CHARLESTON, W.Va. — Less than five hours after U.S. District Judge Irene Berger gave the Don Blankenship jury the Allen Charge Tuesday, the panel left the federal courthouse in Charleston the same as it has before, with no verdict.
The jury sent Berger a note Tuesday morning saying it was deadlocked and asked for further instruction. She issued the Allen Charge, an option used in federal court urging jury members to examine their own positions and the positions of other jurors and make a decision on the case if at all possible.
Some members of the jury looked frustrated to Shirley Whitt at the end of the day Tuesday. Whitt’s brother, Boone Payne, was one of the 29 men killed at the Upper Big Branch mine when it exploded on April 5, 2010.
“I saw some frustration on their faces for the first time,” Whitt told MetroNews Tuesday evening. “Now that could mean two things; they’re either frustrated because she gave them the Allen Charge and didn’t let them go or they’re trying to work it out and are frustrated because they are not getting the conclusion they want.”
Blankenship, 65, the former Massey Energy CEO, is charged with three federal criminal counts including conspiracy and fraud in connection with the operation of UBB.
Berger did instruct the jury Tuesday that it could reach a split decision. Agreeing on some of the charges but not on others. Dr. Judy Jones Petersen, whose brother Dean Jones died at UBB, was glad the judge instructed the jury that way.
“They are not locked in to any judgment here, they can look at these separately, they can rule separately,” she said. “I think it makes it a lot easier for them to come to a decision.”
The jury has now completed seven full days of deliberations. That’s still not a lot of time when compared to more than five weeks of testimony, Whitt said.
“I don’t think you can spend that much time going through the evidence and have 550 exhibits, if you are taking this seriously, without you sitting down and saying, ‘We’ve got to look at this. We’ve got to look at that,'” she said.
Tuesday marked two months since the trial began.