MOTION TO DISMISS DENIED: Danny Masterson Trial, Day 20, end of day 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.]

Late morning session.

Judge Olmedo calls up the attorneys for a sidebar.

Now Cohen and Goldstein are discussing things at one end of the courtroom and Mueller and Anson on the other. Judge Olmedo sitting at the bench, waiting for the two groups to come up with something.

She had apparently typed up some admonitions and stipulations, and they're going over them.

Judge Olmedo gets us back on the record.

Cohen is OK with one of the stipulations. He asks to look at jury instruction 1000, and Judge Olmedo apologizes that she hadn't modified that one yet.

They are going over individual jury instructions. Whether a particular instruction is appropriate

Now Judge Olmedo indicates that the juror in seat 7 tested positive for COVID yesterday. They obviously can't be around our other jurors. She asks if both sides will stipulate that that juror can be replaced with an alternate. The alternative would be to wait 5 to 10 days to test their status again.

She asks Cohen if he will go along with replacing the juror. Will the defense use this as a delaying tactic?

The juror felt sick on Saturday and tested positive on Sunday.

She says if someone is symptomatic, you have to wait until they are no longer symptomatic.

We're not going to stipulate, Cohen says.

Judge Olmedo: The court is going to excuse juror 11 in seat 7 finding good cause, over the defense objection. So without any reference to when they might be available, the court finds there is good cause to replace them.

Cohen now wants to raise a word in one of the admonitions. Admonition three. Raising the issue of not saying that there was no evidence that Masterson was "directly involved in harassment or stalking." He wants it to be "indirectly or directly," or to remove the word "directly."

Judge Olmedo is saying that she has purposely limited testimony about harassment or stalking. She understands that there's no evidence that's been testified to in this trial, but that doesn't mean that there is no evidence out there. But it sounds like she will make the change.

She leaves the bench and there's nothing going on for a while.

Judge Olmedo has returned, and she gives copies of the edited admonitions and stipulations to the attorneys.

Back on the record. Judge Olmedo says there is one more stipulation that she will type up. She did remove the word "directly" that the defense had asked for.

Cohen has a motion, under 1118. A motion to dismiss. As to each of the three counts.

Cohen: Not going to talk about the evidence, but if one were to remove the bias, sympathy, emotion, regard for public opinion from the testimony in this case, there is no reasonable jury that could conclude the case has been proved beyond a reasonable doubt.

Mueller: First of all, I think the facts presented, certainly supports the fact that there have been forcible rapes in all three counts. With regard to removal of any bias, any biases that do exist is for the jury to consider.

Judge Olmedo: The court finds with regard to standard (case law), it has been met and there has been sufficient evidence entered to deny the defense's motion. It is denied. People have already rested. And defense rests?

Subject to exhibits being entered, yes, Cohen says.

She says she'll bring in the jury, seat an alternate, have both sides rest, and then send the jury home until tomorrow for closing arguments.

Bringing jury in.

Alternate juror 81 in 13 gets in. A woman who works for Fox Sports.

Pretty sure that means we're at 7 women, 5 men.

Judge Olmedo will now read stipulations and admonitions.

She reads the Scientology admonition, that church policies are being discussed for the state of mind of the victims.

No evidence that Masterson was involved in harassment or stalking.

A stipulation about Detectives Vargas and Myape (Reyes). And that the fact a victim wrote a complaint letter is not an indication of any finding of wrongdoing.

Stipulation: That on April 25, 2003, Masterson owned a registered firearm.

A stipulation about the 2004 NDA agreement and draft civil complaint.

A stipulation that in 2019 the women filed a civil lawsuit against Masterson.

Both sides agree to the stipulations.

Now going into reading of jury instructions.

I will now instruct you on the law that applies to this case.

You must decide the facts. Based only on the evidence in the trial. No bias or stereotypes should come in. You should not be biased against any party because of race, gender, etc.

You must follow the law as I describe it, even if you disagree with it.

Do not use the Internet, a dictionary, in any with this case. Do not investigate the facts or law on your own or as a group, etc.

Your notes are for your own individual use to help you remember what you heard in the trial. If there is disagreement over what was said in testimony, you can request for a read-back from the court reporter. At the end of the trial your notes will be collected and destroyed.

Goes through the dates of the three incidents, but she admonishes that these dates are approximate.

About how the name "Jane Doe" is not evidence. Do not consider it as so.

Should not be biased against the defendant for being arrested and brought to trial. She goes over presumption of innocence and proof beyond a reasonable doubt.

She describes what evidence is. That nothing the attorneys say is evidence. Only the witness answers are evidence.

She goes over definitions of circumstantial evidence.

You alone must judge the credibility or believability of witnesses.

You may believe all, part, or none of any testimony from a witness.

More instructions about how to judge what evidence is credible, etc.

She now goes over the definition of the forcible rape counts that Masterson faces.

1. Had sex with a woman. 2. Not married. 3. Did not consent to it. 4. Force or fear. Any penetration with penis. Ejaculation not required. (Judge Olmedo earlier had made a reference that the "not married" thing has been removed in the current law, but since this was before 2022, they have to use the older version of the statute.)

That they dated is not on its own proof of consent. Use of a condom is also not evidence of consent.

Defendant is not guilty of rape if he actually believed that she had consented. The state's burden is proving that he was aware he did not have consent.

Goes over the allegations that are not being charged for.

Referring to evidence that the Jane Does had consensual sex separate from the charged incidents.

Each count is a separate crime, must return separate verdicts for each one.

Telling them they should choose a foreperson. Try to agree on a verdict.

How to communicate with the judge during deliberations. That they need to be unanimous.

Whew. That took a while. Lots of it seemed pretty standard and so we didn't try to get it all down.

She says that closing arguments will happen tomorrow. She dismisses the jury.

Now she turns to exhibits. The two sides review some materials.

They discuss that during deliberations, if the jury wants playback of video or reading of transcripts, it will occur in open court with Masterson present.

They're discussing some hearsay objections about some of the exhibits. One I think is Tricia Vessey's message to Chris Masterson, and how it should look for the jury.

Mueller is objecting to a defense photo of JD3 tongue-kissing Masterson.

Olmedo says they were in a six-year relationship, so what is the People's objection?

I just think the photograph itself depicting them tongue-kissing, it's irrelevant.

Judge Olmedo asks if they objected to it at the time it was entered. Anson says yes, and they are checking the record.

Cohen: With respect to the photo, it was shown to JD3, was shown to Ms. Anson. (Not to the jury though.) Ms. Anson asked that I not publish it at that time. The foundation has been laid. The objection has been made by Mueller that it's not relevant. The testimony is that it was a six-year relationship without any love, a photo of them tongue-kissing would seem relevant to the testimony.

Olmedo: Court will allow it.

Asking the attorneys to come at 8:30 tomorrow and the jury will come at 9 am.

Closing arguments from 9 to 4 tomorrow, and we'll go over to the next day if we have to.

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