DANNY MASTERSON WILL FACE RETRIAL

The gang is all back here in the courtroom of Judge Charlaine Olmedo at the Clara Shortridge Foltz Criminal Justice Center in Los Angeles.

"Hey, Tony," said Will Masterson as he came to sit down, with a smile. He appears to be the only family member with his brother Danny today.

Sartorial splendor report: Defense attorney Philip Cohen is wearing a splendiferous grey windowpane suit that we've seen before. And he entered the courtroom with dark glasses. He greeted Deputy DAs Reinhold Mueller and Ariel Anson with a "Here we are again."

"Everybody ready to go?" the clerk Robert asked, but the court reporter, Diana, was just coming in to get set up.

Danny Masterson has grown a full beard since we saw him last. He's wearing a blue suit.

Judge Olmedo arrives.

Olmedo: Good morning everyone. I'm surprised everyone made it on time, with the traffic and the rain.

The court has received on Thursday the defense motion to dismiss. With two exhibits. With people's response filed yesterday.

I have read the pleas and done my own research. WWhat I think we need to do at this point is to find People's decision.

Mueller: We have discussed this case with our office has decided to retry this case.

Olmedo: So will allow the defense to argue.

Cohen: My first request would be to set the matter for a hearing. I did not set it for a hearing date in my filing. I had not given the government sufficient time to reply. I did get the response yesterday from Ms. Anson.

He's saying that he wants more time and to give the prosecutors time to go over his motion.

Olmedo: Denied. We can take care of it today. I've already researched it and I'm ready to go. So if you want to go forward

Cohen: I realize that the defense is asking the court to do a lot. That's in the interest of justice. The court is in a dfiferent position on either side of this. I want to harken back to one of the jurors in voir dire, who said both sides want to win. I've often said that myself. Both sides are veested in and generally believe in their case. The court isn't. The court is an umpire to call balls and strikes.

He's saying that the prosecution is saying that the jury refused or failed to take into account particular evidence. I don't think that's the takeaway from the interview. I took from it that they didn't take that evidence into consideration because it wasn't important to them.

He's saying that the prosecution is saying because the jury didn't take into account significant parts of their case, they had failed at their jobs. But Cohen takes the opposite view, that they had considered the case seriously.

Judge Olmedo listening to him intently. Cohen speaking kind of slow and low. He says he's asking the court to step in and grant his motion.

Mueller: For dismissal in this case wouuld simply not be in the interest of justice. I'm not going to go through all the reasons in our response. I do want to address the latter part of his comments.

I disagree with the view of whether the jury did its job. And that's based on the time we hadd with them in the jury room. I am not addressiing what came out subsequently in an interview. I'm only looking at what they told us in the jury room.

I specifically asked them what they thought about some of the corroborating witnesses. The foreman spoke out and said, "We did not consider it." That it was just about the victim testimony. Also that they did not consider the expert testimony. He again said they only looked at what the victims said. Cohen asked about the Scientology evidence, and the jurors said they didn't look at it.

All of that I would say was a little troubling. That they didn't look at all of the evidence in the case, but chose to disregard much of the evidence. That is not in the interest of justice

Also some things said that were just factually didn't come up in evidence.

We had one juror who indicated, she said, JD1 had left the case and then "dragged her bck into the case." Not true, Mueller says. From what he heard back there, Mueller says the jury ignoring some evidence was "a bit troubling." Not giving these victims another chance with a jury that will look at all the evidence, that would be an injustice.

Cohen: I hate to ask the court to revisit a ruling. If Mr. Mueller is going to be based on what all counsel discussed in the jury room, that it was jury misconduct, in failing to even mention pieces of testimony. It is so inconsitent with what the foreman has said publicly, which maybe why Mueller wants to ignore the 1.5-hour interview iwth commentatros in this case, but it's also consistent with the discussions that the defense has had with some of the jurors, some of whom reached out to us, that they all had a chance to speak. There was no indication that nothing was off limits. It's not that things were ignored that Mr. Mueller thinks are important, it's that things were discussed and not decided to be important. That's very different than calling it jury misconduct. That the jury was brow-beaten and didn't get to talk about what they wanted to talk about.

So now Cohen is asking to submit more affidavits by other jurors and more time to consider this. What the DA is saying is not what the jurors are saying in discussions that the defense has said post-trial.

