Lawyers for Don Blankenship want the individual questioning of prospective jurors for the former Massey Energy Co. CEO's trial to take place behind closed doors.
Defense attorneys outlined their proposal for individual “voir dire” of jurors in a new court filing submitted early Tuesday evening to U.S. District Judge Irene Berger. They say lawyers in the case should be able to question potential jurors “in camera,” or in private, to ensure that Blankenship gets a fair trial.
“This case is not only highly publicized, there is extensive prejudgment and bias against Mr. Blankenship,” the defense lawyers said. “In a case like this one, individual, counsel-led, in camera voir dire, combined with additional preemptory strikes, are necessary to protect the defendant's constitutional right to a fair trial by an impartial jury.”
Blankenship's lawyers said they need to be able to ask individual jurors follow-up questions based on the responses jurors provided to a written questionnaire that Berger had the court clerk send out last month to a pool of 300 prospective jurors. Berger made public the questionnaire, but has not released juror responses.
Blankenship faces charges that he conspired to violate mine safety standards before the Upper Big Branch Mine disaster occurred and, after the explosion, lied to securities regulators and investors about Massey safety policies in an effort to stop stock prices from plummeting amid widespread news reports about problems at the company's mines.
His trial is scheduled to start on Oct. 1. Additional details about the jury selection process have not yet been made public by the court, except that the questionnaire indicated that potential jurors would be called to the courthouse at a later date for verbal questioning.
In their new court filing, defense lawyers note that the potential jurors were told that their written questionnaire responses “will be kept confidential” and that information they provided “will be given only to the judge, the clerk's office, and the parties, and will be used solely for the purpose of selecting a jury in this case.”
Blankenship's lawyers argued that individual, closed-door questioning of potential jurors “insulates the jurors from one another's prejudicial comments.” They said some potential jurors “will express strong opinions about Mr. Blankenship in this case” and “should not be permitted to taint other prospective jurors.”
“Individual, in camera voir dire also is more effective, because jurors are far more likely to disclose their actual opinions and concerns in the more private setting,” the defense lawyers told Berger.
Under a 1984 ruling by the U.S. Supreme Court, the guarantee of open public proceedings in criminal trials includes proceedings for the voir dire examination of potential jurors. The rights of the news media and the public for open jury selection are not absolute, the court said in that ruling.
Closed jury selection proceedings should be rare, the court said, and only for cause that is shown to outweigh the value of openness. Courts must make findings that explain why closure is essential to preserve those higher values, consider alternatives to closure, and narrowly tailor any closure to serve those higher interests.
In the Blankenship case, Berger has not issued any public rulings that explain why the jury questionnaire responses should remain confidential.
U.S. Attorney Booth Goodwin's office, in a separate court filing about jury selection, did not take a position on whether individual questioning of jurors should occur behind closed doors or not.
Berger has not yet ruled on how the in-person questioning will occur.
On Wednesday, the judge did issue an order that approved issuing a subpoena to the U.S. Mine Safety and Health Administration for a variety of records about Blankenship and about the Upper Big Branch Mine, including documents concerning an in-person meeting and follow-up telephone call between Blankenship and MSHA chief Joe Main in the two months prior to the April 2010 explosion that killed 29 miners at the operation. MSHA has refused to answer questions about the meeting and phone call.
Reach Ken Ward Jr. at firstname.lastname@example.org, 304-348-1702 or follow @kenwardjr on Twitter.