I'm here in Judge Selna's courtroom for another day of jury selection in Michael Avenatti's client theft trial, and Selna right now is taking up the motions filed yesterday regarding. He's rejecting the trial continuance motion because of covid Delta variance now.
"I believe we can take adequate precautions to ensure the safety of everyone," Selna says. He says he will read the jury pool the instruction regarding covid protocols and what to do if feeling sick.
Selna also rejects Dean's suggestion to move jurors to the federal courthouse in Los Angeles, calling it "an impermissible burden." He says the audio and video in the other juror rooms in the OC courthouse is working well after Friday's mishap.
Regarding the request for an evidentiary hearing about @JulianLAndre's tweets, which are followed by @USAO_LosAngeles. Selna asks if the DOJ "specifically imposes an obligation with respect to communications by a former Department of Justice employee?"
Dean says no, only the California State Bar rules. Selna says he'll asks the jury pool today if they've been exposed to any social media or other coverage of Avenatti over the weekend. Prosecutors don't object...
But AUSA Brett Sagel says in a case of bad-faith filings, "yesterday's filing was maybe one of the worst."
"What was left out of their motion and what was claimed in their motion, factually and legally is frivolous," Sagel tells Selna of the @JulianLAndre motion. He notes that Dean made no mention of the fact that Andre had six followers.
Judge Selna to Dean: "Do you dispute that Andre only had six followers?"
Dean boldly states: "That's not how Twitter works. Well, it's 9 now." (An obvious reference to my tweet; it's actually upwards of 26 now as of this morning.)
Dean boldly states: "That's not how Twitter works. Well, it's 9 now." (An obvious reference to my tweet; it's actually upwards of 26 now as of this morning.)
Dean says he doesn't have a Twitter account but he's been "schooled on this." He claims that whenever @JulianLAndre tweets, goes out much farther than the just his followers. (No, it actually absolutely does not.)
Dean says people can search "Avenatti" and Andre's retweets "could go to thousands of people. We don't know. That's one of the reasons we were looking for a hearing here."
"We'll bring in an expert on social media who can explain this better than me. But just saying they've got six followers is very misleading," Dean says. (Cue all those DMs Avenatti sent critics with puny follower counts.)
ASUSA Sagel notes that Dean says he doesn't have a Twitter account because you can't see retweets or likes without an account. "Which means Mr. Stewart wasn't the one looking at that. And we know someone else in this courtroom is prohibited from going online.." Dean erupts!
"Oh stop it! Stop it, Counsel!" Dean says. Judge Selna: "You may speak when your opportunity is afforded to you and it certainly will be sir. Do you understand that? No more interruptions or outbursts." "Understood," Dean says.
Dean says @USAO_LosAngeles is one of Andre's six original followers "and their role in this is critical." He noted that Andre shared this @lawdotcom article about things that "have been specifically included by this court." law.com/therecorder/20…
"Does the U.S. Attorney's Office have an obligation to monitor the public statements of its former employees?" Selna asks. "I would say no, but they are clearly doing it here," Dean answers.
Judge Selna again says the main issue here is whether jurors saw any of this. "If not, then whatever else went on is irrelevant. So that's how I'm gong to go at this." If any of the 118 or so indicate they've seen something, they'll do individual voir dire.
This is how serious Judge Selna is about seating this jury today: We’re only getting an hour for lunch instead of his standard 90 minutes. 🤨🥪
Alright the first group of jurors is in the courtroom. Selna asked them if any of them have heard of Julian Andre. No one says anything. He went to the other jury rooms and the same thing happened. Just blank stares.
Judge Selna told the final room of jurors he believes they'll find today fairly efficiently run. (We'll see about that!) He also says he enjoys this part of the trial because entertainment seems to "just spring out of the walls."
This touch of humor from the always straight-laced Selna reminds me of my favorite part of my 2017 LA Daily Journal profile of him, the part about how he and his judge friends like to get together and reenact Shakespeare in backyard booze fests. dailyjournal.com/judicial_profi… 
^^^straitlaced 🙈😇
Group voir dire is underway, with Sagel asking qs. He's asking one man about his comments regarding prayer. Will his commitment to prayer affect his ability to decide this case based on the evidence? Another woman says she avoids the news because she can't decide what's true.
