CHARLESTON, W.Va. — The 12-member jury deliberating the Don Blankenship criminal case is now under an Allen Charge after telling U.S. District Judge Irene Berger Tuesday morning that it still couldn’t make a decision.
The jury handed the judge a note at just after 11a.m. telling her they were still deadlocked and asked what they should do next. It marked the second time the panel has told Judge Berger it could not agree on the three criminal counts against the former Massey Energy CEO. The first note came after approximately eight hours of deliberations. Judge Berger sent them back to work then.
The judge decided to use an Allen Charge after Tuesday’s note where she urged the eight women and four men to consider the opinions of others and to make a decision on the case if at all possible.
Blankenship, 65, is charged with conspiracy and fraud in connection with the operation of the Upper Big Branch mine in Raleigh County. He allegedly conspired to break mine safety laws there because of the mine’s profits and then allegedly lied about the safety record to shareholders and federal regulators in the days after the April 2010 explosion at UBB that killed 29 miners.
The Allen Charge is an urging of the jury, MetroNews Legal Analyst Harvey Peyton said.
“You have a serious duty to resolve this case if at all possible. You have to listen to the views and opinions of your fellow jurors and if you find yourself in a minority you need to consider whether your doubt is a reasonable one or your position is reasonable,” Peyton said.
Attorneys for Blankenship objected to the Allen Charge and asked the judge for a fourth time to declare a mistrial. Judge Berger refused.
Along with the Allen Charge the judge reminded the jury it could reach a partial verdict in the case. Blankenship faces three charges.
An Allen Charge is “mildly coercive,” Peyton said.
“The judge has to be careful not to cross the line. The defendant is entitled to a fair trial and you can’t coerce a result. I think they are more likely to arrive at a verdict after receiving a charge from the court of that nature,” Peyton said.
Jury deliberations resumed Tuesday afternoon.