‘What’s Scientology on trial for?’ Danny Masterson lawyer hunted juror bias on Day 4

[Philip Cohen and his client, Danny Masterson]

After four days of jury selection in Danny Masterson’s rape trial in Los Angeles, we’re expecting things to begin moving very rapidly today.

Not only did Judge Charlaine Olmedo tell both sides that she expects to seat a jury by “midmorning” today, but we’re hearing that opening statements may be short enough that we could actually get to the prosecution’s first witness today.

Whoa, Nelly. But before we get too ahead of ourselves, we do want to review what happened yesterday in the trial. Judge Olmedo turned over the large number of potential jurors she’d squeezed into the courtroom to the attorneys for voir dire, which is French for “speak the truth,” Danny Masterson’s defense lawyer Philip Cohen helpfully explained to the crowd.

He talked to the potential jurors about standard fare like “reasonable doubt” and a presumption of innocence, of course, but we were especially interested when he talked to the jurors about Scientology.

“What’s Scientology on trial for? What are they charged with? Well, they’re not,” he told them, and it earned him an objection from Deputy DA Reinhold Mueller, which was sustained by Judge Olmedo.

Cohen tried again, a little less inflammatory this time: “Scientology is not a party but you’re going to hear about it.”

For more tidbits like that, we’re including yesterday afternoon’s video that we recorded outside the courthouse and sent to paid subscribers. And then we’ll once again post our pool reporter notes, which we sent out to other media organizations after the end of yesterday’s session.

Those should really give you a pretty complete sense of how things went down in court yesterday, and we’ll do our best to provide even more comprehensive coverage today.

Here’s our plan. At the beginning of today, day five, we’re expecting to see Judge Olmedo wrap up jury selection and then take a short morning break. That will give us an opportunity to put out a short report of what’s going on, and another one at the lunch break, perhaps after the prosecution’s opening statement.

Those reports will go out on the Substack, and will be available for everyone, paid or unpaid, subscribed or not. Then, at the end of the day, we’ll do another video report for paid subscribers.

Of course, plans may change, but at this point we assume we’ll be diving out of the courtroom multiple times tomorrow in order to file Substack posts for you. This thing is going to be lit.

OK, so here’s yesterday’s rapid report from outside the courthouse…

And here’s a version of the pool notes we sent to other reporters yesterday afternoon…

Judge Olmedo today is not wearing a mask. She had said that this policy in the courthouse was going to change.

Masterson is wearing a blue-grey suit with a light blue tie.

There's a new member of the defense team: Lois Heaney, a jury consultant.

Juror group three files in.

The introductions then commence, with attorney Philip Cohen introducing the defense team.

Once again, Danny Masterson says "Morning, everyone" to the potential jurors.

Judge Olmedo: "Mr. Masterson is an actor. Some of you may have seen him in television shows over the years."

Once again, she admonishes them about not doing research about the case or talking to people about it.

She explains again how important this case is to the people involved. Please take it seriously as jurors.

Masterson doesn't appear to have a friend or family member with him this morning.

Judge Olmedo: "Any Dodgers fans? How sad are we today. I wore black today for the occasion," she jokes. (Judge Olmedo likes to use a baseball analogy to explain who's calling balls and strikes in the courtroom.)

She goes through the criminal counts, and the estimate of concluding the trial by November 18.

She reads off the names on the witness list. Then she begins talking briefly to each juror.

A large number of them have indicated they've heard of Scientology or have seen a documentary about it or have heard something about this case.

One potential juror, #155, a registered nurse, is asked if she had worked with victims of sexual assault. She has, she says, but she says "most" of them are not really sexual assaults.

Another says he's known a few people who were involved in Scientology, but before he can say more Judge Olmedo asks him to come to a sidebar later.

Juror 172 says he has read some things about Scientology. "I've gone down some rabbit holes about it," he says.

Another juror says he worked at a company where the owner and most of the staff were Scientologists. He may have asked some questions about it but it was a long time ago.

A man who works in the television industry was asked if he had worked on shows about crime, or anything with Masterson. (No.) He said he has some exposure to Scientology by living in LA. He saw the documentary on HBO.

The next juror said that he'd seen an ad for Scientology the night before. Judge Olmedo seemed a bit confused about this, but she may not be aware that Scientology is currently airing ads about its benefits to Los Angeles, apparently to counter the negative publicity from the mayoral campaign.

