. BRIAN FERGUSON | Gazette-Mail Don Blankenship, center, and his legal team exit the Robert C. Byrd Courthouse during Tuesday's lunch break.
Photo by F. Brian Ferguson

Today’s move by U.S. District Judge Irene Berger to deliver an “Allen charge” to jurors is a potentially significant development in the Don Blankenship trial.

Here’s what you need to know:

— The “Allen charge” is not a new concept:  The name comes from an 1896 U.S. Supreme Court case called “Allen v. United States.”

The case involved 14-year-old Alexander Allen who was tried and convicted twice of killing 18-year-old Phillip Henson. During a third trial in which Allen was eventually convicted again, jurors told the trial judge they were deadlocked. The Judge Isaac Parker instructed the jurors to re-examine their opinions, thus leading to what has come to be known as an Allen charge. Parker’s instruction was nearly verbatim from Commonwealth v Tueywhich was an 1851 Massachusetts state court decision that used similar instructions.

In its ruling affirming Allen’s third conviction,  the Supreme Court upheld the trial court’s instructions that jurors should carefully examine their views and consider whether they could be wrong:

The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself.

It cannot be that each juror should got to the jury room with a blind determination that the verdict shall represent his opinion or the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself.

— It’s controversial: Especially when given in strong terms, Allen instructions are sometimes referred to as “dynamite” charges because of their ability to “blast” a verdict out of a deadlocked jury.

An Allen Charge has also been referred to as a “nitroglycerin charge,” “the third degree instruction” and a “shotgun instruction.”

On appeal, Allen charges can sometimes be overturned if they are determined to have had an “impermissibly coercive” effect on the jury.  For example, judges are generally not supposed to tell juries that they “must” reach a verdict. Also, judges have been advised not to give an Allen charge after inquiring into the numerical division of the jury. In these cases, holdout jurors could interpret the charge as directed specifically at them.

Some defense lawyers argue — as Bill Taylor did on Blankenship’s behalf — that a defendant has a right to a hung jury. In a 1970 case called United States v. Sawyers, the 4th Circuit said that theory is wrong. A defendant, the court said, “has only the right to have the jury speak without being coerced.”

The 4th Circuit has said that one way for trial judges to avoid coercion when giving an Allen charge is to instruct both jurors in the minority and those in the majority to re-examine their positions, as Judge Berger did in the Blankenship case.

— It’s legal in this jurisdiction:  Although several courts have disallowed the use of an Allen charge – for fear of it being coercive and possibly singling out minority jurors – this past March, the 4th U.S. Circuit Court of Appeals — which includes West Virginia — upheld the use of an Allen charge.

In fact, the 4th Circuit ruled in that case that a trial judge could deliver not just one — but two — Allen charges. The court declined to set a limit on the number of times judges can use the instruction to try to encourage continued deliberations.  The 4th Circuit said it reviews appeals of Allen charges based on the “likelihood of coercion” of jurors. Some of the factors to be considered include the language of the instruction, its incorporation with other instructions, the timing of the instructions, and the length of the jury’s subsequent deliberations.

The 4th Circuit said, for example, that three hours of deliberations after a second Allen charge provided “adequate assurance” that the jury was not “improperly coerced.” Also, “very tellingly,” the court said, the jury in the case came back with a split verdict — further suggesting they had not been coerced.

At the government’s request, Judge Berger in the Blankenship case included in her Allen charge an instruction that jurors could return a verdict on some counts, but not on others. The 4th Circuit ruling this March also upheld an Allen charge that included language telling a deadlocked jury that a mistrial could result in lost “time, money and other resources” if the case had to be retried. Judge Berger declined to use such language in her Allen charge in the Blankenship case.

— Judges have broad discretion in these circumstances:   Appeals courts have ruled that trial-court judges like Judge Berger are often “in the best position to gauge whether a jury is deadlocked or able to proceed further with its deliberations.

The U.S. Supreme Court has ruled that trial judges may declared a mistrial “whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity” for doing so. The decision is left to the “sound discretion” of the judge, but the power “ought to be used with the greatest of caution, under urgent circumstances, and for very plain and obvious causes.”

UPDATED: Judge tells jury to continue working.

The jury in the Don Blankenship trial has sent a note to U.S. District Judge Irene Berger indicating they remain deadlocked.

Shortly before 11 a.m., Berger received a note and subsequently called attorneys for both the prosecution and defense.

