Cohen finishes defense voir dire: Danny Masterson Re-Trial, Day 4, lunch 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…

They excuse Juror 35 for falling asleep.

Cohen: "I've never had a cup of coffee"

Judge Olmedo: "Never?"

Cohen: "Never."

Judge Olmedo says she can't imagine what he'd be like if he drank it then. (He's a very energetic person.)

Jurors come back in. Cohen continues.

Juror 12, you had your hand up.

12: Asking about the defense doesn't have to say anything. Can you explain that?

Sure. The 5th Amendment gives the right to remain silent, and the prosecution has the burden to prove. So the defense could sit here and do nothing, but if the government hasn't proved their case, you have to vote not guilty, because they didn't prove their case. Does that make sense?

12: I understand what you're saying but it doesn't make sense. I know the defendant has to speak, but I want to hear your side from you.

Cohen explains that if they had to vote right now it would be not guilty because he's presumed innocent. Obviously, we will give an opening statement, you will hear from us. But the point is if the govt doesn't prove its case, you have to vote not guilty even if we say nothing.

12: (She disagrees.) You need to speak.

I promise that I am going to speak. But you have to promise me if the govt doesn't prove its case, I could be the worst attorney in the world

12: I agree with you there. (Laughter in the courtroom.)

Would you have to hear from Mr. Masterson?

12: I don't need to hear from him. I need to hear from you, and you have to convince me.

No, no, no. This is how it's supposed to work in concept.

12: In fantasy.

I agree with you, I think most people think the defense attorney has to convince us of this or that. But that law says the defense has to say nothing. It's the government  who needs to fill the beaker up with evidence. I'm going to ask questions, Mr. Holley is going to ask questions, but it's not our obligation to persuade the jury that this person is not guilty. It's the government's burden to prove guilt. Let me ask you this, you hear me in opening, closing, and you go into the jury room, and you think, I think he probably did it but the govt did not prove its case?

12: Not guilty.

Whose burden is it?

12: The DA's

And you're OK with that?

12: Yes.

What I'm trying to figure out is, is this the right case for you. Do you have some concern given what you've heard so far, given the charges, that this is not the case for you?

12: Not at all, we don't know anything yet.

Juror 13, is this the right case for you?

13: I don't have experience on a jury, but I think it's the right case, I could hear from both sides. I want to hear the evidence and the proof. You might be convincing, but what is the evidence.

Does the subject matter give you any concern? It's a very emotional issue.

13: No, because there are a lot of misconceptions out there, different points of view. Social media. But if you want to be on the side of the law, you have to listen to both sides. I think it's very important for us to be fair.

What about this jury instruction that you cannot consider emotion, hatred, sympathy, any problem. And on a case like this, three women with very emotional testimony. Any issue with you putting those emotions aside and weighing the evidence.

13: It's the women being involved, but it could be men. We need to hear the evidence from both sides and be impartial.

Subject matter, delicate, emotional. Anybody have a feeling that this is not the right case for them? Juror 34?

34: No, I don't really know anything about it.

Well, you know the subject matter.

34: I don't know the specifics.

Juror 45, park ranger? (Yes) And you have siblings in law enforcement? (Brother and sister). So the concept of someone being charged and not guilty, a possibility?

45: Very much so.

And if you had to vote right now?

45: Not guilty.

There are going to be police officers testifying in this case, is there anything about you being in l e that we should know about regarding them?

45: No sir.

There are some who gave responses about sexual offenses. Juror 24? You had some close experience with sexual assault? (Yes) And what can you tell me about whether this case is the right case for you to be a juror with all of the hard work that comes with it.

24: I feel like it's pretty much a part of my everyday life and the people I'm around, and I can deal with it.

Should I have any concern that given your experience that that will have some impact on how you view me and Ms Holley asking questions of these women?

24: No.

Should I have any concerns about you being on the jury?

24: No.; I always listen to both sides.

Juror 1, retired middle school teacher. Were there different things you looked for when children were credible or not?

1: Difficult in middle school.

Because they're all lying?

1: Many of them have the potential to lie. As a teacher, I would listen to both sides and if there's not the evidence there, you give a talking to, a suggestion for how to resolve, and not give a punishment unless there was overwhelming evidence.

Was consistency important? (Absolutely) If someone gave different answers to different people?

1: Yes, some children would give different reports.

How about trying to stay out of trouble?

1: Pretty typical of middle school behavior.

Any issue if the defense calls no witnesses?

1: No issues with me. I understand the law.

Any concerns I should have with you being on the jury?

1: No

Juror 60, you indicated you would not feel comfortable listening to a sex case.

60: Yes.

Can you tell me about that?

60: Only because of my father and my daughter? (Unclear). After thinking about it, I would have to be open minded.