An African-American man sat on juries for two criminal cases, including a double homicide. When Judge Olmedo asks him if he can judge a police officer like anyone else, he says no, he couldn't. And that's a view that has changed over time, he says. It’s a striking moment.

Another registered nurse says about Scientology, "I live in central LA and I've seen their majestic buildings. So it's hard to live in LA and not be exposed to it."

An older man with an English accent said he had heard general things about Scientology. "I don't know how to relate to Scientology," he says.

An African-American man said he was vaguely familiar with Scientology. "I've lived in LA all my life, I've seen the buildings. I have friends who got out of it and complained about it. It's a very restrictive organization." Would it impact your ability to be fair? Yes, he says.

Judge Olmedo releases the jurors, ask them to come back at 1:30 pm.

When we reassemble at 1:30, Masterson now has a friend or family member, a middle aged man we do not recognize.

Judge Olmedo now, with the courtroom filled with all of the prospective jurors, goes over more basics of law. She teaches them the difference between direct and circumstantial evidence, and that one is not necessarily more important than the other, under the law.

She then turns to the 5th Amendment. In a criminal case, regardless of charges, an accused has an absolute right to remain silent. You cannot consider that in any way. You can't use it in deliberations. I don't know what Mr. Masterson is going to do, she says. If he chooses to remain silent you cannot use that as evidence of guilt in any way.

Then she brings up jury nullification, a juror ignoring the law or instructions and voting their conscience.

"I call it juror misconduct. You cannot disregard the law."

She then turns it over to the attorneys.

Philip Cohen begins for the defense.

Now you know what we've been doing for the last week, whittling down from 225 potential jurors. We've whittled it down because they indicated they couldn't be fair -- the best answer anyone can give.

To the remaining people: Honestly I would say congratulations, and I don't say that lightly. For us who work in this forum every day, and for Mr. Masterson, this means everything. You have a chance to really do some good. How do we go about doing that? If I do my job right, we get to a fair jury.

"Voir Dire." French, translates. "To speak the truth." There is no bad answer so long as you speak the truth.

We all stand up when you guys walk in, we stay standing up until you sit down. It is truly a tribute, to what you stand for and what you're going to represent in that box. It is the foundation, truly, of our criminal justice system. And if one juror doesn't follow the rules, that foundation is no longer strong.

All I ask you to do is tell the truth. I'm going to be calling on some of you by number. I want to hear from anyone who wants to tell me something.

Juror 214, you said something this morning, "everyone has biases, more than they want to admit." That's brilliant. And I'm going to use that and credit you from now on.

Is this the right case for you? There are three big areas that the government is going to focus on...

1. Date or acquaintance rape. He's charged with forcible rape, but they knew each other. Cohen also mentions the MeToo movement. “Who feels so strongly about MeToo that it's [the case] not for you?”

2. Rape by force or fear, testimony that segues into domestic violence.

3. What's Scientology on trial for? What are they charged with? Well, they're not. (Objection, sustained.) Scientology is not a party but you're going to hear about it.

Whether you feel so strongly about your religion or so strongly against other religions, that's going to be an issue.

Can I get a promise that you will tell me if you have an issue with any of the three? "Yes," from jury.

Presumption of innocence: He asks them to imagine three big glass jars. (Holds his hands up about five feet high from the ground.) A red line at the top of each of those jars. Those jars are empty. Every time there is evidence, you can put some sand into that jar. Sand is evidence. As evidence grows, how high does that sand get?

Does that sand ever reach that red line? That's proof beyond a reasonable doubt.

So my question is, does anybody think that Mr. Masterson probably did something, probably is guilty of this charge in order for us to be here? Nobody? That’s perfect.

He gives an example of the presumption of guilt: you see a CHP officer light up a car in front. What’s the first thing in your mind, Juror 81: I wonder what they did. Juror 57: What'd they do?

There's no police siren in this case, but Mr. Masterson has been charged, Mr. Masterson is sitting in trial.

Anybody might think, he probably wouldn't be here if he didn't do these rapes?

Juror: I think he can be charged and it's not true.

"Perfect," Cohen says.

Any juror think there's any sand in the bottles?

We all do this. You see a news story. Why'd he have to do that? Guy arrested in handcuffs. I hope he gets a lot of time. That's the way we think.

Three women are going to take the stand, swear to tell the truth, they are going to tell you that Mr. Masterson raped them by force or fear.

Juror 1, any sand in that jar? No, there's no evidence presented yet.