At around 11:15, Berger told attorneys the note indicated that the jury remained deadlocked. Jurors also asked “do you have any further instructions?”

Berger indicated that she intends to give jurors an “Allen Charge,” an instruction that is used to encourage a deadlocked jury to continue deliberating toward a verdict.Lead defense attorney Bill Taylor objected to the Allen Charge, instead calling for a mistrial. Assistant U.S.

Attorney Steve Ruby did not object to the Allen Charge, and asked that the judge follow the language used in previous Allen Charges used in the Fourth Circuit.

In addition to the Allen Charge, Ruby asked Berger to use a previously proposed defense jury instruction.

Court remains in session. Additional updates will be posted as they become available.

Blankenship jury deliberates another day

Jurors in the Don Blankenship criminal case put in another full day of deliberations today.

The eight women and four men reported to the Robert C. Byrd United States Courthouse at 9 a.m. and left for the day at about 5 p.m.

No verdict was reached, and U.S. District Judge Irene Berger did not announce any notes received from the jury.

Jurors are due back at the courthouse tomorrow at 9 a.m. to resume their work.

U.S. District Judge Irene Berger this morning cautioned jurors in the Don Blankenship trial to “be vigilant” about discussing the case outside of the jury’s private deliberation room.

Berger told jurors that they must “walk away” if necessary to avoid members of the public talking about the case in their presence.

The judge also gave jurors an additional instruction about the way they deliberate.

“Every juror should be able to express an opinion if he or she wants to do so,” Berger told the jurors. She told them they must “be respectful” of each other and “treat each other with courtesy.”

Berger’s instructions this morning came as jurors began their seventh day of deliberations following a five-day break for Thanksgiving. Instructions also came following a closed-door session last Tuesday between Berger, prosecutors and Blankenship’s defense team. The subject of that meeting has not been disclosed and Berger has not said why it needed to occur in private.

This morning’s instructions to the jury came during a brief discussion between Berger and the attorneys that took place in open court but was held 15 minutes before the scheduled start of the day’s court session.

Berger said that lead defense lawyer Bill Taylor’s flight to Charleston was delayed and that Taylor had asked her to hold off on any additional jury instructions until he could be present. Blair Brown, another of Blankenship’s attorneys, asked the judge to also 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. Brown then asked to make several other requests, but that he be allowed to do so at the bench. Berger granted that request and held a private discussion with the lawyers before the jury came into the room.

No details about Brown’s requests were disclosed.

Blankenship jury goes home for Thanksgiving

The jury in the Don Blankenship case deliberated all day today before going home for a five-day Thanksgiving break.

Jurors are scheduled to return to the courthouse at 9 a.m. Monday.


SAM OWENS | Gazette-Mail The Robert C. Byrd Federal courthouse in Charleston, Wednesday, October 7, 2015.

Photo by Sam Owens

Jurors in the Don Blankenship criminal case begin their deliberations shortly before 4 p.m. on Tuesday, Nov. 17. They have deliberated all day each weekday since then. Here’s a list of the substantive notes that jurors have sent to U.S. District Judge Irene Berger and the judge’s response.

Wednesday, Nov. 18, at about 4:40 p.m.

Jury note: “Can we listen to the CDs?” [Referring to recordings of Don Blankenship’s telephone calls, played during trial by prosecutors]

Judge’s response:  “We will provide a means for you to listen to the CDs.”

Thursday, Nov. 19, 2015, at about 11:45 a.m.

Note: “How long do we deliberate? We cannot agree.”

Judge’s response: “I would simply say to you that given the length of this trial and the number of witnesses that you heard and the amount of time that you have deliberated, I am going to order that you continue your deliberations in this case.”

Friday, Nov. 20, 2015, at about 2:40 p.m.

Note:  “Some of the jurors want clarification on the statement in question in Count Two and Count Three of the indictment, “We do not condone any violation of MSHA regulations,” and “We strive to be in compliance with all regulations at all times,” specifically the words “condone” and “strive.””

Judge’s response:  “I instruct you that I have given to you or provided to you all of the legal instructions that I can properly give to you with respect to Counts Two and Three of the indictment.”

UPDATED — Tuesday, Dec. 1, at about 11:50 a.m.

Note:  “You honor, the jury is still deadlocked. Do you have any further instructions as to what we should do? Thank you.”

