Cohen begins voir dire: Danny Masterson Re-Trial, Day 4, morning break

We’re reporting this morning 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…

We're here a bit early today as Judge Olmedo asked the attorneys to be in place by 8:15 am. It's going to be a long day, we suspect.

Danny Masterson and his attorney Philip Cohen have both elected for lighter summer colors today.

Masterson is wearing a light grey suit with an even lighter colored tie.

Cohen is wearing a seersucker suit with brown vest and pink tie.

Judge Olmedo is at the bench.

Judge Olmedo asks the defense team if there's a lead attorney, but then settles on "co-counsel" as she's told there is no lead between Cohen and Holley.

The judge shares with the group that she's never seen so many sworn federal agents show up for jury duty.

The two sides, and the judge, are comparing notes about prospective jurors that they are stipulating should be excused. It's a lengthy process.

Each side will have 20 peremptory objections to remove jurors, and additional ones for the alternates.

We have 107 prospective jurors left at this point, the judge says.

These have been excused: 97, 113, 114, 117, 122, 131, 132, 133, 134, 135, 141, 142, 145, 147, 149, 150, 158, 160, 163, 165, 170, 172, 173, 174, 175, 179, 184, 185, 189, 190, 194, 197, 202, 203, 205, 207, 212, 213, 217, 204, 126, 137, 148

A man in the gallery had earlier introduced himself as one of my readers. I asked him if he was with one side or the other, because I suspected he was an employee. He said he wasn't, and that he was simply a "member of the public." Now, Shawn Holley came up to him and spoke to him and sent him out of the courtroom. Well.

The prospective jurors file in and take every seat in the courtroom, and still 12 are stuck without a place to sit.

More chairs are brought in and everyone has a place.

Judge Olmedo says she wants to go over a few things of law. What the attorneys say is not evidence -- opening statements, closing statements, etc. Evidence comes in through testimony by witnesses.

Now she talks to them about circumstantial evidence, and that it's up to jurors to decide what evidence matters.

The testimony of a single witness is sufficient to prove any piece of evidence, if you believe that witness.

She now explains the Fifth Amendment and the right to remain silent.

The jury decides the facts, but the judge determines punishment. She explains that they would not consider possible punishment.

Now she brings up jury nullification. The idea of voting one's conscience rather than following the law, and she calls it jury misconduct. She explains that they have to follow the law even if they disagree with it.

So now she's turning it over to the lawyers. Cohen is up first.

He moves to the podium.

Cohen: I am a criminal defense lawyer, my friend and co-counsel Ms. Holley, we represent Danny Masterson, the accused. Introduces Mueller and Anson. I'm going to be asking you some questions.

The judge could not have said it better: Twenty of you will be lucky enough to get on this jury. The rest of you will go home. For the people who are involved in this system, (emphasizes Masterson), this is among the most important things going on in our lives. This system cannot work without a jury of 12 people who not only say they cannot be fair, but know they can be fair. So I'm going to ask questions, I don't mean to embarrass or waste time, but this is a very sensitive case and the entire goal is to get a jury that can be fair.

If at any point, something comes into your mind, raise your hand. You hate me? Let me know. You hate all defense lawyers? Let me know.

I do want to make one point clear. I believe people go through life based on our upbringing, with a pair of colored glasses on. And we see the world through those glasses. As best as we try to be fair, that impacts the view we have. My question is going to be, given the delicate subject matters, knowing yourselves, is this maybe not the right case for you? Do you promise me that you will fully and accurately the questions that both sides have? (He gets a couple of emphatic yesses from the crowd.)

A little more on the case: This is a rape case involves three allegations of date rape, stemming from 20 years ago plus. You are going to hear from three women, accusers, who are going to testify under oath that they believe Danny Masterson raped them. You may also hear from two other women, not named victims, who also have allegations from 20 plus years ago. You are also going to hear about allegations of being drugged....

Objection by Mueller. Sustained, don't go into specifics.

...and you may also hear about a firearm. Cohen now says that they will hear that Masterson is a lifelong Scientologist. Still is.

My first question is this, the fact that Mr. Masterson has been charged, does anyone believe, he really must have done something. DA wouldn't be here. Two months of trial wouldn't be here. I figure he must have done something. Anyone think that? No hands. I did read your questionnaire answers. Juror 89: On your questionnaire you indicated you had been a fan of Mr. Masterson on a TV show. (No.)

