Danny Masterson, the retrial: Jury selection begins this morning and we’re on scene

[Masterson and his defense attorney, Philip Cohen]

Jury selection begins this morning in the Danny Masterson retrial at the Clara Shortridge Foltz Criminal Justice Center in Los Angeles.

Like last time, the That ‘70s Show actor and Scientology celebrity is facing allegations that he forcibly raped three women who were Scientologists at the time of the incidents, which took place between 2001 and 2003. The first trial, which started last October 8, ended up in a hung jury and mistrial on November 30.

This time, the court’s communications office asked if we’d serve as pool reporter during the jury selection process, when Judge Charlaine Olmedo’s courtroom is packed with potential jurors and there are few seats for media.

We happily agreed, and so we’ll be doing our best to take detailed notes this morning that we’ll be sending out to a list of other reporters who have asked to receive copies. And we’ll be sending you the exact same pool report those journalists will receive.

We expect that today’s session will be a short one as Judge Olmedo gives an opening address to the potential jurors and then gives them a questionnaire to fill out. But we’ll be taking notes of the scene, and of course we’ll let know you if there’s some sartorial splendor going on.

Yes, in some ways it’s like déjà vu all over again, and we’re glad you’ll be along with us.

Keep an eye on your inbox. You should receive our pool report around the lunchtime hour, we guess. Followed by one or more video reports.

Also, you will probably have noticed that we’ve switched to a later morning schedule now that we’re on the west coast. Expect to see morning posts here and at the dot org site at 6 am Pacific, 9 am Eastern, and 2 pm London. (Our detailed reports from court once testimony begins can come at any time, but usually at the breaks, which tend to be around 10 am, noon, 2 pm, and 4 pm Pacific.)

In addition, we wanted to bring you some more information about the last-minute appeal that the Masterson legal team attempted last week, which was to appeal Judge Olmedo’s ruling that denied Danny’s request to move the trial back to August.

Defense attorney Philip Cohen submitted a petition for a writ of mandamus, asking a state appellate court to stay the case and grant the delay. That petition was denied. But we have a copy of what Cohen sent to the court, and we thought you’d want to see the opening paragraphs, where he describes why he believes that the defense needs more time to prepare.

It should give you some idea of the concerns that Danny’s defense has going into the retrial over things that have changed from the first time around…

Petitioner faces life in prison for three counts of forcible rape, each allegedly committed almost 20 years before charges were filed in 2020. A trial that took place in October and November of 2022 resulted in a hung jury – with vote counts that leaned strongly toward acquittal.

With the understanding that a second trial would look substantially similar to the first, Petitioner agreed to a trial date in April 2023. In recent weeks, however, the People’s disclosure of their intent to present new evidence to support a new theory of culpability and Respondent Court’s ruling that such evidence is admissible have significantly altered the case against which Petitioner must defend.

Petitioner requested a continuance to prepare for (1) a new witness who claims that over 20 years ago Petitioner drugged her and then raped her while she was unconscious; (2) a toxicologist who will essentially opine that Petitioner drugged and raped the three Jane Does (a theory the People did not argue at the first trial); (3) a new “rape trauma” expert intended to persuade the jury to overlook countless Jane Doe credibility problems and to educate the jury about how a victim’s ingestion of drugs impacts memory; and (4) a virulent anti-Scientology “Scientology expert” who will suggest that indoctrination by the Church of Scientology further excuses certain implausible words and actions by the Jane Does (former Scientologists), and who is likely to inflame the jury against Petitioner (a practicing Scientologist) by characterizing his religion as a dangerous cult.

Petitioner’s need to prepare for this new evidence and the significantly changed nature of the retrial provided good cause for a continuance, and granting the continuance would not have inconvenienced anyone or impacted the orderly administration of justice. Nonetheless, Respondent Court brushed aside Petitioner’s need for more time based on a steadfast resolve to proceed promptly. In so doing, Respondent Court erred. An “unreasoning and arbitrary ‘insistence on expeditiousness in the face of a justifiable request for delay’” is unconstitutional.

What do you think, does Cohen sound nervous?

As we said, the appellate court denied this petition, and the Masterson team does have recourse to go even further, to the state supreme court. As of this morning, we have seen nothing at the supreme court’s online docket which suggests that such a petition has been filed.

But we expect to learn more this morning when Judge Olmedo arrives in her courtroom.

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