Judge’s response:

“Ladies and gentlemen, you have informed me of your inability to reach a verdict in this case. At the outset, the Court wishes you to know that although you have a duty to reach a verdict, if that is not possible, the Court has neither the power nor the desire to compel agreement upon a verdict. The purpose of these remarks is to point out to you the importance and the desirability of reaching a verdict in this case provided, however, that you as individual jurors can do so without surrendering or sacrificing your conscientious scruples or personal convictions. You will recall that upon assuming your duties in this case, each of you took an oath. The oath places upon each of you as individuals the responsibility of arriving at a true verdict upon the basis of your opinion and not merely upon acquiescence in the conclusion of your fellow jurors.

“However, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to reach a verdict by a comparison of views and by consideration of the proofs with your fellow jurors. If, after conscientious deliberations, you are only able to reach a verdict concerning some of the counts, you may return a verdict concerning those counts. During your deliberations you should be open-minded and consider the issues with proper deference to and respect for the opinions of each other, and you should not hesitate to re-examine your own views in the light of such discussions. If at this point you find yourself in the minority, please listen and carefully consider the views of the majority. If you find yourself in the majority, please listen and carefully consider the views of the minority. You should consider also that this case must at some time be terminated; that you are selected in the same manner and from the same source from which any future jury must be selected; that there’s no reason to suppose that the case will ever be submitted to 12 persons more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will ever be produced on one side or the other.

“You may retire now, taking as much time as is necessaryfor further deliberations upon the issues submitted to you for determination in light of all of the Court’s instructions.”

UPDATED: Wednesday, Dec. 2:

Note 1, 1:30 p.m.:   “Your honor, one of the jurors, Bill Rose, has been sick all day with sore throat, fever and chills. Thank you.”

Note 2,  2:30 p.m.:   “Your honor, may we take a 20-minute break at 3:00?”

Judge’s response, about 3:15 p.m.:

“Good afternoon, ladies and gentlemen. I have received your note when you asked to take a 20-minute break at 3:00 and to advise me that Mr. Rose is too ill to participate. So I’m going to release you for the day, Mr. Rose, so that you can attend to your medical issues … Mr. Rose, if you continue to feel ill, you can contact our office if need be. Otherwise, I will see you all tomorrow morning at 9:30.”



Members of the jury in the Don Blankenship case met for about three hours this morning, continuing their deliberations into a 6th day.

The eight women and four men took a lunch break at about noon, after reporting for duty at 9 a.m. They are due back this afternoon to continue deliberating.

No notes of any substance were announced by U.S. District Judge Irene Berger.

Blankenship jury goes home for the evening

Jurors in the Don Blankenship case have gone home for the evening.

U.S. District Judge Irene Berger released the 12-person jury to go home shortly before 5 p.m. Jurors are due back at the Robert C. Byrd United States Courthouse at 9 a.m. tomorrow to resume their deliberations.

They met for about 6 1/2 hours today.  That makes more than 26 hours of deliberations over five days since Judge Berger gave them the case late last Tuesday afternoon.

Jurors sent no substantive notes to the court today. They were heard from and seen only when about 7 of them took mid-morning and mid-afternoon breaks and when 10 of them left the building for lunch. On those occasions, the jurors were closely escorted by court security officers.

Jurors in the Don Blankenship case deliberated for about three hours this morning, returning to work after about spending about 20 hours over four days last week considering charges against the former Massey Energy CEO.

The eight women and four men reported to the Robert C. Byrd United States Courthouse at about 9 a.m. Seven of them were escorted from their jury room for a break at about 10:30 a.m., and then the jurors took a lunch recess at noon. No notes from the jury were announced by U.S. District Judge Irene Berger.

Jurors are due back at 1:20 p.m. to resume deliberations.

More on condone and strive, as per closing arguments

This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

We’re back from the courthouse following U.S. District Judge Irene Berger dismissing jurors for the day.

They have been directed to return at 9 a.m. on Monday. Prior to being dismissed, the jury found out court will not be held on Wednesday and Friday of next week to accommodate the Thanksgiving holiday.

Earlier in the day, jurors sent a note to the judge specifically asking for clarity on the words “condone” and “strive.”

The words are contained in counts two and three of the superseding indictment. In those counts, the government alleges Blankenship made a false statement and committed securities fraud in connection with a statement issued by Massey Energy following the 2010 Upper Big Branch Mine disaster.

Here are the sentences in question:

“We do not condone any violation of MSHA regulations.”