She basically says she has to see it herself to believe anything. Nothing is real unless it happens right in front of her face. Sagel is asking her about her penchant for true crime shows. She gets entertainment, but says there's also investigative value in them.
Sagel turns to a retired woman who actually used to be a clerk at the federal courthouse and knows both Sagel and Dean. She says nothing about that work experience will hinder her ability to serve. (She currently works as a case manager at @JAMSADR.)
Dean questioned two people who indicated they know of Michele Phan, a former Avenatti client who’s an alleged victim in this case, over an alleged stolen settlement. Here’s a great 2019 story from @finneganLAT on the Phan angle: lat.ms/3ipmskm
Focus is of course on whether they’d give Phan’s testimony more/less weight. Both say no. Dean turns to guy who used to work for @chargers
"Can you assure us they’ll be better this year than last year?" Dean asks.
"I sure hope so," man answers.
"We’ll hold you to that," Dean says
"Can you assure us they’ll be better this year than last year?" Dean asks.
"I sure hope so," man answers.
"We’ll hold you to that," Dean says
Dean turns to the guy Sagel asked about praying. Tells him there seems to be two jurors with him. "You and your belief in the holy spirit. Is that kind of true?"
"Uh, yes!" the guy says.
"Uh, yes!" the guy says.
Dean asks him what he'd do if he felt a man was innocent. Would he still pray for guidance from God on what to do in the jury room? The guy says yes, he would.
Dean: "Who here thinks attorneys make too much money?"
Nobody says or does anything.
"Anybody?" Dean asks. "Not my wife, certainly."
Nobody says or does anything.
"Anybody?" Dean asks. "Not my wife, certainly."
Dean: "How many QAnon supporters do we have here?"
-blank stares-
Dean: "Anyone that thinks they're on the right track?"
-blank stares-
-blank stares-
Dean: "Anyone that thinks they're on the right track?"
-blank stares-
We have a jury, but Avenatti stood up and said he has an issue he’d like to raise, as Dean desperately tried to get him to shut up. “Sit down, Michael!” Selna gives them moment. Now Dean says they have issue to take up before jury is sworn. (The joys of a lawyer for a client.)
Dean wants 10 to 15 minutes to talk this over with Avenatti. Selna gives them 15. The jury has been dismissed for lunch. i have no idea what this is about, but Avenatti and Dean are going into a conference room now.
Notably, Dean has someone with him for this case. A young attorney named Courtney Cummings Cefali, who in a big "small world" moment is married to a lawyer and San Juan Capistrano resident I wrote about for the Daily Journal back in 2016. dailyjournal.com/articles/253968
OK we're back. Dean tells Judge Selna that Avenatti wants to participate in his defense, and he has a right to do so. "He would like to address the court, and I'll leave it at that," Dean says.
Selna: "He wants to be co-counsel." Sagel says he can have counsel or be pro se, and he's always been able to participate. "Not having a speaking role does not deprive him" of ability to participate in his defense, Sagel says.
Sagel notes that Avenatti is not a lawyer right now, and he's definitely not a criminal defense attorney. Avenatti: "I am still a member of the bar. I'm under temporary suspension, just to be clear."
Selna tells him he can't appear in his court as a lawyer if he's suspended. Avenatti: "I want the record to be clear - crystal clear - this is not done for the purpose of delay or destruction or to derail the proceedings."
“My liberty is at stake. This is a very serious criminal matter.” Avenatti says jurors know he’s a lawyer, and they don’t distinguish between civil and criminal. “I am critically concerned that if I do not play a role in my defense, that that will be held against me.”
Judge Selna is going to take the lunch hour to mull this over, but it sounds like he's leaning toward what Sagel said: Avenatti can either be pro se, or he can have Dean as his appointed counsel. He can't do both. But Selna will decide for sure at 1 p.m.