Cohen says he may have got his numbers mixed up. It's Juror 92.

Juror 92, you indicated you were a fan of Mr. Masterson on a TV show.

92: Yeah, his character was my favorite character.

The followup response, you said you had been a fan until you read the allegations in this case.

92: Yeah.

My question is, when you read those allegations, I liked him on that show now I don't.

92: No, it was more it was disheartening to hear the alelgations, but just because something was alleged doesn't mean that it happened. A lot of things come out about celebrities, oh this was another one of those disheartening things.

Was the thought, how dare people say this about him? Or was the thought, oh man, another person alleged to have done something and if there is an allegetion must be something to it.

92: Yes, but I can't say whether or not it happened. It was just disappointing to hear. But I don't know him and I don't know anything but the charges against him.

Do you think that someone may make an allegation that they were the victim of a crime, and for whatever reason or motivation, the person not be truthful?

92: Yes that's possible.

Cohen now asks the larger group, do they have that thought if there are allegations, they believe it must be true. Juror 8, what do you think?

8: No, since I don't know, I believe, without evidence I can't determine if that person is lying. I'd have to listen to the case. I think in the heat of the moment people make poor decisions that could harm another person.

You're saying from an accuser's standpoint, they could assume something happened, and that that they think it happened but that doesn't necesserily mean it happened?

8: Correct.

Cohen cites a woman going through reporting a sexual assault. She wouldn't do that unless she believes she was telling the truth, do you believe that?

8: Evidence is very important, and without evidence we can't judge. It's a personal decision if you want to go through that process.

Thank you. does anybody disagree with the takeaway from Juror 8? And I know that some of the people have been involved with sexual assault on either side. That if any woman goes through the steps, that she's probably telling the truth. 209?

209: No, I don't think so, because anyone can accuse anyone else of anything. And without proof there's really not a way to know if that person is guilty or not guilty.

I appreciate that. Two concepts, presumption of innocence. Anyone sitting in this chair gets that. Does anyone have a problem with that concept? Juror 2.

2: Doesn't know what to say about that.

Do you think he's guilty of doing something?

2: I don't know, I don't know the evidence.

What if you had to vote right now?

2: I would have to say I don't know.

Would anyone be able to vote not guilty right now? (Most raise their hands.) Juror 2, the law says the person is sitting in this chair is presumed innocent unless there is evidence that proves guilty beyond a reasonable doubt. And until that time comes, no matter how much you might hate Scientology or Masterson's shows. Juror 207, what do you think of this concept of presumption of innocence?

207: Believe in it 100 percent.

What is proof beyond a reasonable doubt? You will get a jury instruction on it, and it's a decision that you will make that is among the most important in your life. I look at evidence, and I look at this case, and I think of a giant glass beaker, and at the top of that beaker is a red line, which represents proof beyond a reasonable doubt. And right now the beaker is empty. Then they will call witnesses, and that evidence will go in the beaker, and then Ms. Holley and I may cross-examine those witnesses and then you may think some of that evidence leaves the beaker. But only when it reaches that red line does it reach beyond a reasonable doubt. Does anyone think being a juror is an easy job? It's not an easy job. It's incredibly difficult. My question for you, Juror 60, regardless of what you think of the players, the subject matter, law says you must presume that Masterson is not guilty unless the evidence raises to beyond a reasonable doubt. Can you do that?

60: I'm not sure.

What aren't you sure about? What if that evidence doesn't rise to that level, even if you don't like Scientology or Mr. Masterson or the defense attorneys. Can you still vote not guilty if that evidence isn't there?

60: Yes.

Juror 52, you were in law enforcement. You have experience in this

52: Yes I have.

What do you think about this concept?

52: I believe it.

You were a patrolman.

52: Highway patrol. But later with public defender.

So you've seen it from both sides. Fantastic. Do you ever think that someone who is arrested and brought to trial is wrongfully accused?

52: Yes.

And that's based on your experience?

52: Yes.

As Mr. Masterson's attorney, should I have any concern that you are coming initially from law enforcement, that that may have some impact on how you view the testimony accuser, named victims.

52: I don't think it reflects my decisions at all. I've worked both sides.

Do you think that people may come in and testify under oath and for whatever reason not be telling the truth?