“We strive to be in compliance with all regulations at all times.”

Although juror seemed to be unclear about the words on Friday morning, they did hear lawyers from both the prosecution and defense discuss the words in their closing arguments.

U.S. Attorney Booth Goodwin said “condone” several times in his closing statement, including during this passage, where he discusses testimony from Stanley “Goose” Stewart:

You may recall after many objections, Mr. Stewart was finally able to talk about the understanding that existed. He said that, “My experience there, the attitude was, the laws don’t apply to us. We don’t care. They not only condoned breaking them, they encouraged breaking them, and they demanded that they be broke.

Towards the end of his remarks, Goodwin concludes:

Again, we have proven beyond a reasonable doubt that the statement made by the defendant and his co-conspirators that, “We do not condone any violation of the mine safety laws and strive to be in compliance with all laws at all times,” was totally and completely false. And the defendant knew it.


But even if you buy that, you have to admit that at the very least the statement that, “We do not condone any violation of mine safety laws and strive to be in compliance with all laws at all times,” is misleading without knowing all the facts that you now know; facts that the defendant knew at the time that he caused that statement to be made; facts that you now know through the Ross memo and all of the evidence that you’ve heard in this case are lies.

During his closing remarks, lead defense attorney Bill Taylor said:

Now when you ask yourselves whether Massey, the company, condoned MSHA violations, whether that’s a false statement, I want you to remember that Mr. Blankenship received this anonymous survey from 2,500 people.

The survey Taylor mentioned is one that was provided to jurors as a defense exhibit.

Taylor added:

I respectfully submit, ladies and gentlemen, when you ask yourself, and when Mr. Blankenship is accused of making a false statement, as to whether Massey condones violations or is striving to avoid them, you’ll remember this.

Again, he was reminding them to think about the survey, which he said found that 94 percent of respondents said Massey “stresses proper safety procedures.”

Taylor continued:

Did he (Blankenship) think it was a lie when he agreed to the statement that said Massey condones and strives to avoid.

Later Taylor mentions the statement once again, saying:

As Mr. Childress and everybody else said, the citations were public. And the shareholder statement acknowledges the violations and says, “We try to correct them as soon as possible. While we get violations, we don’t condone them. And when we get them, we strive or try not to get them.

Mr. Poma acknowledges – he testified that the paragraph specifically acknowledged receiving the citations, and that even though we get them, we don’t condone them, and we try to prevent them.

Taylor continued:

Understanding the reality that a coal mine received citations doesn’t mean that you condone them. And everything in this record that’s before you that you will deliberate about in the jury room demonstrates that Massey was trying to prevent them; that Don Blankenship was trying to prevent them and trying to reduce them.

So the question before you is whether the Government has proved beyond a reasonable doubt that Mr. Blankenship is guilty of these two counts because of the statement.

During his closing remarks, Assistant U.S. Attorney Steve Ruby had this to say about the words “condone” and “strive”:

The statement was an attempt to tamp that down. It said, “We do not condone any violation of MSHA violations, and we strive to be in compliance with all regulations at all times.”

What a claim. This was a company that the defendant knew had more than 10,000 cited safety violations in 2008, more than 10,000 cited safety violations in 2009, far more than any other coal company in America. This was a mine, UBB, that had more unwarrantable failure orders than almost any other single mine in America, and hundreds of violations of the safety laws every year.

Ruby was the only one of the three attorneys to address the jury to actually provide a definition of the word “condone.” Here’s what he said:

The critical question, the thing people didn’t know, was whether the violations had been intentionally tolerated.

And people at the upper levels of the company, people like the defendant, had known about those violations and allowed them to go on. That’s what condone means. It doesn’t mean that you want something or that you actively seek it out or promote it. The word means something different. It means you know about something and, even if you’d rather not have it happen, you allow it to continue anyway for some reason. For example, to make more money.

In her charge to the jury, Judge Berger mentioned “condone” and “strive” several times but mostly to explain them as being a part of the statement at the center of counts two and three.

Here’s one reference she made:

No statements other than the two statements charged in Count Two can be the basis of a conviction to Count Two. The indictment charges that the term “we” in the statement refers to Massey Energy Company. Thus, in order for the statement to be false, fictitious, or fraudulent, it is not sufficient to find just that the defendant condoned violation of MSHA regulations and/or did not strive to be in compliance with all regulations at all times.