He's now talking about how this jury was really a reflection of LA. You'd be hard-pressed to find a jury to take its job as seriously. They had one juror who took the most copious notes. This juror's notes were as copious and detailed and accurate as could be. And put charts up on the walls for all of the evidence, all of it. Then when they reread the instructions and admonitions. They had each juror read a portion of the instruction. Why? To ensure that each juror was involved in discussion and was heard.

But to say you don't agree with the result, you say this jury was guilty of misconduct?

Olmedo: Both sides are arguing an emotional component. She cites case law about how narrow her choices are, and jury opinions are not part of it.

What case law or statute that would allow the court to consider what each of you have been arguing?

Cohen: So the jury did its job. The court did its job. He's focusing on JD1 -- that her case is so illogical and unreasonable. You had the DA's office that had called supervisory detective Schlegel, their witness, and the DA's office took the position that the officer did not competently take a report or was tired when he took it. Couldn't remember if he took it at the beginning or end of his shift? That's how unreasonable JD1's testimony was, that the DA had to throw a supervisory detective under the bus to save her testimony. It's unreasonable, it's illogical.

Because of that, he thinks it is in the court's discretion and in the interests of justice, for the court to look that a case should not go forward, or a count could not go forward. And I think anyone who looked at that testimony would come to that conclusion.

Judge Olmedo, is talking about case law, which she says goes back to the 1960s, and that she says are missing in the defense motion.

You cited the case law (Hatch) that supported your case, but you didn't cite the case law under this area. She says she found it quickly and easily.

As for his asking for more time, she's saying this court date was known since December 8.

She's saying he left out a key case law (Howard). And she's not going to grant him more time to look it up.

Cohen is now talking in general about which case law is cited or not cited.

Cohen is saying that the government, in its response is not arguing about the crebibility of the women or how things are going to change for a retrial.

He then points out that this wasn't just 12 jurors, but 14 jurors (based on what the foreman said about a couple of jurors who were replaced.)

One more time, Cohen says it's appropriate for the court to consider the likelihood of a different outcome.

Olmedo: The judge is going through some case law. She's citing cases about a judge's discretion to dismiss a case. And she's reading from a case that says dismissing a criminal complaint is disfavored by the interests of justice.

Some of the elements that the case law says a judge could consider are things like a defendant being in custody, being sentenced in another case, and a defendant being harassed. (None of which apply to Masterson, we note.) She goes through more elements, like nature of the crime, etc. Case law says the rights of the defendant and the right of the public need to be weighed. She continues to go through additional cases.

The court finds that both conclusions by the defense are speculative. The only material the defense submits is the jury foreman interviw, which the judge says is precluded by case law.

But she does reflect on the jury foreman is only speculating about what future juries might conclude, and the brief also ignores what the jury foreman said about how the DA could have presented the case better. (Which we pointed out!)

The People only called 16 out of 36 potential witnesses. This hardly supports the defense assertion that a retrial would not be different than the first trial.

In addition, the jury foreman's argument is unpersuasive that a future jury wouuld have the same outcome.

She discusses the nature of the crime, serious violent felony, and this argues against dismissal.

As for incarceration, Masterson has been out on bail. This factor weighs against dismissal.

Possibility of harassment to defendant: The defendant faces no more harassment than in any retrial, and he's not incarcerated. Weighs against dismissal.

Witnesses who did not testify that could be called: This weighs against dismissal.

The effect on the public if the charges are true, and if he's convicted the public would be protected from a violent felon. So this weighs against dismissal.

Balancing all of the penal code 1385 factors, all factors weigh against dismissal. The defense has not presented any evidence against any of those reasons.

Given that, she says, as for dismissal: "I decline to do so."

Cohen gets a chance to put something on the record. Something about transcripts.

Now they talk about dates for status conference.

Cohen is complaining about new witnesses coming in on the prosecution side, including new experts and a percipient witness.

Also there are discovery requests that need to made and subpoenas going out, which might trigger a Marcys Law issue.

Judge Olmedo suggests a week in February for motions, and they appear to be settling on Thursday, February 16. No motions on that date whatsoever, she says.

Cohen says, I foresee that we need to get in before that on subpoenas. I need to see what's going out.

She tells Danny he doesn't need to be here for the Feb 16 status conference, that not much will happen that day.

Motions for March 6.

They are moving the 402s to March 27, then the jury selection beginning March 29, and voir dire on April 3.

She tells Masterson the only date she's ordering him back starting March 29 to call jurors.

She urges everyone to drive safe in the bad weather.

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