MASTERSON WILL NOT TESTIFY: Danny Masterson Trial, Day 20, morning break report
[This report was produced live during a court hearing with a lot going on. There will be typos. Please don't email us about typos that you find.]
Early morning session.
Judge Olmedo is taking care of a couple of other cases this morning, so the usual folks are not here yet.
Danny and Bijou arrive, and with Chris Wadhams. Chynna Phillips arrives.
Sartorial splendor alert: Oh, joy, it's a stunner! Defense attorney Philip Cohen is sporting a lovely light blue windowpane suit. A pale coral shirt and tie, and a green polka dot pocket square sets it off beautifully. We can tell you that the journalists are quite satisfied with Mr. Cohen's display this morning. Top notch.
We're on the record. No jury yet.
Defense attorney Karen Goldstein asks to approach about something that was filed under seal. A sidebar ensues.
Imagine our surprise when the judge asks your proprietor to approach the bench and join the sidebar. She informs us that there is a microphone on the bench and that we are on the record.
We are asked about the woman who took notes in the gallery last week.
We inform the court that the person had introduced themselves as a reader of ours, but that we didn't know her. They are apparently concerned about the detailed notes she appeared to be taking about the jurors. We are asked if the woman sent us notes about the jurors. We say that we have not received notes from her.
Judge Olmedo asks Ms. Goldstein if she has any other issue with your proprietor. She says no. We return to the gallery.
Judge Olmedo asks the prosecution if they still plan to rest. Yes, no witnesses.
Judge asks defense if they will have any witnesses. No.
So now she speaks with Danny Masterson about his rights. She says it is purely his decision whether to testify.
Have you discussed this with your attorneys?
"I have, your honor."
And have you reached a decision?
"I have, your honor."
And what is that decision?
"To not testify."
She then checks with the attorneys to make certain they believe this is a decision that Masterson reached independently, and they say yes.
She asks the prosecution if they can give closing arguments this afternoon. Mueller says he's not ready, so it will happen tomorrow.
So now they're going over the jury instructions again. Going over the numbers for specific instructions.
Alanna and Jordan Masterson have joined the family section.
Judge Olmedo asks Mueller if he has a specific suit that he wears for closing arguments. Mueller says he has a special red tie that he wears for it.
She asks Cohen, and he says that he goes into his closet, closes his eyes, spins around, and then chooses whatever suit he happens to select. Judge Olmedo jokes that she finds this hard to believe.
"Now we know he has a closet big enough to spin around in," the journalist next to me quips.
Now they're talking about the gun issue with JD1. She testified that it was not a "cowboy gun" but a modern one. Cohen is saying she didn't specifically refer to a semiautomatic, but he would be satisfied with "handgun" in their stipulation.
Cohen: JD1 described numerous issues of penetration. Pulling out and re-penetration. So there are a number of different acts that could be the charged rape. JD3, it wasn't really given a number. But she testified that basically every time we had sex it was rape, and that was over five years. And then JD2 described what could be taken as a rape in the shower, immediately after that in the bed, and she also said there was other sex after that incident. And as with JD1, every time there is exit and then re-penetration under the law that would be rape. So I do think we need the unanimity instruction for the jury.
Mueller: With JD2 it may be applicable because she did indicate penetration in the shower and on the bed.
Cohen: With respect to JD3, there's the Paris incident, which there is arguably sex...
Olmedo: But they're not arguing that.
Cohen: Honestly I'm not sure what they're arguing.
Olmedo: Well I'm pretty sure they're arguing the charged rape with JD3 was the November hair-pulling incident.
Cohen: The concern is, the jurors are going to say they don't know about November, but there's all these other rapes alleged. And that's a problem. If a juror is basing their verdict on a number of rapes and one of them must be right, and another juror is basing their verdict on the one specific act. And there was testimony from JD3 that every time they had sex it was rape, and that's dangerous.
Judge Olmedo goes over the jury instruction that applies here. She is saying that the JD3 is pretty specific about a particular incident and not conduct over five years.
Billy Baldwin has arrived.
Cohen is still talking about JD3, and is saying that she had never talked about a rape occurring in November. And again he complains that she testified that every time they had sex it was rape. (We don't remember her saying that.) But Judge Olmedo again says that the prosecution is focusing on only the hair-pulling incident in November.
Cohen makes it more clear now that he's asking Judge Olmedo for a special jury instruction that they would need to ignore the other allegations that JD3 made. But Judge Olmedo says the jury instruction is clear that they can't just choose some other incident. Cohen is asking for some specific language about "on or about" a set of dates. She is resisting him, but she says she is going to do some more research at the break.
Goldstein takes up the discussion of "avoiding juror confusion."
Judge Olmedo: If I was going to follow your logic that every penetration was a separate act of rape, then you might have 120 individual acts, and you are asking the jury to focus on only one particular penetration. But that's not what the case law holds. You do not have to give unanimity if there's a continuous act of rape.
She tells them to go do some research and bring her a case that supports their position. But she says the jury doesn't have to elect which penetration is the rape.
Cohen submits on it, he won't do further research. But he's still bringing up the time range on the JD3 case. Judge Olmedo says she will research it more at the break.
She calls for a sidebar. Might be something to do with a juror.
It appears that we will need to replace a juror with an alternate.
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