One more tidbit: Judge Selna asked Avenatti who he envisions giving the opening statement, and he said "I have not admittedly thought about that." Which definitely does not translate to "my lawyer Dean Steward."
For the legal junkies, the case law at issue here is Faretta v. California. en.wikipedia.org/wiki/Faretta_v… #appellatetwitter
OK we are back. Selna says Avenatti wants to serve as a co-counsel, and the court has discretion when deciding whether to allow it. He's referencing case law now. Says the right of a pro se to standby counsel is not absolute.
Selna says he's not going to allow Avenatti to serve as co-counsel, but if Avenatti wants to represent himself pro se, he'll appoint standby counsel. Says co-counsel could lead to delay and confuse the jury.
Avenatti assures Judge Selna his work as co-counsel “would not be disjointed.” “It would be consistent. It would be finite. It would be directed, and it would not be confusing to the jury….It is certainly not in my best interest to confuse this jury in any way, shape or form.”
Wow. Avenatti just formally requested that Judge Selna allow him to act as his own attorney, pro se.
Selna is deciding if Avenatti is fit. Did he go to college? Did he go to law school? Did you receive honors? Avenatti answering all questions.
Avenatti: "I have made appearances in less than 5, maybe 2 or 3 criminal cases, your honor. I have never tried a criminal case." Also mentions his participation in the Nike extortion case in SDNY.
Selna: "Is it correct that you've never made an opening statement in a criminal case?" Avenatti: "Yes, sir." Asks about witnesses, evidence, jury questions, closing arguments. Nope to all.
"Sir, do you understand that those are serious charges?," Selna says. "No doubt, your honor," Avenatti answers. Selna asks if he understands the 10 wire fraud charges carry 20 years per count, total potential sentence of 200 years. Yes, he understands.
Selna warns of the dangers of Avenatti representing himself. Asks if he has expertise of the criminal judicial system. "I have knowledge of it your honor but I would not describe it as expertise."
Avenatti is standing and looking at Judge Selna while answering these questions, while Dean is starting off to the side, looking down and stroking his chin slightly.
Selna asks Avenatti if he's ever participated in a criminal sentencing, and Avenatti says yes, he participated in one a couple weeks ago in the Southern District of New York. Selna asks if he's ever done so as counsel, and Avenatti says no.
Selna asks if he understands there are pitfalls to representing himself. "Do you realize you may be too emotionally involved in the case to function properly in the courtroom...?"
"I understand that's a risk, your honor, but I have routinely shown proper decorum...to other courts when i have tried cases," Avenatti said. A few more questions after that but you get the point. Sagel is posing questions now.
Sagel says if Avenatti is going to represent himself, court shouldn't focus only on the wire fraud charges but also the tax and bankruptcy fraud charges that are to be tried in October. Selna agrees. Sagel says make sure he understands the "elements" of the offenses he's facing.
Sagel is going over the elements and penalties for the second part of the bifurcated case, the bankruptcy and tax fraud charges. Avenatti is acknowledging what Sagel's saying while also telling Selna he doesn't know this stuff himself, but he doesn't dispute what Sagel says.
A lot of questions about penalties for second chunk of charges. This is slow going and basically procedural, but I know I've got a lot of people watching so don't want to leave you all hanging. Selna hasn't formally decided whether to allow Avenatti as pro se, but he likely will.
Sagel notes that Avenatti has said there won't be a delay, and that openings will go as planned tomorrow, as well as witness questioning "100 percent correct, your honor," Avenatti tells Selna.
It's official: Judge Selna concludes that Michael Avenatti is indeed qualified to represent himself, so he's going to allow it. He appointed Dean Stewart to be Avenatti's standby counsel.
We're on a five-minute break before the jury comes back.
The jury has been sworn in. Judge Selna informed them that Avenatti is now acting as his own lawyer, which is his right, and they’re not to infer anything about it one way or the other.
Exciting news: The jury includes the guy with the bright blue hair.
https://twitter.com/meghanncuniff/status/1416078429120720899(At least that’s what the color looks like from my ivory tower.)
