ARGUMENTS OVER JANE DOE 4: Danny Masterson Trial, Day 16, lunch break report

[This report was produced live during a court hearing with a lot going on. There will be typos. Please don't email us about typos that you find.]

Second morning session.

Failed to mention earlier that joining Bijou in the family section is Mackenzie Phillips. That's entire Masterson family contingent today, just the two of them. (But remember, it's a non-jury, casual day.)

The attorneys have been in the jury room for quite a while now. Judge Olmedo has already come back in to see if they were ready to proceed, and then went back to her chambers.

Just to summarize a couple of things we heard before they went back there:

Cross and redirect of Detectives Reyes and Vargas will hopefully be mercifully short. And then the government gave this list of witnesses remaining, which needs to be completed by Thursday afternoon (no court on Friday):

Jane Doe 1's mother, Rachel Smith, Lisa Marie Presley, and Jane Doe 4.

We're disappointed, of course, that such witnesses as Marty Singer, Damian Perkins, Erick Geisler, and Binki Shapiro won't be called, but it appears that Judge Olmedo wants to keep things to the schedule she had told the jurors, that we would be done by Nov 18.

OK, attorneys are coming back out.

Judge Olmedo: Let's start with Ms. Presley? Anything to discuss?

Cohen: Not yet. We're going to table that to tomorrow.

Olmedo: Why?

Cohen: There's a transcript of an interview that just came in last night and we want to review it.

Olmedo: OK, let's have you come back tomorrow at 10 am. (Jury returning at 1:30 pm.) Ms. Smith? Do we need to discuss.

Cohen: I think we're good as long as there are some admonitions.

Olmedo: From the court?

Anson: No. I just need to talk to her.

Olmedo: JD1 mother?

Cohen: I think Mueller is still determining scope and potential documents. We're going to meet and confer again.

Mueller: We did discuss the scope, but we are discussing documents and which to seek to introduce.

Olmedo asks why she's coming in, and what is the scope of documents.

Mueller: In 2003-2004 she wrote emails to Scientology. And some witnesses here received copies of those letters. We're not seeking to introduce all of those, maybe one or two, when she first learned from JD1 what occurred, when she documented what JD1 said.

Olmedo: Entering that under what theory?

Mueller: Recording of prior consistent statement?

Olmedo: That is not a hearsay objection. For the letter itself, if there's an objection, be prepared. Also tomorrow at 10 am can discuss further. And with defense experts, did you have a discussion? (Mueller seems to hesitate.)

Cohen: We will have a final answer probably tomorrow afternoon.

Olmedo: But you don't need a hearing on admissibility of experts, you just want to know which ones they're going to use.

Mueller: Says he might have an issue with the toxicity expert, but not the other two.

Olmedo: Thursday jurors leaving at noon because one of them has a conflict. Can deal with 402s then. Worked out stipulation of the handgun?

Cohen: Yes. We've agreed upon the language.

Olmedo: The civil draft lawsuit, and $400,000 payment?

Cohen: There's the complaint, the draft complaint. With the draft we've met and conferred, the language we've put together is acceptable to the People.

Olmedo: I think the one the court had drafted, (Reads stipulation she's said before about Masterson signing agreement in 2004.) So I will give this back to you and you guys can write on the paper how you want it modified.

Cohen: And then we have the pending civil complaint. We're close, a bit of disagreement over two or three words. I would ask the court make that determination.

Olmedo: What's the disagreement?

Cohen: "JDs have filed a civil lawsuit against the Church of Scientology, Masterson and others, for claims of harassment for which they are seeking money for damages, the lawsuit is currently pending.”

Mueller: "seeking money." What they are seeking is a stop to the harassment.

Olmedo: I get that there's different wording that will have to be discussed, but a civil complaint is obviously seeking money.

Anson: What the government was just asking that it was "the civil complaint is seeking" rather than the JDs are seeking.

Olmedo suggests "seeking among other things money for damages..." etc.

Cohen agrees. Mueller agrees.

