CHARLESTON, W.Va. — U.S. District Judge Irene Berger still has the option of a using an Allen Charge on the jury deliberating the Don Blankenship criminal trial if the panel continues to struggle with reaching a verdict.
The 12-member jury returns to the federal courthouse in Charleston Monday morning for a fourth full day of deliberations. Blankenship, 65, is charged with conspiracy and fraud in connection with the operation of the Upper Big Branch mine in Raleigh County both before and after the April 5, 2010 explosion that killed 29 miners.
The jury has deliberated approximately 16 hours. Both Judge Berger and Assistant U.S. Attorney Steve Ruby have said given the length of the trial and the evidence introduced it still could be a while before the Allen Charge option is used.
An Allen Charge is used sometimes in federal court to prevent a hung jury by urging the members of the jury in the minority to reconsider.
Judge Berger would speak directly to the jury if that option is used, MetroNews Legal Analyst Harvey Peyton said.
“(She’ll say) somebody has to decide this case sometime and if this case is retried it will be retried by men and women just like yourselves, no more conscientious, no more qualified than you are,” Peyton said.
An Allen Charge urges those in the minority to give fair consideration to the views of those in the majority, Peyton said.
The 4th Circuit Court of Appeals has a history with an Allen Charge case. It recently upheld the use of the option more than once in a trial.
“Actually just this year (the 4th Circuit) decided a drug conspiracy (case) where after a long trial with multiple counts and multiple defendants the jury announced it was deadlocked and the court twice read them an Allen Charge,” Peyton said.
The Blankenship jury sent Judge Berger a note last Thursday, after eight hours of deliberating the case, asking her how long they were to deliberate. “We cannot agree,” the note said. The judge told them to keep talking.
The longer the deliberations go it probably favors Blankenship, Peyton said.