Friday, October 2, 2015

Blankenship’s judge opens questioning of potential jury candidates

Blankenship’s judge opens questioning of potential jury candidates

By Joel Ebert, Federal Courts Reporter and Ken Ward Jr.
Thursday, October 1, 2015


Jury selection began Thursday in the criminal trial of Don Blankenship, with members of the public able to watch — but not listen to — the questioning of potential jurors who will decide the former Massey Energy Co. CEO’s fate.
U.S. District Judge Irene Berger quizzed prospective jurors for nearly five hours on the initial day of an effort to seat an impartial jury to decide the conspiracy and fraud case prosecutors brought against Blankenship after an investigation following the Upper Big Branch Mine disaster.
Members of the public, the news media and families of miners killed at Upper Big Branch were barred from the courtroom where the jury selection was actually taking place, and were sequestered instead in another courtroom, equipped with a video feed but with sound that was inaudible for most of the day.
Blankenship, 65, faces charges that he conspired to violate mine safety standards before the Upper Big Branch Mine disaster occurred and, after the explosion, lied to securities regulators and investors about Massey safety policies — saying the company always tried to follow the rules — in an effort to stop stock prices from plummeting amid widespread news reports about problems at the company’s mines.
Unlike a court appearance in Beckley, when U.S. Marshals helped Blankenship come and go from the courthouse without facing news cameras, the defendant walked up the steps of the Robert C. Byrd United States Courthouse in Charleston Thursday morning in plain view after exiting a light blue minivan that pulled up outside the building’s main entrance on Virginia Street.
“Yes,” Blankenship said with a smile, when asked if he still maintains that he is innocent of the charges against him.
Blankenship alleges the case against him is a “vindictive” and “selective” prosecution being carried out by his political enemies. In court records, his lawyers have hinted at a defense that says Blankenship was really a mine safety leader but also a coal company CEO whose job it was to push for lower costs and higher coal production.
Prosecutors say Blankenship conspired to put production ahead of safety and to hide the resulting hazards from federal inspectors. They plan a parade of former Massey officials and miners and a host of internal company records they argue implicate Blankenship.
Thursday afternoon, Blankenship’s lawyers filed a motion that urged Berger to prohibit prosecutors from presenting as evidence citations issued to the Upper Big Branch Mine by the U.S. Mine Safety and Health Administration. Defense lawyers said the government plans to try to introduce these citations without calling to testify the inspectors who wrote them. The defense says that, without the inspectors testifying, the citations are hearsay and would deprive Blankenship of his right to confront his accusers.
So far in the case, Berger has not gone along with Blankenship’s arguments that he can’t get a fair trial in Southern West Virginia, although she did move the trial from Beckley to Charleston to enlarge the potential jury pool and bring in some non-coal counties.
On Thursday, court officials said Berger called in the first third of the 300 prospective jurors who previously had been told to fill out a written questionnaire that required personal information and asked things such as whether the jurors had ever belonged to a labor union or knew anyone who had been killed in a coal mine. Berger has not made public the juror responses.
The judge also has not made public any information describing her jury-selection rules for the case or her reasons for those rules.
For example, it is not clear if defense lawyers were granted the 10 additional pre-emptory challenges they had sought. Typically, defense lawyers in this sort of case could strike 10 jurors and prosecutors six jurors for any reason. Other prospective jurors also could be released for “cause,” with approval of the judge. Under the Sixth Amendment to the U.S. Constitution, criminal defendants are entitled to “a speedy and public trial, by an impartial jury of the state and district” where the crimes are alleged to have occurred.
When news representatives and family members arrived at the courthouse Thursday morning, they were herded into a first-floor snack bar with soda machines and ESPN playing on the television.
Chief Deputy U.S. Marshal Tim Goode informed those present that the 100 jurors called for questioning that day would fill the courtroom. Only attorneys and jurors would be allowed in. The news 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 other courtroom. Then, when 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.
The video feed showed prosecutors and defense lawyers huddled at the judge’s bench as jurors were called up, one by one, and questioned by the judge. Only a few parts of the process — and none of the juror’s answers — could be heard by those in the separate courtroom.
Berger could be heard announcing the names of jurors she wanted to question next, but then the sound feed to the other courtroom was turned off or inaudible. At one point, the judge appeared to have forgotten to turn the sound off and parts of a question of one juror could be heard, until U.S. Attorney Booth Goodwin reminded the judge to turn off her microphone.
Later, Goodwin would not say how many jurors had been released from serving on the case.
“A number of jurors were questioned,” Goodwin said after court ended for the day at about 5 p.m. “There are more to go.”
Family members of the miners killed at Upper Big Branch who had made the trip to Charleston for the jury selection left after they learned they weren’t going to be able to hear the proceedings.
“We are anxious for justice to be done, and it will be done,” said Dr. Judy Jones Peterson, whose brother, Dean Jones, was among the 29 miners who died in the April 5, 2010, explosion.
Earlier in the case, Blankenship’s lawyers filed a motion that urged Berger to have all questioning of potential jurors occur in private, without other jurors or the public being able to hear what was discussed. The judge has not issued a public ruling on that motion.
Wednesday afternoon, Sean McGinley, a lawyer for the Charleston Gazette-Mail and West Virginia Public Broadcasting, filed a motion asking Berger to ensure that the jury selection process occurs in public and to provide the news media with access to trial exhibits on a daily basis. The judge has not publicly ruled on that motion.
Thursday morning, the Gazette-Mail sent a letter to Berger requesting that she allow one pool reporter into the courtroom of potential jurors. The judge has not publicly responded to that letter.
Reach Ken Ward Jr. at kward@wvgazette.com, 304-348-1702 or follow @kenwardjr on Twitter.

http://www.wvgazettemail.com/article/20151001/GZ15/151009970/1419

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