Juror 30, I know you work at TSA. Do you have any issue with that? No.

Juror 1 again. MeToo movement. "We believe her." Does it mean anything to you in particular, the specific charge, three women are saying the basically conclusion. It doesn't matter how many, five women, we haven't heard anything yet so we can't say either way, guilty or innocent.

Juror 16, I know you had some friends were both potential victims and accused. What do you think about Juror 1's answer. I think she was speaking factually, I agree with what she was saying. MeToo has enabled women to speak out, but with all good things, not everyone has spoken the truth. We have to wait to hear everything to give an honest assessment.

Juror 16, If it hadn't been proved beyond reasonable, would it be difficult for you to go back to friends and say, “I sat on a three-rape case and found it not guilty?” No, I would hope my friends know I have integrity with the law and my job was to be fair. I know they would know me that I had respect for the law.

Cohen: Rules are very different in a court trial than in the outside world.

Juror 72, You had a sister... she was date raped. "Men can be falsely accused," she says. But she also says she can be objective.

Juror 84: The only problem I have is what has taken so long to come forward.

Cohen: If you are lucky enough to be on this jury, you'll hear all about it. He adds that none of the attorneys can get into that now.

Cohen: The charge in this case is rape by force or fear. A concern as a lawyer is that a jury may not like a defendant or not like what they hear about a defendant. How they speak, how they act, their religion. Then use that emotion or feeling (which have no place in court) to use those attributes to find them guilty. That's a big concern in this case. ‘He's not a great guy, didn't treat them nicely.’ I'm going to use that as a foundation to convict on this charge.

Juror 24, you hear testimony that Mr Masterson is a horrible guy, rude and crude, coarse, unfeeling. But you don't hear what you consider to evidence of forcible rape... "He could be those things without being guilty of that charge."

Cohen: The elephant in the room, Scientology. I only have one question for you as a group. Mr. Masterson is a Scientologist. The three women alleged victims were Scientologists at the time of incidents.

Does Mr. Masterson's former and current relationship and involvement and status as a Scientologist have any impact on how you view him with respect to the government's burden of proving charges? This is something I really need to know.

The women as well, former Scientologists. Does any of that play into how you perceive them, believe them, and look over here at Mr. Masterson?

Please, this system only works if you follow her honor's rules. And one of those rules is there's no bias. There's no sympathy. There's no emotion that goes into your decision.

This foundation cracks if even one person goes into that box and says yeah, (Obj, sustained argumentative)

Burden of proof. It is the govt's burden to prove everything. Ms. Goldstein doesn't have to say a word, I don't have to say a word, we can sit back and say ladies and gentlemen, the governmentt didn't prove its case.

That's the burden of proof. Proof beyond a reasonable doubt. An abiding conviction in the truth.

Here's what I do know it means. If you say to yourself, Yeah, he probably did it. Juror 23, you're done with this trial, three weeks into it, yeah, Mr. Masterson probably did it?

Juror23: If there's not enough evidence to prove beyond a reasonable doubt, then I would have to go with the law and say he's not guilty.

Juror4: You have to follow the rule of law, only use the evidence to make your decision.

Cohen gives an example of a juror he heard from after an acquittal: "We think he did it, but the government just didn't prove it." What verdict is that? Not guilty.

The other important jury description. The circumstantial evidence.

But there's another instruction that goes with circumstantial evidence, when you are dealing with circumstantial, and there are two conclusions you can reach, both are reasonable, you must (Obj, sustained)

The instruction tells the jury if there are two reasonable conclusions, you must choose the one that points to innocence. The tie goes to the runner (since we're going with baseball analogies.)

If you can't follow the rules, you can't be a juror. If you can't follow the rules, it's jury misconduct.

Anyone have a problem with that? No hands.

I know we have a number of people who work in psychology. Primacy and recency. We tend to believe the first thing we hear and the last thing we hear. Primacy and recency.

The government, they get to sit next to you, I'm way down here. (Obj, sust)

They get to go first in opening and last in closing. My problem is... (Obj, sust)

Does anyone have a problem that they have to hold off to a conclusion until you hear from govt and defense? Should that be a concern with anyone? No hands.

Does anybody believe that Mr. Mueller as a prosecutor, and Ms. Anson as prosecutor, representing "the People of State of California," working for the govt, that they have more credibility than a defense attorney?

Juror 30, you work for government. Do you think a prosecutor has more credibility than a defense attorney? No sir, I do not. I think both teams are trying to win.

