JUDGE OLMEDO DEFENDS RECORD ON JURORS: Danny Masterson Trial, Day 26, morning break report

Morning session.

Sartorial splendor report: Defense attorney Philip Cohen is wearing a light grey three-piece suit with a light windowpane pattern, a pink shirt, and a lavender tie and pocket square. It's the kind of bright outfit we have come to appreciate from him.

The court is handling another matter. An older defense attorney asked Judge Olmedo if she had seen a sketch of herself on television. He said it took 20 years off of her, and she had black lips, like it was the "Goth" version of Judge Olmedo.

"How did they know what I looked like in college?" she says with a laugh.

They move on to discussing the Dodgers letting Cody Bellinger get away.

Those attorneys make their way out, and our parties assemble.

Something is up this morning.

Defense attorneys Cohen and Goldstein, and Deputy DA Anson are here. Danny and Bijou come in.

Olmedo: On the record. I just wanted to put some things on the record regarding defense objections yesterday. Before that, did either side wish to be heard? (No.)

Olmedo: I did want to correct some statements made on the record yesterday. Defense had said only one potential juror said anything about Thanksgiving plans in voir dire. I want to put on the record that I told the potential jurors that the case would end by Nov 18, and so they were not asked about Thanksgiving plans during voir dire.

We were concerned that the defense had questions about the integrity of Mr. Saiki (the clerk) about the Thanksgiving plans of the jurors. And I want to put on the record those plans. Also, the defense had raised concerns about the jurors taking a break over Thanksgiving week, about the jurors discussing things with family at Thanksgiving.

Judge Olmedo reminds them that even if they had come back during that week, they would still have had Thansgiving day itself off (and that Friday) and would have been around family or friends. And she points out that this is also true on any evening or weekend, and so "there's nothing magical about a holiday." The defense objection is based on speculation, not evidence, she says.

She also points out that there are trials going on in the building that have similar concerns, and her admonitions would be the same for any holiday. She points to the Weinstein case going on down the hallway ("a case with much greater notoriety"), and she says that it also took the week off for Thanksgiving.

While we were dark in the trial last week and the jurors were home, the court was open and she was here. The break was about the juror plans, not for the court.

She's also pointing out that the defense objected to the alternates being seated yesterday. And she's saying the defense is inconsistent in what it wants as far as whether to sit alternates or not. She's basically going through their various objections and showing that they don't really make much sense. She calls them "not logical."

So, for the record, she goes over the five specific jurors and the plans they had for Thanksgiving week, things they told the clerk. Some of them were taking care of grandkids, some of them had child care issues, some had family coming in from out of town. These were all things that Robert Saiki, the clerk, had received from the jurors.

Judge Olmedo: Do you need me to put Mr. Saiki under oath?

Absolutely not, Mr Cohen answers.

Cohen: I understand that breaks and holidays come up all the time and it's not unusual to take a break. You mentioned the Weinstein case, my understanding is that it was between breaks in evidence. The difference in this case is, number one we're not in the middle of evidence. And we're not just in deliberations. What happened here was after 2.5 days, they had no questions on Friday, and the jury indicated they were deadlocked. After 2.5 days with no questions about the law and one read-back. That's what separates this case in my view. It's not speculation to the defense that the taking a long break...

Judge Olmedo interrupts him, saying he's not addressing the court's concern. If they had replaced the jurors with Thanksgiving plans with alternates, they would still have to start anew....

Cohen: Cohen cites a published case that deals with a lengthy break in deliberations.

Olmedo: I would not characterize three days as a long break. Thursday and Friday were court holidays.

Cohen is citing 'Santa Maria,' a case with 11 days break in deliberations and a conviction was reversed on appeal. The appeals court's concern was the possibility of jurors discussing with outsiders at this critical point, meaning deliberations, which is different than in the evidence phase. The court of appeals indicated the concern that the jurors would discuss the case with outsiders and the memory of evidence would be dulled or confused. Cohen cites language of the appeals court being concerned about a break of 11 days. (The break here was 10 days, but only three days that were not breaks on the schedule.) So given those concerns, what my request was a couple of things...

Olmedo: Your request is already on the record.

Cohen: My position on Friday was, let's bring them out and have the court talk to them, and two, in the middle of deliberations, who knows what would have happened if the jury had come back Monday, even with a number of conflicts.

Olmedo points out that there were three days lost, not 10 or 11. Juries take breaks on evenings, weekends, and court holidays. So they only missed three court days. Moreover, we had jurors with travel plans going out of state who said no way they were coming in. Even replacing just one of them, the jury would have to start anew. So had we replaced the one out of state or the grandmother taking care of her eight year old grandchildren, the jury would start anew anyway, and that is not reflected in the case you just cited. I don't find that dispositive. I just wanted to make sure the record is clear that we did not vet the potential jurors during voir dire, but they then brought up scheduling conflicts with Mr. Saiki. They told him they were absolutely not coming in.

Cohen is now arguing that there was no inference that he said such a thing (that there was no evidence of the travel plans from the jurors.)

Olmedo: I think the record is clear that you did infer that.

She points out that either way, if they had replaced jurors who had Thanksgiving plans or the the way it worked out, the jury had to start anew either way.

Judge Olmedo also admonishes Deputy DA Anson that Reinhold Mueller is not present. She wants the attorneys 20 minutes away during deliberations.

The attorneys and the Mastersons file out, and we're back to waiting, just us journalists (about 9 of us) in the back row.

As we wait, some of the journalists are grousing about Instagrammers, TikTokers, and YouTubers who are making a fortune ripping off the hard work of reporters who are actually on the scene. (And who usually end up mischaracterizing that work.)

Ah well, what can you do.

And at 10:15 am, the jury takes its first break of the day.

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