Olmedo: Let's deal with Jane Doe 4. I had originally kept her testimony out for time consuming, but you could raise it if it was more relevant. So go ahead.

Mueller: The defense position throughout is that JD1 was initially declined, that JD1 essentially colluded with the other victims to get the criminal case filed. And to support their civil suit for monetary damages. They use the term cross-pollination, clear what the message is, that all of these women have shared their stories to collude to have this criminal case, get beyond any statute of limitations issues. The People believes this opens the door for Jane Doe 4 to come in. She does not know JD1, she does not know JD3. She's not part of any civil lawsuit. She's been interviewed by LAPD, Det Vargas, by myself. She makes no claim of force. And that's kind of one of the issues raise by defense itself, that in interviews we've somehow introduced this notion if there's force your case can be filed. Well, she has been consistent form the time we've interviewed her there's been no issue of force. There’s one time she met JD2, in 2013. They had briefly known each other in the late 1990s because they were both actors. JD2 was in New York because her aunt had died, in 2013, while there, JD4 reached out and they had tea. And in that get together JD2 said she'd been raped. JD4 didn't do anything in response to that. But when the news media came out on this case, JD4 saw it, motivated her to contact JD2, said she had been raped. JD2 told her don't tell me anymore, you need to talk to Det Vargas. She did, and it was recorded. What she said was very similar. She was on a set with Mr. Masterson, wrap party, went to La Poubelle. Later Masterson had invited crew over to his house. JD4 got intoxicated, anyone drunk can spend the night. She did. She was on the floor, passed. out. Masterson comes in, picks her up, put me down. She said it was like a bear hug around the waist. Took her down the hall. She passes out and wakes up with him having sex with her. Second incident. He had come to her house and brought some alcohol, Jack Daniels or something, in a flask, she had some of that. Shortly thereafter she became very intoxicated, passed out, woke up and he was on top of her again having sex. The incidents with JD4, she times it because she knew when the movie ended, August 1996. Well, Mr. Masterson began his relationship with JD3 one month later, in Sept 1996. So I think the timing is very important. For all those reasons...

Olmedo: The second incident happened when?

Mueller: I want to say just a few weeks afterwards.

Anson: A month.

Olmedo: You can continue.

Mueller: Just to clarify, when JD2 was having tea, she did indicate that she had been raped by Masterson, but JD4 did not say anything about herself at that time. She let it be until later when this investigation became public.

Olmedo: Was she a Scientologist?

Mueller: Never been a Scientologist.

Cohen: I don't know what has changed since the court pre-trial ruling. The issue of collusion has been discussed throughout pretrial, the issue of denial of rape has been discussed throughout pretrial, so the court was aware of these facts for the pretrial ruling, and made very specific findings why JD4 was not in this case-in-chief. The court pointed out that it had already denied a severance issue. As it's played out at trial, the jury has heard about multiple rapes against JD1 because she now says the Sept 2001 incident is rape. The jury has heard about dozens of rapes by JD3, her position at trial has been that every time he had sex with her was rape. And the jury now has also heard about multiple rapes from JD2, who said it wasn't just one incident but multiple through the evening. So I harken back to the court's pretrial ruling, that the jury has now heard about multiple rapes, 20, 30, 40, 50 incidents with respect to the 3 women. Nothing has changed from the court's ruling. Those factors are the inflammatory content of non-charged issues. The amount of time involved, now with uncharged conduct, if it is similar enough to the charged offense. The other issue that I have in defending this case is, again, the testimony, the questions asked by the defense that Mr. Mueller is relying on, this argument about collusion, that is not new. That was known during pretrial and the prelim. If this evidence was going to come in just based on the defense's defense, which is what he seems to be arguing, then the fact that it was initially excluded, nothing has changed, and if it's now coming in it puts the defense at a severe prejudice. It seems to be that the defense could not have put on its defense without opening the door, according to Mueller. So it seems like an exclusionary order without any impact. If that had been the case the defense would have addressed it at jury selection.