Juror 102, you had a nephew that was a defense investigator? In Texas. Should I be concerned about that? No. It makes no difference.

Juror 103, you worked for LAPD for a few years. There's a bunch of LAPD officers named on the witness list. “I didn't know any of them.” I'm not so concerned if you knew any of them. I'm concerned that a law enforcement witness comes to the stand with more credibility. “No, they're all the same to me.”

If we all should be treated equally what about a woman making an allegation of rape? Should she get a head start? No, they're all equal.

Juror 49. What do you think about that? Alleged victim taking the stand. And what type of credibility they start with. I would say the same. Do you think why would a woman put themselves through testifying in court and going through trial, being asked questions, in case there was some merit to them? Yeah, I have thought about it. It must be a conviction of theirs that they want to be up there.

Do you think there's any sand in any of those jars? Anyone think there is?

Juror 138: I think there might be especially if someone is wiling to testify to being raped.

Anyone agree with that? There must be some sand in the jar.

Juror 92: (Man) I consider myself a feminist. (He says that any woman willing to testify in such a trial deserves consideration.)

Juror 92, Can you follow the law and be fair and impartial?

Juror 92: I think it would be difficult.

Cohen: The court is going to give a jury instruction that you have to follow a presumption of innocence. Even hearing those instructions, will that be difficult for you?

Juror 92: I think so.

Cohen: That is voir dire. Thank you for speaking the truth.

Juror 84: I think there has to be some truth unless they're just jumping on the bandwagon.

Cohen: Three women under oath. So does that give you the idea that there must be some sand in the jar? Should it be a problem for me?

Juror 84: Yeah, it's going to be a problem

Juror 84 and Juror 92 have been extremely candid, not easy in a group like this.

Juror 210: My three jars are empty. when we see the testimony, we'll see where the sand goes.

Cohen: Thank you.

Raise your hand if you were on a hung jury? (Cohen then quizzes several of them about those cases.)

You've heard about the charges, you've heard about the time it's going to take, you've heard about how hard this is. Is there anyone who just doesn't want to do this?

(A few speak up that have hardship issues.)

Cohen is done.

Taking afternoon recess. Just ten minutes.

Deputy DA Mueller's turn...

We are nearing the end of this process. I want to thank you all for going through this. It's a very important commitment that you're part of.

I don't have quite as many questions. But I do want to follow up just a bit to the responses in the questionnaire.

I do want you to know kind of on the up front, there are no right or wrong answers. This is really about your time to be open and honest with your views. That's what this process is about.

My goal is not move you one way or another. It's to see where you all are before moving forward in this process.

Wants to say something about himself on the upfront.

I grew up and was raised on a very large ranch in the Pacific Northwest. As a kid we had a couple hundred acres of field. Alfalfa, oats, all those crops had to be harvested. As a kid growing up, I was around a lot of big, heavy equipment.

Cohen objects. Judge Olmedo: I'll just give you a little more.

Mueller: I recently learned being around all this heavy equipment has created some damage to my hearing. So if I tend to ask you to repeat a response, it's not because I'm trying to make a point, it's because I'm trying to hear it. So please speak up.

I want to bring up one thing. Mr. Cohen had touched on with some questions and response about both teams wanting to win.

This is not about teams. This is not a sporting event. The one word I didn't hear was “justice.”

What you all are here for is to ensure this is a fair and impartial process so justice can result.

Both sides have rights. Mr. Masterson has his rights. The named victims they have their rights.

We're here to find justice. this is not about winning or losing or teams.

If you are chosen as a juror, as the judge had mentioned before, you are the judges of the facts. What that means is that if you're seated in this box, there are going to be witnesses, one of your roles is to determine the credibility of that witness.

Let me ask Juror 110: What types of things are you going to look for to determine the credibility of a witness?

Juror 110: Consistency. That's one of the things I use in my own life. Whatever someone is saying on the witness stand, there's consistency, they don't conflict with what they've said.

Juror 106: Based on the evidence that they present. I would want to feel that there is truth beyond a reasonable doubt.

Imagine someone up there. Is there something that might grab you, signs that they are credible?

Juror 106: I studied sociology, I would look for body language. I would be looking for honesty, integrity.

Juror 30: I would be concerned with the evidence presented, whether it made me feel if it was true or false, I wouldn't look at how the person looked on the stand.

Juror 120: I was just thinking of clarity, how clear does the witness answer the questions. I'm looking for precise answers.

