SHAWN HOLLEY joins defense: Danny Masterson Re-Trial, Day 1, lunch break

[Shawn Holley]

We’re reporting this morning 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…

Deputy DAs Reinhold Mueller and Ariel Anson are representing the People.

Danny Masterson is wearing a dark suit with red socks and brown shoes. He’s clean-shaven.

His defense attorney, Philip Cohen, is wearing a tan suit, grey vest, and blue shirt. For Cohen, it's an understated look.

Attorney Shawn Holley is also present. She did not make an appearance during the first trial, but she has been listed as one of Masterson's attorneys throughout.

Judge Olmedo is explaining that she is finishing up another jury trial and so she's going to have to juggle things for a few days.

56 potential jurors will be coming in at 10:30 am and then another 56 more at 1:30 pm. Then another set of potential jurors on Tuesday.

They will all be asked to come back on Wednesday so the judge can begin questioning them.

She tells Cohen that attorneys will probably do voir dire on Thursday, although it's possible it may begin Wednesday.

She says she's hoping to have a jury seated by Thursday afternoon. And then Friday off to get organized, and then opening statements on Monday, April 24.

She says she's going to tell the jurors to reserve two months, to June 17, expecting the trial not to take that long. And she's going to seat eight alternates this time.

The attorneys leave the courtroom. They will return at 10 am and the first panel of jurors will arrive then.

[Judge Olmedo’s other trial resumes with a lengthy readback by the court reporter.]

10 am: The attorneys and Masterson have returned. Judge Olmedo is back on the bench.

Shawn Holley is at the defense table. I don't see attorney Karen Goldstein, who had been at the defense table with Cohen in the first trial.

Cohen says he has a witness list which is "basically the same as the last one." (If I recall correctly, for the first trial Cohen listed a few experts and Brie Shaffer, and called none of them.)

A jury consultant has joined the prosecution team. (I believe she was also involved in the first trial.)

Judge Olmedo tells her clerk that the potential jurors are not to fill out the questionnaires until they've taken their oath.

We are on the record, Judge Olmedo says.

Judge Olmedo says she appreciates the accommodation as she's trying to juggle two trials.

We have a few housekeeping matters.

Two groups of 56 potential jurors will come in today, groups of 56 and 41 will come in tomorrow. All of them will be back on Wednesday as Judge Olmedo begins asking them questions based on their questionnaires.

She's encouraging them to get the voir dire done on Thursday so they can take Friday off before starting testimony on Monday.

She says she's using the same questionnaire as in the first trial, but both sides will have more time to ask questions in voir dire.

But that's not more time to ask improper questions, she says. She goes over civil code about not indoctrinating jurors, etc.

You will be given the lists of prospective jurors and badge numbers -- names have been whited out. If you want to see a juror's name, the clerk has the list. You can ask to see the list, but not copy or take it. You do have the right to see the names to do Internet research.

She now brings up the issue of a subpoena in regards to Kathleen J (the fifth rape accuser, who will testify as an 1108 or "past bad acts witness"), and Cohen wants to talk to her about it in camera.

Before Judge Olmedo takes them back, she says she has been dealing with a two and a half month, 30-count, multiple defendant trial and to please excuse the state of her chambers.

Cohen quips: "If you want to take some more time before this trial starts, we have no objection."

Cohen, Holley, and their paralegal go back with Judge Olmedo into her chambers.

After several minutes they return to the court.

Judge Olmedo asks the People if they have a copy of the subpoena, but they don't. Judge Olmedo invites Mueller to come up and look at it.

Judge: The subpoena is to Kathleen J for all communications relating to Mr. Masterson for sexual assault. Or any discussion of court preparation. People?

Mueller: The only thing that I would say is that it does appear overbroad, and I think it would potentially call for some things that have privilege.

Cohen: I think by definition and by process a subpoena does not seek privileged info. No request is being made for any privileged info. Number two, as for overbroad I don't know how to make it any more narrow. It's simply asking for communications about sex assault.

Judge: To any person.

Cohen: Yes, it is communications to any person. But any statements made are still confined to sex assault allegations. I don't know how to make it more narrow. I said in camera my reasons, I would ask the court to consider those reasons.

Addressing Marsy's Law. Cohen: I am not aware of any case law that Marsy's Law trumps a defendant's right to obtain material.

Cohen references a balancing test. He references some case law involving Facebook in regards to Marsy's Law.

Judge: These are the court's concerns. I'm not certain that the court even has jurisdiction to order someone outside the jurisdiction, even another country, to order them to turn over anything. I am not certain I have the jurisdiction to issue the subpoena.

Cohen: I agree with you. I'll even go a step further. My understanding is that the defense does not have the ability to demand a witness outside of the US to show up in this court.

Judge: I did sign off on your request for anything in law enforcement's possession. But I thought as a government agency, if there was jurisdiction for the court to order something like an official document, that would be something the Canadian government might be more likely to follow through on. But as it relates to this request (for Kathleen J's communications), if I did have jurisdiction, there are a couple of things that come into play. She cites some case law. And she says that based on what she was told in camera, she does believe that the material they're asking for is relevant for the defense.

However, the Judge is disagreeing with the defense that the request is sufficiently narrow. She says the way they've worded it is overbroad. She's going through other factors, including that it would take a lot of time and would cause a delay in the trial.

So the court finds that this subpoena should be quashed and won't sign it.

Cohen: About the timeliness. The court has referred to that we learned of Kathleen J in September. That is correct, but it is imperative that the DA was not calling her. So, had I submitted the request then, the court would say, you don't have a reason to believe this is going to lead to admissible evidence, they're not calling her. The key date is when notice was provided that they would be calling her, and it was in March 2023. And from that date...the defense has taken steps to get the subpoena before the court. So I'm not going to argue the other reasons, but I do want to make a record about the timeliness.

Judge acknowledges that she and Cohen have a fundamental disagreement on law around that issue.

Calling in the jurors.

Judge: Good morning everyone. Now that you all are seated, I am going to ask that you stand and take the oath about answering your questionnaires and anything else.

The clerk reads out the oath for them to swear to.

Judge: This is the case of People v. Daniel Masterson.

Cohen introduces the other attorneys and Masterson.

This time Masterson stands up and holds up his hand as a greeting, but he says nothing and then sits down.

Mueller introduces the People's team.

Judge introduces the clerk, court reporter, and bailiff. She explains to them about speaking clearly for the record and to wait until a question is fully asked.

How many of you have been through this process before? About a third. How many on a jury? A few less than that.

She asks them to be honest and answer the questionnaire truthfully, even if some of the questions are intrusive.

They will fill out their questionnaires and come back Wednesday morning.

She's now reading them the standard admonition, instructing them not to research the case or discuss it.

I promise you the case is interesting, the lawyers are excellent, and any questions you may have about the case I can discuss with you further on Wednesday.

She dismisses them.

We'll get another set of potential jurors after lunch.

---

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