To establish that the statements charged in Count Two are false when made, the Government must prove beyond a reasonable doubt that on or about April 8th, 2010, Massey Energy Company condoned violations of MSHA regulations and/or did not at all times strive to be in compliance with all regulations.

In total, there were 23 uses of the word “condone” and 18 uses of “strive” in the closing arguments and judge’s charge to the jury.

More on jury’s latest note

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.

Jurors in the Don Blankenship trial this afternoon asked U.S. District Judge Irene Berger to define for them the words “condone” and “strive.”

Berger said the jury sent her a note asking for more information about those words, which are at the heart of two of the three felony counts pending against Blankenship.

Blankenship is charged with making a false statement and securities fraud based on the statement Massey Energy issued after the Upper Big Branch mine disaster, saying the company did not condone mine safety violations and strove to be in compliance with all laws at all times.

Berger called lawyers and the jury into the courtroom shortly after 2:30 p.m. and told the jury she had given them all of the legal instructions she could related to those counts of the indictment.

Berger also explained that the 30-minute closed-door session this morning was held so she and the lawyers could question two jurors who reported that they had been approached by a member of the media. Berger said the jurors did not talk to the media representative, and she asked news reporters to stay away from jurors while they are deliberating.

Berger said she plans to call the jury back in before the end of the day Friday and advise them that, if they have not reached a verdict by then, she would give them the Friday after Thanksgiving off, and probably the Wednesday before off as well.

This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

Several new court filings in the Blankenship trial today. The first is a response from U.S. District Judge Irene Berger denying Blankenship’s defense attorneys’ emergency motion regarding jury instructions.

In their emergency motion, the defense asked Berger to clarify her orders to the jury. Here’s what they wanted the judge to say:

“I wish to follow up on my instruction before lunch to continue your deliberations. As I instructed you previously: [I]t is your duty as jurors to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment, because a verdict – whether guilty or not guilty – must be unanimous. Each of you must make your own conscientious decision, but only after you have considered all of the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussions persuade you that you should. But do not come to a decision simply because other jurors think it is right or simply to reach a verdict.”

This morning, Judge Berger filed her response, which reads:

After careful consideration, finding that the jury has deliberated only for a period of hours after hearing approximately five (5) weeks of testimony, and finding that the Court has previously instructed the jury in accordance with the proposed emergency instruction, the Court does hereby ORDER that the motion be DENIED.

The second filing comes from the government. This one is essentially transcripts from the audio recordings, some of which the government used during the trial, as well as other documents, including news articles and citations the government used during the trial. As of right now, all of the documents attached to the filing are not publicly available via PACER.

The third filing from today is a motion by the Associated Press asking Judge Berger to release information about the jurors.

Juror information is one of the issues that we have been fighting to gain access to for a while.

The motion, written by Sean McGinley, concludes:

The right of public access as held in Baltimore Sun, supra, clearly applies here, as the jury was chosen over a month ago, and there is no constitutionally valid to withhold the names and addresses of the trial jurors. The Associated Press therefore requests and moves the Court to direct the Clerk to release the names and addresses of the trial jurors immediately.

Check out the entire filing here.

As of this afternoon, Judge Berger has not responded to the request.

Members of the jury in the Don Blankenship case have taken a break for lunch. They started the break at about 12:30 and are due back at the Robert C. Byrd United States Courthouse at 1:50 p.m.

Today, when jurors left the building, they were escorted out of the door by court security officers, who walked around the corner as they made their way to the Town Center Mall.

Jurors deliberated for about 3 1/2 hours before taking their break.

A private hearing between U.S. District Judge Irene Berger and both sides in the Don Blankenship case ended at about 11:30 a.m. Friday.

Neither prosecutors nor defense lawyers would comment on what happened during the 30-minute proceeding.

“It’s a matter to keep the integrity of the proceeding,” said U.S. Attorney Booth Goodwin. “It’s a matter that will be placed on the record when we get back together.”

Goodwin said he did not know when that would be, but that it would likely not occur until the judge hears again from jurors. When lawyers emerged from the courtroom, there was a brief but heated exchange between Goodwin and Gary Quarles, whose son was killed in the Upper Big Branch mine, when Goodwin would not tell Quarles and other family members what had occurred.

“We are the families,” Quarles said. “Anything she’s got to say, we should be able to hear.”

