7 WOMEN, 5 MEN ON JURY : Danny Masterson Re-Trial, Day 4, end of day

We’re reporting this afternoon from Judge Charlaine Olmedo’s courtroom, where we’re acting as pool reporter during the jury selection phase of Danny Masterson’s retrial.

What follows is the same report we sent out to reporters who had asked to receive a copy…

On the record.

Cohen: I really do like Mr. Mueller and Ms. Anson. That being said, the hypothetical being given about the baseballs and broken window. The whole thing was presented as whether that was corroboration, is not for cause.

Judge Olmedo: The Court did sustain some objections and overruled some. When we talk about for cause, using the hypothetical is to see if jurors can follow the law. I felt that hypothetical is asking jurors would they need more corroboration. I understand your concern about it. (Judge Olmedo admonishes Mueller that he needs to phrase his hypotheticals so they are clearer.)

Jurors come back in. Mueller resumes.

Juror 115, computer engineering? (No, support.) In doing that, are you involved in any calculations? (No.) I wanted to go on to talk about, Juror 81, what type of evidence would you necessarily need in terms of forensic evidence, to make a determination of proving a case beyond a reasonable doubt?

115: Maybe like DNA samples?

Let's talk about DNA. Do you think that in these cases that DNA is always recovered?

115: No.

Juror 94, do you believe that in these cases you always find DNA?

94: No.

Can you imagine where an assault takes place but there's no evidence of DNA? Juror 92?

92: I know sometimes DNA is not always requested by police officers, or a victim isn't told they need to do that, I've heard of those cases. Or other cases where the person doesn't know that an assault occurred?

Juror 121, if there was a charge of sexual assault but no DNA, would that create a problem for you?

121: No.

Juror 120, you agree? (Yes.) Anyone further back who thinks that if they don't see evidence of DNA in this case they can't make a decision in this case? Number 139.

139: DNA would help, especially in a case from that long ago. Any hard evidence would help.

When you say any hard evidence wouuld help. What is hard evidence.

139: Not just someone saying that happened.

If you look at the evidence, the testimony of the victims, and you say you believe what they're telling me beyond a reasonable doubt. If you don't have additional hard evidence would you not be able to find the defendant guilty?

139: I would need that evidence.

Even if you believed them?

139: I would need the evidence to believe them.

Juror 138?

138: I'm trying to understand what my role is here. I'm not here to judge how the evidence was collected, who collected the evidence, I'm here to evaluate the evidence collected and whether I wouuld find it factual, whether I believe it, and whether there's enough of it.

Thank you for that. Is there anyone who disagrees with Juror 138?

181: I am not disagreeing, but I'd like to know what am I supposed to focus on? And Judge Olmedo told us she would focus on what we should do and I would follow the procedure.

What we ask the jurors to focus on is all the evidence that gets presented on the stand. That evidence is coming in from witnesses who come in here and raise their hand and swear to tell the truth. Besides that there might be photographs, other evidence. All we ask of any of you is that you consider all of that evidence that comes in and decide whether we have proven the case. If not, then you'll vote guilty. If we have you will vote guilty. Can you do that?

181: Yes.

Again, it's the evidence we bring in, that's what we want you to consider. Juror 127?

127: I was thinking about the analogy before the break, about the windows. I wanted to ask and see if the analogy was shortened for brevity, so to me that the evidence you presented broken with baseballs, could logically suggest that one person committed the acts. But is the point of that that the juror should consider the number of charges that have been brought. That seems contradictory to what I've been told about juries.

Mueller: The point of that was, you have three separate victims, three individuals with three separate windows. You point is will you consider it corroboration of the other crimes. (Having a hard time following.) (Obj, sustained).

Judge Olmedo: The point of all this voir dire, forget about the hypothetical, whatever I instruct you, will you follow the law as I instruct you. Or will you say I need more. We just want to know, on both sides, will you follow the law.

Mueller: Juror 168, we talked a little about DNA. I wanted to ask you about eyewitness testimony in a case like this. In a case like this would you expect to see an eyewitness.

168: Reflecting on this morning's session, I didn't write it on the sheet but I had a girlfriend who committed suicide, about 30 years ago. Her family drugged her, abused her. They put out the word that I killed her. There were no witnesses but they treated me like I did.

Mueller tries to get him back on the subject, unsuccessfully. Asks another juror, 210, if I told you a single witness is enough to establish a fact, and you believed that juror, would you be ok with that notion? One single witness, is that enough to prove a fact?

210: If they give me enough information, and it was just that person and I believed that person, I wouldn't need more.

Juror 201?

201: I agree.

Juror 123, how do you feel about that? If you believe that victim beyond a reasonable doubt, you'd be ok with that?

123: Yes.

Is there anyone who is not ok with that concept? I see no hands. (Olmedo: You have five minutes.) So for all of you here, I have one big general question. Is there anyone sitting her now who is thinking, you know what, I wish that one of the attorneys had called on me so I could ask one particular question? (No hands.)

139: You're the People accusing the defendant.

We're the prosecutors, we represent the people of the state of California. We have filed the case, we have brought the charges and it's our burden to prove that this defendant committed those charges.

139: If one of the alleged victims wanted to charge him herself, do they have to go through you?

Judge Olmedo: We're not going to answer that question because that gets into another side of law. (She asks the lawyers to the sidebar.)

Judge is now going to read some numbers of jurors who are excused: 2, 151, 196, 61, 60, 139, 12, 168.

Juror 28, where are you, move to seat 2.

At this point:

1 in 1
28 in 2
5 in 3
8 in 4
9 in 5
10 in 6
30 in 7
13 in 8
15 in 9
20 in 10
23 in 11
31 in 12

People up first with peremptories. Accepts panel.
Defense removes 28 (34 takes seat 2)
People accept panel
Defense removes 34 (11 takes seat 2)
People accept panel
Defense removes 31 (52 takes seat 12)
People accept panel
Defense removes 52 (39 takes seat 12)
People remove 39 (41 takes seat 12)
Defense accepts panel
People accept panel

The jury:

1 in 1
11 in 2
5 in 3
8 in 4
9 in 5
10 in 6
30 in 7
13 in 8
15 in 9
20 in 10
23 in 11
41 in 12

Twelve are asked to stand, take oath.

7 women, 5 men

ALTERNATES

70 in 13
46 in 14
49 in 15
81 in 16
72 in 17
63 in 18
94 in 19
65 in 20

People remove 45 (66 takes seat 13)
Defense removes 58 (67 takes 16)
People remove 66 (70 takes 13)
Defense removes 59 (72 takes 17)
People accept alternates
Defense removes 67 (79 takes 16)
People remove 79 (81 takes 16)
Defense removes 64 (89 takes 19)
People remove 89 (92 takes 19)
Defense removes 92 (93 takes 19)
People remove 93 (94 takes 19)
Defense accepts alternates
People accept alternates

Eight alternates stand and take oath

4 women, 4 men

She talks to them about some court logistics. Asks them back on Monday morning. They file out.

We are in recess. See you Monday for opening statements.

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