They still need to select four alternate jurors from a group of I think six. Avenatti is questioning one now about whether he can respect the presumption of innocence. Very methodic and kinda sharp tone to his questioning.
Avenatti's asking the guy about the fact that he gets news from right-wing news outlets like @RedState. If someone doesn't share your conservative values, would you apply same standards of justice you'd apply to say, Tucker Carlson?
Avenatti asks the guy if he believes government must prove defendants guilty "beyond all reasonable doubt." Judge Selna interjects: "Sir, the standard is reasonable doubt." Avenatti apologizes.
Avenatti: “Do you believe that innocent people are charged with crimes in America?”
Guy: “I think that does happen, yes.”
Avenatti: “Do you think innocent people are sometimes convicted of crimes they did not commit?”
Guy: “I think that does happen, yes.”
Selna says wrap it up.
Guy: “I think that does happen, yes.”
Avenatti: “Do you think innocent people are sometimes convicted of crimes they did not commit?”
Guy: “I think that does happen, yes.”
Selna says wrap it up.
Avenatti was able to get this guy struck from the pool of alternates.
Just got a text message: "More tweets. We have stopped working." I'm here for you, people! Stay tuned.
Sagel is questioning a guy who's last name I know but wont share. I'll just call him a guy. Unlike Avenatti, Sagel's questions are much more generic and he's obviously not worried about nearly as many issues as Avenatti is.
The guy Sagel is talking to has panic attacks. He's on meds and it's controlled, but he does know there are triggers. So he's concerned that if the jury ever had to wait out in the hallway, he could have problems. Avenatti questioning him now.
Avenatti asks him about his thoughts on the presumption of innocence. "I believe in my lifetime I've seen the moral fiber of American diminish," the guys says. He said people are very comfortable not telling the truth.
Avenatti asks if he means generally all people. "It seems the more they have at stake, the more money, the more wrongdoing, the more they aren't likely to tell the truth," the guy tells Avenatti.
Avenatti is very forceful and clear in his questioning. Not easy to describe, but that's what I keep going to. He's looking at the juror while standing at the podium, nodding and listening. Guy is talking about his panic attacks.
Avenatti asks him if he's had a "lingering concern" about whether this case was best for him, and the guy says only because of the length of time. Selna now asks him when the last time he had a panic attack is.
This exchange and the above tweets exemplify why a lot of reporters, including me, don't usually cover jury selection. A lot of strangers answering really personal questions. (Don't mind me, I'm just writing down everything you say and disseminating it to the public.)
Sagel just moved to strike the guy who told us all about his panic attacks. "God bless you," the guy tells us as he leaves.
Now Sagel is asking a woman about her past experiences with pelvic pain. The woman is letting us know about her other problems, too. (Active bladder!) She served on a jury once and needed "immediate access to the bathroom."
"I'm a sensitive character, and it can show up physically," the woman tells Sagel.
Avenatti starts by asking the woman: "Did you ever see the movie 12 Angry Men?" No, she hasn't. "It was a while ago, before both our time, I think," Avenatti says.
Avenatti is asking her about her ability to stay true to her beliefs. With input from other jurors, is she open to changing her mind? She said she wouldn't be swayed, but it would make her pause and think, "Have I really looked at all the facts?"
Avenatti asks her what she would do if she concludes she did indeed look at all the facts, and her conclusion hasn't changed. Would she stick with it? She says yes. Avenatti turns to a guy who works a forensic accountant.
Avenatti asks about work he's done investigating fraud in campaigns. Guys says he was working in defense of accused. "Did you like that?” “I found it interesting, yes.” “Did you believe in it, meaning your task, what you were doing?” “I’m not sure how to answer that question.”
Alright we now have our four alternates! They are being sworn in now. Two women and two men. We are adjourning now until 9 a.m. tomorrow! Jury instructions then opening statements.
^^^Dean Steward
Sagel just told Dean Steward the USA will continue communicating with him through email. As in not Avenatti.
“That’s fine, seeing how he doesn’t have email,” Dean says.
“That’s fine, seeing how he doesn’t have email,” Dean says.
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