NEW JURY STARTS OVER: Danny Masterson Trial, Day 25, morning break report
Judge Olmedo is handling another couple of matters first.
One experienced journalist told me this morning that if there is a hung jury and mistrial, he'd guess a new trial would take place about 10 months from now, based on his memory of how a Cosby matter went here.
We're waiting on a couple of jurors and a couple of alternates. Just turning 9 am now.
Sartorial splendor report: Defense attorney Philip Cohen has decided to let us all down today. He's wearing a very unremarkable pinstriped dark suit today, with dark tie. The only flash in his getup today are some light colored socks and brown shoes. Ah well. So much for our expectations.
Prosecutors Reinhold Mueller and Ariel Anson are here.
Judge Olmedo has asked for Masterson to be present. Is something up?
Family is coming in.
Mackenzie Phillips. Chris Wadhams. Carol Masterson.
Judge Olmedo: A couple of things have transpired. We have two jurors who are seated in the 12 who contacted the court. They are symptomatic and tested positive for Covid yesterday. The jurors in seat 2 and seat 7. We have an alternate (seat 17) who has strep throat. She requested 24 hours to be excused.
I'll allow both sides to be heard. The Court's intention is to dismiss both Covid-positive jurors and replace them with alternates. And see if both sides agree that alternate (seat 17) will also excused.
Then two chosen from three remaining alternates.
Cohen: I'm objecting to any changes in the jury at this point. And I just want to step back a bit from what happened Friday (Nov 18). Over the break we went over voir dire. One juror said there was potential conflict with Thanksgiving, that juror is not on the panel. So from my review none of the 12 on the panel said that Thanksgiving was an issue. I don't know if there's been other communication that there were problems. But I do think whatever those Thanksgiving problems were they be articulated. As I said when we broke there were a number of different alternatives we could have taken, and now we have a hopelessly deadlocked jury.
Olmedo: That's not what they said. They said they could not reach unanimous verdicts. They did not say they were hopelessly deadlocked.
Cohen: I stand corrected. (Cohen now goes over what happened Friday, and that they were sent home two hours early.) Now we have a situation that is not a surprise. And so that jury, that has spend 2.5 days, starts anew with at least two new jurors. I do think it's critical at this point to make a record of what the problems were with Thanksgiving, why they couldn't use Monday and Tuesday, and what the issues were with that week.
Olmedo: The court did make that inquiry and we'll put that on the record.
Mueller: I do think the two jurors should be dismissed and we would stipulate to that. And also to the exclusion of the alternate.
Olmedo: Mr. Cohen, I understand your position. I assume you won't stipulate to the alternate being excused. (That's correct.) OK, over the defense objection, the court will dismiss the two jurors who have tested positive for Covid and are symptomatic. And the court will excuse alternate juror with strep throat.
Olmedo: That leaves three alternates, two will be chosen for the jury. Court will note this is against defense objection, and the court will dismiss defense request for a mistrial.
Olmedo: As for the jurors who had conflicts on Thanksgiving week, the clerk took notes on that and we will put that on the record.
Now bringing in the alternate jurors.
A man and a woman are chosen to replace two women.
Judge Olmedo is admonishing them that they must disregard all previous deliberations and must start over from the beginning.
The jury is back to 6 men, 6 women. They go back to the jury room. The lone alternate, an Asian man, goes out to the hallway.
At 10:30 am, the jury buzzes: They are taking their first break.
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