Mueller: I think there has been a lot that has changed. The defense has heavily, heavily challenged the motives and biases of these named victims at issue. And the motives of law enforcement. They're challenging the investigation, the investigators, myself, almost as if we're leading them to some sort of force charge. And here you have a victim who has come forward and it's someone who can show this jury that this is not the case. She's someone who is not a Scientologist. She's not alleging there's force. She's been interviewed by the same detectives and DA. So to lot let the jury know that there is another victim who came forward with similar events, to not let them know this would be an injustice. And as to 352 issue, undue consumption of time, Jane Doe 4 can be here Wednesday to testify. And her time would not unduly consume time.

Olmedo: And did you give me the year that she called Det Vargas and JD2? I'm presuming 2016/17?

Cohen: 2019.

Mueller: I do want to also bring up that the defense has indicated how many times their arguments have been different than at prelim, different from Mr. Mesereau, for us to know what direction the defense was going, we did not know that until we started getting into this case, at trial.

Cohen: The defense in any case where it challenges an allegation of a victim is virtually always going to argue that there is a motive. That is not a surprise. That's part and parcel of arguing a case. So to say that something new and surprising has come up, nothing new has come up that you would see in defense of any case. As for the proffer, JD4 had read an Internet article about Masterson in 2019, and apparently that was the impetus for her discussion with JD2. She said she was not comfortable with labeling her interaction as rape, and that she had not thought about it since 1996. The court had ruled it would have to see the defense case in the ruling. The defense has relied on that ruling, from our perspective, I don't see how anything has changed to disturb the ruling of the court.

Olmedo: As relates to JD4 testimony I do want to go over the Oct 3/4 rulings, and some transcripts I want to review. I will do that at the lunch break and give you my ruling after that.

As for jury instructions, are you both comfortable with moving into that now?

I'm going to read off the numbers that I think are not going to be contested.

Judge Olmedo lists these jury instruction numbers, which can be correlated to the California code. They discuss some of them, but she says this is just preliminary.

200, 201, 202, 207, 208, and reference to Jane Doe names.

220, 222, 223, 224, 225, 226.

300, 301, 302, 303.

318, 332, 333.

355, 357, 358, 359, have to think about 370, motive.

375.

Some discussion ensues about multiple events.

Cohen: Based upon JD3 interviews, it is very difficult to make any determination about November. It's really not referred to. So the comment "it didn't occur," is easier to make when it's not brought up in her interviews when she began talking about it.

Olmedo: I have no doubt you will be arguing this to the jury.

Cohen and Judge Olmedo discuss this further, and Judge Olmedo said at the trial JD3 did give a very specific description of the Nov 2001 incident.

Cohen: But in the interviews, not.

Judge Olmedo goes back to the jury instruction numbers. She's glad to skip the 500 series (homicide).

1000. (Goldstein says there's a change in law to this. Olmedo says she will check that out.)

She goes over more issues and then to concluding instructions. More numbers.

She's up to 3500, 3501, 3502, 3515, 3517, 3550, 3590.

That may not be all, but that's pretty close to what we will be discussing.

Judge Olmedo: I will look up some case law, and rule on the People's motion for Jane Doe 4 after the lunch break. Then you will come back tomorrow at 10 am to review as it relates to Lisa Marie Presley and Jane Doe 1's mother.

Mueller: There was a question that came up on Friday on testimony on cross of Vargas, and whether we would be introducing recorded CD of interview.

Olmedo: Seems both sides have sought facts on the CD, and I thought it might be better for continuity, so talk with each other and see if both sides are agreeable. I don't know if there are parts of the tape that are inadmissible and will need redaction.

Cohen: The portion regarding the charged conduct is only a few minutes long. Like you heard the other side, just the last few minutes.

Olmedo: Yeah, if you only want to play certain parts. As an observer, it's painful to look at a witness citing reports, so for both sides it might be easier for the jury if you want to bring out what was said. Talk together and see if you can agree on those portions. And Mr. Mueller you have some time to redact out those portions. So then we don't have to listen to Det Vargas talk about his Covid. OK, we're at break.

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