As jury looks at Jane Doe 3, let’s keep in mind Cohen’s statement about unconscious rape

[Attorney Philip Cohen and his client, Danny Masterson]

This morning, we expect it to take quite a while for the Danny Masterson jury to get back to deliberations.

The jury has requested a read-back of testimony by Jane Doe 3 about the November 2001 incident in her case, the one that Masterson is charged for, an alleged forcible rape that included her having to pull on Masterson’s hair to get him off of her.

And the jury’s request was pretty broad, which is why we expect that the first hour this morning will be taken up with the two sides arguing over just what testimony to include and what to leave out. And then, the read-back itself could take hours more.

At issue is that when Jane Doe 3, who had been in a six-year relationship with Masterson, went to the Church of Scientology to report that he’d raped her, it was for a different incident: Her allegation that in December 2001 Masterson had raped her anally while she was unconscious, causing her injury.

In his cross-examination, defense attorney Philip Cohen made much of the fact that in 2011, when Jane Doe 3 first told her husband Cedric about what had happened with Masterson, and then in 2016 when she first went to law enforcement by approaching the Austin Police Department, that it was the December unconscious sodomy that she was reporting, not the November 2001 hair-pulling incident.

This is significant, because Cohen and the Deputy DAs prosecuting the case know that Masterson cannot be charged with the December 2001 unconscious sodomy in this trial because, since Jane Doe 3 was unconscious for it, it doesn’t fit California’s definition of “forcible rape,” which must include overcoming a woman’s will through force or fear. And for the particular law that the DA’s office is charging Masterson under, the “One Strike” law that allows them to get around the statute of limitations, forcible rape is required.

So Cohen has focused his cross-examination on the fact that the November 2001 hair-pulling incident, which does fit the definition of forcible rape as Jane Doe 3 described it in her testimony, was more of an afterthought and was even embellished, Cohen suggested, in order to fit the case since the unconscious sodomy didn’t.

We know that people are generally horrified when we tell them that the December incident, with Jane Doe 3 attacked while unconscious and bleeding, cannot be charged as “forcible rape.”

But Cohen is not only aware of it, he made a rather horrendous statement about it during an October 3 pretrial hearing.

Cohen was very open about it: If Masterson had simply knocked these women out cold with alcohol or drugs, then they wouldn’t be having a trial.

“We would love this to be a rape by alcohol or drugs case because it wouldn’t be here,” he said.

So during his cross-examination, Cohen did his best to bring out that Jane Doe 3 had referred to the unconscious sodomy as “the rape,” and that the November 2001 hair-pulling incident had come up later, and he suggested that it was embellished for trial.

That’s the material that the jury will be hearing today, and we don’t think they will be hearing a read-back of what Deputy DA Mueller said in his closing argument, that Jane Doe 3 had reported the December 2001 unconscious sodomy because it was so unusual, and she hadn’t initially reported the November 2001 hair-pulling incident because it was something she was more used to from Masterson and didn’t think of it as rape at the time.

Did Mueller make that distinction forceful enough? Or will Cohen’s focus on the unconscious, and uncharged, sodomy make the jury question the November 2001 incident?

We may find out with some verdicts later today, or tomorrow? We’ll see.

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The jury wants a read-back

Yesterday, we put out a couple of short video reports, including one at the end of the day in which we got a little heated. Here’s the YouTube version as well.

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