The trial of Donald Blankenship has been all over the media. I’ve written about it here and here and here and here. Today, the jury reached its verdict.
It found Mr. Blankenship guilty on one charge of conspiracy to avoid certain mine-safety laws. This is a misdemeanor only. It acquitted him on two felony counts of false SEC filings. Although the outcome is a conviction, it was on the lesser of the charges and the possible sentence is low. All in all, a victory for the defense, I’d say.
But the timeline of the verdict is telling.
The jury started its deliberations on November 17. On November 19, the jury reported that it could not reach a verdict. The judge told the jury to keep deliberating. The jury kept going for about 5 more days (presumably , the jury did not meet on Thanksgiving and the day after) and told the judge it was “deadlocked.”
That means the jurors deliberated for about 56 hours and couldn’t reach a decision. That’s not enough to show that a mistrial should be granted?
Nope.
On Tuesday, December 1, the court gave the jury what is known as an Allen charge. An Allen charge is sometimes called a “dynamite charge” because it “blasts” the jury to a verdict. Basically, it strongly — very strongly — encourages deadlocked jurors to reconsider their position.
Here’s a sample Allen charge from the Fifth Circuit pattern instructions:
I am going to ask that you continue your deliberations in an effort to agree upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so. This is an important case. If you should fail to agree on a verdict, the case is left open and may be tried again.
Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced. Those of you who believe that the government has proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the evidence is really convincing enough, given that other members of the jury are not convinced. And those of you who believe that the government has not proved the defendant guilty beyond a reasonable doubt should stop and ask yourselves if the doubt you have is a reasonable one, given that other members of the jury do not share your doubt.
Remember at all times that no juror is expected to yield a conscientious opinion he or she may have as to the weight or effect of the evidence. But remember also that, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so without surrendering your conscientious opinion. You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt, the accused should have your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary. I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the instructions I have previously given to you.
Think about how you would react this instruction if you were a juror. The judge is basically saying, come to a verdict. No matter what. Change your mind if you have to and go along with the majority.
That’s what happened here. Two days after the judge gave the Allen charge, the jury reached a verdict. I’m sure there will be plenty of commentary about it, but it looks to me like the jury split the baby. It found him guilty on the substantive charge and not guilty on the SEC charge.
Juries aren’t supposed to horse-trade back there. They are supposed to come to a fair verdict on each count. But as the Blankenship trial shows, defendants are hard-pressed ever to get a hung jury. It takes a pretty strong-willed juror to resist the coercive effect of a federal court judge’s Allen charge — an instruction given while the judge peers down on the jury from on high, wearing the black-robed trappings of authority — and stick to a “not guilty” verdict.
Allen charges are inherently coercive. They almost always result in a guilty verdict (calling all social scientists: we need a study!). Hung juries should play an important role in our justice system. They show the government that it did not prove its case. Hung juries should be in the realm of the possible. With Allen charges, they hardly are.
Congratulations (and condolences, I suppose) to the Blankenship defense team. I’m sure they have a few issues on appeal up their sleeve to try to reverse the conspiracy charge too.