It's difficult to ask people questions about things they feel strongly about. I always have a concern, is anyone of the belief that it is the job of the prosecution to get to the truth, and it's the job of the defense just to win? Anyone have that belief? At the end, there's going to be a closing argument, my concern is there's an impression the DA comes with more credibility. Juror 181?

181: I have no experience, but I am a nurse. In the hospital I was responsible for helping the doctors, and I don't know anything about what's going on, but all I know is what you have said about them having to prove their case. I think that's important. Someone's liberty or incarceration. I think that's so important. And I think not everyone's good and not everyone's bad? And just because someone is accused of something, we need to really listen, I guess I'm from right over the bridge and I never had the opportunity to sit and listen and be part of this process. (Now she tells an anecdote about something she talked about with a student, and when are they going to stop her, for goodness sake.) Now she's going on about a jury of one's peers.

Cohen finally interrupts. This could be your son, he says. (Obj, sustained). Juror 61, on question 14 (sex cases) you indicated "I'm not sure if I could be fair but I will try."

14: Now, based on what you've said, I could be fair.

Is there something about the subject matter?

14: It bothers me a little because I have two daughters

No one knows how a trial will affect them until they observe it. Should I have concern about the way these women testifying will affect you?

14: Yes, I am very sensitive.

Judge Olmedo interrupts and points out based on the last two jurors, they cannot allow bias to affect them toward any sides. And then, it is improper for any juror to go into the box thinking what if my son or daughter was a victim or accused. Does everyone understand? (Yes) And again, punishment is not your concern.

Cohen: Juror 61, is it fair to say this might not be the best case for you?

61: Yes.

I appreciate that. Juror 79, on question 14 you said it would be difficult to keep an open mind.

79: I said that because I have never served on a jury. But I would have to be open minded.

Would it be difficult for you?

79: No.

You also said only peace officers should be able to carry guns?

79: I feel that way, with the way things are right now with our schools...

If you hear evidence of a registered gun, will that be difficult for you?

79: No.

Any reason I should be concerned about you being on the jury?

79: No.

Juror 83, to that same question 14, you indicated you would try to do your best under the circumstances.

83: Yes, I wasn't quite sure. But going forward, understanding the process, I would try to keep an open mind.

Why initially did you feel that you would have to try? Some concern about this subject matter?

83: I haven't had a situation where I've had to deal with it, but it's sensitive matters.

Should I have concern about you hearing from the three accusers in this case, and it's going to be emotional and explicit in some ways?

83: I would do my best to be fair and hear the evidence.

Juror 120, you work with victims of sexual assault? (At times.) Do you think that a complaining accuser may not be truthful?

120: Yes, that could be.

Anything about this subject that is difficult for you?

120: I don't think I'd have a difficulty in hearing both sides.

Juror 64, I believe you said you would have problems with gun evidence? (No.) Oh, perfect. Does anyone have strong feelings regarding the "MeToo" movement. Yes, Juror 139?

139: I feel like I'm against it in a way, to accuse someone that is innocent. Yeah, I'm not for it.

Does anyone else agree with Juror 139 regarding having feelings about MeToo? It's been in the news a lot. Juror 107?

107: As a movement it might have value, but that's more a social thing and I don't think it has relevance in a courtroom where we're just trying to follow the law.

OK, and you're going to be given jury instructions about the law, is there anyone believes that their feelings about the MeToo movement would be stronger than following the law? 107 can you follow the law?

107: Yes

139?

139: I have a bias against the accused. I would have a hard time seeing him as not guilty.

Anybody feel the same way about MeToo but on the other side, that it was very much needed, and the mantra is, "Believe her." Any one of that belief, that opinion.

196: I am. I do generally agree with that principle, but I could also be fair and impartial.

Anyone else? 187?

187: Similar to what this juror said (196), I would believe them, but I wouuld follow the jury instructions.

Anyone else? Juror 143?

143: I would want to hear the victim and what they said about what happened to them.

The other topic I want to touch on briefly is Scientology. Is there anybody who is concerned that based on your feelings about Scientology, that it's going to impact how you do your job in terms of what you find credible, consistent, contradictory? Anyone feel that about religion generally, or Scientology. 181?

181: I don't think your religion should define you.

Anyone disagree with that? Does anyone think that the mention of Scientology will affect how you take in evidence. Juror 198?

198: I am familiar with it on a documentary, but I also studied comparative religion.

Also, 121? And 139? So the three of you have made some mention of Scientology. My question is, should I Have any concern about you being impartial knowing that you're going to hear testimony about Scientology? 121?

121: I say no

198: You should have no problems from me.

139. No.

Is there anyone who just really doesn't want to be hear based on this case, for any reason? 143? You don't want to be here?

143: No.

Also 155, and 188, and 201, and 119, and 206, and 83, 119, 68, 210, 177, 36, 44.

Time for our lunch break. 

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