Excellent, thank you.

What about motive? Do you think motive is something you would consider about a witness testifying?

Juror 6: I definitely would consider motive. Witnesses, victims, have a motive to be here. Whether it's justice or monetary motive, I don't know.

Juror 24, do you, just in general, do you think that a witness testifying might have a motive to be untruthful or to lie?

Juror 24: I think anybody coming to testify is sharing their truth. I don't know that anyone is going to come up here to not tell the truth.

Juror 138, could you perceive that someone would get on the stand and not be truthful?

Juror 138: No, I think they would speak from fact.

I think it was Juror 84 had raised the question, why did it take so long for the victims to come forward.

So now for all of you, you've heard the judge earlier, who read the information, the charging document. Three counts of forcible rape. She told you the date of the incidents. Range was 2001 to 2003.

Juror 84, when you first heard that, what was your reaction?

Juror 84: It seemed like a long time had passed, that's why I referred to MeToo. What happened to a speedy trial?

You mentioned the MeToo movement, is that significant to you?

Juror 84: Mentions in relation to Cosby. Says something about it (MeToo) being a little out of control.

Mueller: If you heard that one of the victims had reported before, would it change your view?

(Obj, sustained. No evidence allowed yet.)

Juror 210, Same concern, that these incidents are from 2001-2003 range?

Juror 210: My opening is our country has the best system in the world. They have rights, just like the Boy Scouts, altar boys, and as a juror you have to put it on a scale, and what weights more and what weighs less. Juror has to take good notes and pay attention. I don't have a problem if it’s 5 years or 20 years.

Judge Olmedo interjects: You've heard some objections. Both sides know they can't introduce evidence in voir dire. We need to know, can you keep an open mind that's fair to both sides?

Mueller: Anybody here who believes that it is in any case, unfair to prosecute a person for a sexual assault that was committed more than 15 years ago"? Anyone have that opinion?

Juror 141: Statutes of limitations. I don't know if it would be too late.

Mueller: This case would not be here if there was a statute of limitations problem. Does that change your view? Would you have a difficulty judging a case that was committed more than 15 years ago?

Juror 141: No.

Anybody? I see no hands.

Can anybody think of a reason why a victim of a sexual assault might not immediately come forward?

Juror 182: Scared? Retaliation?

Juror 94, do you believe that alleged victims of a sexual assault would automatically report the crime?

Juror 94: No. Every person is different. Fear.

Juror 147, do you think it makes a difference in coming forward, by who has committed that alleged assault?

Juror 147. Could be. If they were a powerful person. A person of stature.

Juror 195, what about if there's a relationship between the two?

Juror195: That would make it more complicated for sure.

Juror 23, you said all evidence needs to be showed to me. If you're selected you'll be evaluating the evidence as it comes in. Are you going to be a person who might say at the end, I've heard a lot but I still have one question about some evidence that should have been there?

Juror 23: I believe I would be a person who took the evidence that was presented, if I had questions about certain things I would definitely ask, and looking at all the evidence and going from there.

Let's talk just quickly about memory.

Juror 67, someone perhaps testifying and perhaps forgetting some details from an event. Would that automatically create some reasonable doubt in your mind?

Juror 67: I don't think so.

Juror 54, are there reasons why someone might forget details? (Obj, sustained) If someone testified and under questioning not remember some details of some event would that automatically create a credibility issue for you? (Juror 54: no)

Juror 82, is there anything about this case that's going to make you think this is an unfair process? (No.)

Show of hands, anyone think this is going to be an unfair procees? No hands.

Lastly, the burden, prove beyond reasonable doubt, that's not 100 percent certainty.

Does anyone feels that they need 100 percent certainty, and not be able to consider that standard? No hands.

Mueller is done. Judge Olmedo orders everyone back at 8:30 am.

She says a jury will be seated "mid-morning," and then opening statements will begin.

Jury out.

---

Thank you for reading today’s story here at Substack. For the full picture of what’s happening today in the world of Scientology, please join the conversation at tonyortega.org, where we’ve been reporting daily on David Miscavige’s cabal since 2012. There you’ll find additional stories, and our popular regular daily features:

Source Code: Actual things founder L. Ron Hubbard said on this date in history

Avast, Ye Mateys: Snapshots from Scientology’s years at sea

Overheard in the Freezone: Indie Hubbardism, one thought at a time

Past is Prologue: From this week in history at alt.religion.scientology

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