The long-awaited criminal trial of former Massey Energy CEO Don Blankenship on charges related to the Upper Big Branch Mine disaster where 29 miners were killed begins Thursday in U.S. District Court in Charleston.
Court TV programs never include jury selection, and for good reason; it’s boring, that is unless you happen to be the attorneys for the prosecution and defense, who believe that the outcome of the trial will be determined in large part on who sits on that jury.
Prosecution and defense attorneys, as well as Judge Irene Berger, will already have a lot of information about the 300 prospective jurors before selection begins. Each was asked to fill out a 17-page questionnaire with 87 separate questions.
Some of the questions ask for the basics—marriage status, employment, level of education, but others are far more specific, such as whether they have any training in mining engineering or labor relations.
And here’s a question the attorneys will pay attention to: “Most coal mine operators care more about producing coal than about the safety of their miners: Agree, disagree or unsure.”
Charleston attorney Jim Lees (who is not involved in the case) is a sought-after jury selection consultant who specializes in focus groups and creating persuasion strategies. He is confident both sides will be well-prepared going into Thursday’s selection.
“They are going to have done all their research and have a picture of who is bad for them and who is more neutral,” Lees told me. He says the case could hinge on “which side does a better job of jury selection to get more of your people on the jury and less of their people.”
The process will start with voir dire, the individual questioning of potential jurors. Judge Berger has not yet specified whether she will take the lead or allow the attorneys to ask questions. Also at issue is whether the jury selection process will be conducted in open court or behind closed doors.
Some potential jurors will be struck “for cause.” For example, a person would be kept off the jury if they are related to one of the principals. Also, attorneys for the defense and prosecution will use their peremptory challenges—the defense gets ten, the prosecution six—to strike other jurors.
Lees says it’s critical that each side determine before the trial begins what kind of jurors will be more sympathetic.
“You are looking for people who fall into some category, who are better for your side because they are more susceptible to a particular argument,” Lees said. “I don’t think a case can be won by jury selection, but it can be lost.”
Blankenship is accused of falsifying coal dust samples, violating mine safety standards and defrauding financial regulators in operations at UBB. If convicted of the three charges, he could face a maximum sentence of 30 years in prison.