52: It's possible, yes.

Anything about that which is uncomfortable for you?

52: What do you mean?

Mr. Mueller and Anson will tell you at the end that the evidence shows guilt beyond a reasonable doubt. I will argue something else. Should I have any concern about making that argument to you?

52: No.

Juror 58, you worked for the DA's office? (Long Beach) Do you believe that people may be brought to trial by LA DA's office that are not guilty? (Obj, sustained) Do you think that if someone has been charged means they're guilty?

58: No.

If someone testifies under oath will they be speakign the truth?

58: I think some people are and some aren't.

Do you think I should have any concern about you being a juror on this case?

58: No.

Juror 28, you clerked for US district court judge, given your experience, do you have any issue with a defense lawyer standing up here and taking the position that testifying victims in a crime were not credible?

28: No I don't have an issue with that.

Do you have any disagreement with the statement that people are charged all the time with crimes they didn't commit (Obj, sustained) Do you thnk right now Mr. Masterson is guilty?

28: Right now he's not guilty.

Juror 210, do you know anything about the primacy theory. (Addressing the former Asst AG of Illinois, married to a psychologist). That people tend to believe what they hear first about something. This is the first time in this trial I get to go first. DA goes first on opeining, on putting on witnesses, on closing arguments. The DA goes first on closing (primacy) and then last (recency). So my question is, knowing that you're going to hear about the facts of this case from the DA first, and it's an ugly story, and you'll their witnesses first, and then their closing first and just before you go into the jury box, my question is, are you able to listen to the DA's opening keeping in mind we haven't heard a word from Cohen or Holley and we realyl need to hear that?

210: No problem.

Juror 192 what do you think?

192: I agree with that.

Juror 120, what do you think? Is that an issue I should be worried about with you?

120: No.

Anyone? is there anyone who thinks, when I hear that's story, that's all I need to hear?

136: You need to hear from all sides.

OK. Juror 138?

138: No. I will not make a decision based only on what I heard first. (He now asks about the beaker analogy.) From my perspective there's a white line that is even higher, and that's "no doubt whatsoever." I'm a scientist. Your red line has a degree of tolerance. Some people maybe need a little less evidence to reach that line. There's a range there. That's what came to my mind when you were talking about that.

Number one, brilliant. Number two, we're not allowed at this point to talk about what the jury instruction means. To the bigger point, the court is going to give all of you jury instructions. Those are the rules of this particualr proceeding. And they are very differnet from the rules we deal with in every day life. My question is, regardless of what you may need, if the court gives you a jury instruction, are you able to adopt those instuctions, even if you might think differently?

138: Yes.

Basically, are you able to follow the law.

138: I can follow instructions, and understand the difference between the court law and a scientific practice.

Juror 136, you said you need to hear from both sides.

136: All sides.

Cohen brings up the 5th amendment. Explains the idea that defendant can remain silent. And that the defense doesn't have to do a thing if the proseuction doesn't meet its burden. Wheth
Ter you agree with it or disagree with it, you can follow that law that you cannot consider if the deense puts on a case or not.

136: Yes, what I meant was both sides should have the opportunity to present evidence.

Trust me, you will hear from me during the trial. But are you OK with the concept, that the defense is not under the burden to do anything.

136: Yes.

Asks another juror (I missed the number) Do you agree? She does. Cohen asks if anyone else disagrees with that concept. No one raises a hand.

Now it's time for a break.

---

Thank you for reading today’s story here at Substack. For the full picture of what’s happening today in the world of Scientology, please join the conversation at tonyortega.org, where we’ve been reporting daily on David Miscavige’s cabal since 2012. There you’ll find additional stories, and our popular regular daily features:

Source Code: Actual things founder L. Ron Hubbard said on this date in history

Avast, Ye Mateys: Snapshots from Scientology’s years at sea

Overheard in the Freezone: Indie Hubbardism, one thought at a time

Past is Prologue: From this week in history at alt.religion.scientology

Random Howdy: Your daily dose of the Captain

Here’s the link to today’s post at tonyortega.org

And whatever you do, subscribe to this Substack so you get our breaking stories and daily features right to your email inbox every morning.

Paid subscribers get access to two special podcast series every week…

Up the Bridge: A weekly journey through Scientology’s actual “technology”

Group Therapy: Our round table of rowdy regulars on the week’s news