U.S. District Court Judge Irene Berger has taken the unusual, but not unheard of step of issuing an Allen charge to the jury in the Don Blankenship trial. The new instruction came at midmorning on the seventh full day of deliberations after the jury said it was deadlocked.
The Allen charge is named for an 1896 U.S. Supreme Court decision (Allen v. United States) where a judge gives a mildly coercive instruction to a deadlocked jury to continue deliberations to try to reach a verdict.
Judge Berger asked the eight women and four men to take as much time as they needed, re-examine their positions and see if they could return a verdict without giving up their “personal scruples.”
The judge also advised the jury that it would be acceptable to reach a partial decision—guilt or innocence on some of the counts, but deadlocked on others. Blankenship faces three conspiracy and fraud counts related to Massey’s operation of the Upper Big Branch Mine where 29 miners died in a 2010 explosion.
Metronews trial analyst Harvey Peyton says the Allen charge is an acknowledgment that the jury is truly deadlocked. “Whether this is a permanent impasse is a determination the judge has to make and the Allen charge is a tool to help in making that decision.”
The question now is how long Judge Berger will keep jurors at work before it comes close to violating the defendant’s Sixth Amendment right to an impartial jury. If she presses too hard and Blankenship is convicted, an appeals court could determine the jury was coerced.
The United States Court of Appeals 4th Circuit (which covers West Virginia) has historically defaulted to the local judge’s discretion on use of the Allen charge. In U.S. v. Jorge Peter Cornell, the appeals court upheld the conviction of the defendant even though the Allen charge was issued twice.
“Our circuit has never adopted a flat ban on multiple Allen charges and we decline to do so now,” the court said, adding the district court is in the best position to gauge whether a jury is deadlocked or able to proceed with deliberations.
However, Peyton says the judge is running out of options. “How far can a judge go?—not too much farther,” Peyton said. The Allen charge is the last straw and it lets the jury off the hook for failure to agree; they have done all they are capable of doing in good conscience.”
The Allen charge is also sometimes called the “dynamite” or “hammer” charge. The figurative language implies an abrupt wake-up call to the jury to do its job. We should know soon whether it carries enough force in this case to break loose a deadlocked jury.