Jury deliberation continues

Jurors in the Don Blankenship criminal case resumed deliberations this morning on the three felony allegations against the former Massey Energy CEO.

The eight women and four men returned to the Robert C. Byrd United States Courthouse in downtown Charleston at about 9 a.m. They were starting their third full day of work after also deliberating for about an hour on Tuesday.

Families of the 29 miners who died in the 2010 explosion at Upper Big Branch and members of the media waited in the lobby outside the locked door of U.S. District Judge Irene Berger’s 5th floor courtroom for word of any notes from the jury.

This is an update by Joel Ebert, who is covering the Don Blankenship trial with Ken Ward Jr.

One of the most emotional parts of the Blankenship trial occurred when Assistant U.S. Attorney Steve Ruby used his closing argument to outline a series of places he asked the jury to see.

Here’s what he said:

And I want you to picture what you have heard about that in this case. It’s easy to, to, as we sit here over the course of weeks and hear testimony, let it turn into words that are running together. But picture that. Picture going underground every day miles away from daylight in complete darkness. Some of you know something about that. Picture, if you can, being miles away from fresh air, not being able to get enough of it; being told by your bosses to keep on mining anyway without so much as a breeze, in methane gas that you know can become explosive if there is not enough air to blow it away from you.

Picture mining day in and day out, eight or ten hours a shift, while you are literally choking on the coal dust in the air around you. Picture having your boss tell you to go reroute the air in the mine because safety inspectors are coming and you’ve got to trick them into thinking there’s enough fresh air in the part of your mine where your friends are working. And then picture being told to go take your friends’ fresh air away as soon as the inspector leaves so they go back to sweating and choking and being afraid that the methane gas is going to come back again.

Picture a miner who knows that what is standing between him and black lung disease is the dust pump, the sampling device that’s supposed to check how much coal dust he is breathing. Picture that miner being told that he has to cheat on the sample so he can keep eating coal dust without anybody outside ever finding out about it.

Picture Larry Adams, the fire boss, that came in here and testified, probably 70 years old, I don’t know; 40 years in the mines, bad legs, being told that you have to walk miles upon miles of conveyor belts every night, alone in the dark, and change the belt rollers, all alone in the dark; do the maintenance, again all alone; fix the roof in the places that you find it falling down, and then shovel up tons of coal that’s come off the belt. Again, all alone.

And if you don’t, and an inspector finds a violation on your belts, then you’re the one who gets, quote-unquote, disciplined.

Being told to cover an entire mine the size of UBB with only one other person to help you, that would be a joke if it weren’t so scary. How in the world is a human being supposed to do all that?

Picture telling your bosses you were afraid something bad, something serious was going to happen at UBB, telling anybody who would listen and being ignored. Picture walking through a mine and seeing everywhere in the tunnels around you coal dust, knowing it’s explosive, knowing there’s an easy way to make it safe by putting down pure white rock dust on top of it, but the people in charge won’t take the time to do it.

Picture being told it’s your job to spread the rock dust that can stop explosions from happening or spreading in a coal mine but then picture being given a piece of equipment that won’t work, that’s broke down half the time.

Picture asking over and over again for a rock duster that works and being ignored. Picture being pulled away night after night from what you’re supposed to be doing because the mine was shorthanded and there was other work that was more important to keeping the coal rolling on the belts.

Picture coming to work at the end of March in 2010 and writing a note to your boss in the middle of the night, “I’m set up to fail here.”

Picture being a section foreman at UBB.

Picture Rick Hutchens who came in here and testified, trying to do the right thing, trying to follow the law, and, and doing everything he can to keep his crew safe. Picture him being sent all the way down to the far end of the mine — he’s shorter than I am — forced to wade through water up to his chest, in places up to his neck, slip-sliding across the bottom of the mine in pitch black darkness. Picture him taking one of his men with him because he knew that if anything happened to him back there nobody would ever find him.

Picture him trying to follow the law, risking — risking his life in water that’s almost up to the roof. And the thanks that he gets for it is somebody threatening to fire him three or four times a week for trying to do the right thing.

During the above comments, the families of the 29 miners who died in the 2010 explosion at the Upper Big Branch mine could be seen crying. Ruby was outlining the harrowing conditions they knew all too well and it was hard for them to listen.

Today, I caught up with Judy Jones Petersen, who lost her brother Dean Jones in the 2010 explosion, to find out what she thought of Ruby’s tactic.

Here’s what she said: