Prosecution's turn for voir dire: Danny Masterson Re-Trial, Day 4, afternoon break

We’re reporting this afternoon from Judge Charlaine Olmedo’s courtroom, where we’re acting as pool reporter during the jury selection phase of Danny Masterson’s retrial.

What follows is the same report we sent out to reporters who had asked to receive a copy…

Something I didn't get to mention earlier. During the first trial, attorneys who work with Vicki Podberesky, a lawyer who has worked many years for Scientology, were very conspicuous, showing up early every day to secure a seat even when there was only a single public seat. (This is not surprising. The accusers in this case are also suing Scientology civilly, so it makes sense that the church would want to keep an eye on the proceedings.)

That hasn't been the case this time. There was no sign of these attorneys over the first two days. During today's morning break was the first time I spotted one of those attorneys, Dillon Malar, who popped in briefly. He appeared to be bringing a file to the defense. Just as quickly he was gone. No idea what that means.

Jurors 103 and 84 indicated at the break that they too would like to be excused.

Judge Olmedo excuses the following: 143, 155, 188, 201, 206, 83, 119, 68, 210, 177, 36, 44, 103, 84.

Deputy DA Ariel Anson now begins the prosecution's voir dire.

Anson: Both sides are looking for people who can be impartial. We all come in with different backgrounds. But based on something in your past, is there something that would cause you to be unfair in this case. We're asking for people who recognize their biases and can not use that to determine guilt or innocence. Some can, some cannot. So if you have something that you will not be able to put aside, please raise your hand. Juror 5, left blank whether he knew Masterson. Did you know him?

5: I watched the show.

Anything about that, like you thought he did a great job in the show, the People will have to have a tougher job.

5: He's very talented.

Is that something you can put aside and judge the case fairly?

5: Yes.

So the defense doesn't get an extra brownie point because you liked his show?

5: Yeah.

Juror 24, based on your closeness to the subject of sexual assault, was the perpetrator a stranger?

24: It was family.

And not reported to law enforcement? (Correct.) If you were to hear from victims in this case that handled it differently, could you judge them fairly? (She says yes.) Juror 30, what is your job? (Automotive technician.) Juror 39, you mentioned you had an acquaintance who had familiarity with sexual assault (Yes) Do you know a lot of detail about who assaulted them? (No. No charges filed.) Anything about that that would impact your view of the witnesses in this case? (No.) Juror 52, based on your profession, good and bad experiences with law enforcement. (Yes.) Juror 108, one jury you were on was a hung jury. How was that experience?

108: Very unsatisfying, actually painful. It was a case of jury nullification.

Juror 130, you also indicated you were on a hung jury. How was that?

130: Describes situation where someone on the jury wasn't following the judge's instructions, and it was frustrating.

Juror 154, on a jury that was hung. (No.) Juror 182, on a hung jury.

182: Yes, a criminal case, drugs. Split jury. It was an eye-opening experience. It lasted for three days.

Juror 199, you were on a hung jury? (Alternate though.) Now I'm going to ask some general questions. Juror 15, when you came into this courtroom and you heard the charges, did you immediately think this a situation where there was a stranger hiding in the bushes who assaulted someone?

15: I didn't have any facts in the case yet.

Did anyone else think the charges were about strangers? (No hands.) Juror 39, 41, 45, 46, 49: Anyone immediately think stranger? None. Asks the same of another front row. Still no hands. Juror 31, if two people are in a romantic relationship, and had consensual sex 200 times, if on the 201st time, the person says it isn't consensual, does the fact that it was a relationship mean it can't be rape?

31: If it is an unwanted approach, I think you have to honor consent.

Juror 13?

13: I don't think it matters how long it's been, if it's forced that's rape.

Jurors in the front row, anyone disagree with jurors 13 and 31...

Another juror speaks up: If she says no I should honor her words. I don't take it upon myself to force it on her even if we've done it 200 times.

Anson asks another section if anyone feels differently, and then another group. Anyone disagree? Juror 171, do you agree with the others?

171: I agree with them. I have actually arrested people for spousal rape.

Juror 138 has a question: Are there degrees of rape? Anson says the judge will give them instructions of elements, and it's our job to prove every element beyond a reasonable doubt. The law says if you're married you can still rape someone. Can you follow that?

138: Yes. But my perspective, but it depends on what stage of the act. If it's foreplay, says no, and continues to have sex, that's rape. But if it's gotten to a point of penetration, and she says no and he stops, that's not rape.

If they're doing foreplay and the woman agrees to kissing or digital penetration, commonly called fingering... (Objection, sustained) You had indicated if there was foreplay, and she said no, and he continued that would be rape. Juror 11, if someone is ok with foreplay but then stops and the other forced additional acts, do you think that can't be rape because she agreed to some acts.

11: I would say no, that it can be rape.

Juror 166, had a question?

166: Doesn't the law say something about if the marriage is good or bad? (This gets a big reaction from the women in the courtroom.) No, look, I don't agree with forcing your will...

Juror 34, when you imagine what a rape victim looks like, age, sex, emotion, whether the person knew each other, whether they called 911 right away. When you imagine that person coming into court, are they crying?

34: Not necessarily...

But if you had an image in your mind and it was different than what you saw in the courtroom...

34: You can never predict how you're going to react in stressful situations, when it hits you.

49: (Also suggests that you can't predict how the person will appear.)

Anyone disagrees with jurors 34 and 49, that if the victim is not crying, or not acting the way you expect them to, would you disregard them? (No hands.) Juror 46, If you hear that a victim engaged in conduct that was risky, for example a young woman goes into a bar by herself, in a short skirt, flirting with men, and then they become a victim, is there any part of you that thinks that shouldn't end up in the criminal justice system? (Obj, overruled)

46: The person committed a crime, it doesn't matter how the victim dressed or whatever. If a crime was committed, it should be prosecuted.

Juror 41, same question. If a victim engaged in risky behavior.

41: They should have due process.

Is everyone ok with the idea that your job is not to judge the victim, but to apply the law and decide if we've proved the case beyond a reasonable doubt? Anyone in this back row think differently, that if the victim acted in a way you didn't believe in, you could still see her as a victim? Juror 79 has a question. About it happening 20 years ago, how can they remember all the details? In 20 years from now I'm going to forget.

Judge Olmedo: I will be giving the law, and one is how to interpret witness testimony. As far as the facts of this case, the attorneys cannot answer.

Anson: The charges are from the early 2000s. My question, Juror 10, do you think that how old this case is, even if the people proved their case, there's any part of you that would say, the charges happened so long ago you can't convict? (No.) Anyone else have a problem with that? Anyone going to feel these crimes happened so long ago I can't convict? Juror 23?

23: No.

It's normal to think that these charges happened a long time ago. Can you follow the law, if we meet the burden and you believe the evidence, or is there anyone who can't convict? As jurors you will decide who to believe. What I want to make sure is, if you believe them and we proved our case, would you practiced jury nullification and not convict because the crimes happened a long time ago? Juror 127?

127: It seems like events that happened a long time ago it would be more difficult to prove. But that still could be done.

Perfect. That's all we're asking about, is if we prove our case, can you convict. Juror 138?

138: Earlier there was talk about the MeToo movement, but I wasn't sure why it was brought up. But now, in my mind, were charges brought up after the MeToo movement came about? And is that something I have to set aside to be fair to both sides?

In this courtroom the only thing jurors can consider is the evidence provided. You have set other matters aside. So, Juror 138, are you able to focus only on the evidence provided in the case?

138: Yes.

Last thing I'm going to talk about, Juror 8 mentioned this with Mr. Cohen earlier. You said that just because a witness says that they were raped doesn't mean that they were raped. Going to give you a hypothetical, which is about whether a person thinks a crime occurred or not -- and that is separate from the people proving that it is. So that a victim didn't call it the crime, can you still convict on it.

196: If there's no aggrieved party, why would we proceed?

That's a great question, but she explains why this is why it doesn't quite work with her hypothetical.

200: I find that hypothetical difficult to understand in our context. Did you consent or didn't you?

We have to prove every element, the defense has to prove nothing. Whether or not someone calls something a crime, that is not an element. (Obj, sus) Clears it up for the juror.

Mueller takes over. I just want to follow up a little bit. Some of the things you've heard about burden of proof. The people's burden is a need to prove each element of each charge beyond a reasonable doubt. We need to do that. I want to tell you there is no beaker, there is no container, no big tall bucket, no big box with a red line -- that does not exist. I'll tell you what does exist. There is a jury instruction it will define exactly what beyond a reasonable doubt is. And it is beyond a REASONABLE doubt, not beyond all doubt. And it's not to 100 percent certainty. (Obj, sus) I'm going to ask if there's anyone here who believes they would hold us to a higher standard than beyond a reasonable doubt.

209: What would be more than beyond a reasonable doubt?

Judge Olmedo: I am going to jump in here now. I will give you an instruction on that at a later time.

Mueller: I believe there are some people who are here with a scientific background. Juror 151, are you an accountant?

151: Yes, it is mostly making reports for the mental health department.

And is it important for you to be accurate in those reports?

151: Of course.

In proving a case beyond a reasonable doubt, there is no math in that. No numbers. Would you have a problem with that?

151: I do have some biases myself. (Regarding the subject matter. Not clear.)

The People here will give evidence of three separate crimes, of forcible rape. And they are on separate dates and separate victims. Juror 9, if you're chosen, one of your roles is to evaluate the evidence, would you agree that it's important in evaluating the evidence, to look at evidence that might corroborate it. Do you understand corroboration?

9: That there's evidence that supports the crime.

You would agree that's important to consider?

9: Yes

Let me give you an example: The little boy across the street plays with a baseball by himself. I come home and I find my window's been broken and there's a baseball. Would you agree that as possible corroboration?

31: Are we agreeing that there's a baseball and broken window, or that there is a little boy playing and a broken window.

What if my neighbor George said his own window had been broken. Would you find that to be corroboration?

31: But nobody saw the boy break the window? That's a thin line if you ask me.

Would you say it provide some corroboration.

31: Yes, some corroboration.

Describes a third house with a broken window. If you were a juror in the case, would you take that evidence -- three different windows -- would you consider that evidence as applied to my window, or as separate.

31: Yes, I could see that as evidence that the boy had broken the windows. But I would need more evidence. Today's world? Ring cameras.

Juror 138?

138: All those three different windows by three different baseballs does not necessarily mean that that the little boy broke any of them. The boy could have been the person who broke them, but that's about it.

Mueller says this is beginning to explain the difference between direct and circumstantial evidence.

Mueller: You have heard that police officers will be testifying as witnesses. You're going to hear testimony about their investigation in a case. Juror 52, you were law enforcement. And 45? Would you agree that there are some officers who are very good at their job, and others that are not so good or who have a bad day? Both 45 and 52 agree with that statement.

He then asks that they understand that at the end of the trial, there is not going to be a grading sheet for how well the law enforcement officials did on their investigation. After you've listened to the evidence and believe it was guilty, even if you believe the police may have not done the best work.

Taking afternoon break.

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