Evidentiary hearing, June 7, after the first break
We're back from the break.
Judge again tells Cohen and Holley that they can stay or leave.
Cohen: I would like to make one statement. I listened to the court's reasoning for compelling an attorney to testify...
Judge: To me this is really straightforward, I believe my words alone provided a lawful court order to prevent sharing of discovery. And there is statutory scheme, Marsy's Law...
Cohen affirms what he told the court earlier.
So Cohen and Holley are leaving.
Judge now telling Matthai and Crowley that she's not going to compel their clients to testify. She wanted to make sure their clients have the opportunity to testify if they want to.
She says the only thing that needs to be addressed are the transcripts she has given them.
Matthai: I disagree that we have notice, it's only this morning that we've heard the court's reasons. These are very complicated issues... statutes involved, Marsy's Law, and whether or not there was a prohibtion and how material was shared. I am glad the court is not going to question my client. Atty-client is very tied up in this matter. Points out that her client (Mesereau) has been out of the case for more than a year and has no knowledge about Ms. Podberesky's letters... While we did get a list of documents, it wasn't helpful because it was only a list... My client should have the opportunity to review the documents themselves. Without that ability, my client is unable to respond, particulary in the context of transcritpt statements the court is relying on that it has issued an order on this.
As to those trancripts, I did not go through the Sep 2022 transcript because my client was not in this case then. My client was certainly not aware of anything that was said in that hearing. I have read the other transcripst that the court has cited. I respectfully disagree that those words can constitute an order... (There was discovery that was not allowed by this court for civil lawsuit.) The underlying assumption that the information was something Masterson had... the court made a numbrer of statements taht it would not allow certain discovery, and it didnt happpen.
What was shared was discovery that was allowed, and I don't see any transcript about how it could not be shared for the civil action. And whatever communication occurred, whatever did or did not occur when my client was counsel was covered in broad atty-client privilege. He cannot waive that privilege. The case law the court has cited does not support sanctions in this case. Typically in those cases there was in fact a definite order, "thou shalt not disseminate information."
Cites the Aug 9 trancript. The court is saying I'm not going to allow this discovery because it was related to civil case. I saw nothing about the court saying you cannot share the discvoer that was allowed.
Cites case law examples. Referring now to the court's assertion that it can sanction. She brings up contempt proceedings and the rules of them. More case law. No sanctions under Marsy's Law, she says. Could only find one case (unpublished) about the attempt to sanction under Marsy's Law.
Mr. Masterson is the client here. (She points out that Masterson is defendant in both criminal and the civil lawsuit, and so anything shared by his attorneys is covered by attorney-client privilege.)
The discvoery is going to Mr. Masterson, and Mr. Mastrson is a defendant in both cases. That was not addressed when my clients were in the case.
Judge: I think I did state in one hearing that there was no joint defense in the criminal case.
Matthai: The court cannot find that Mr. Masterson is not a defendant in both cases.
Judge: Right, but the Church of Scientology Interanational, is a third party.
Matthai: Mr. Masterson is not.
Judge: I agree with you.
Matthai: Mr. Masterson is a party in that lawsuit, and that the discovery is being shared, I don't see an order in your transcripts that provided communication of any kind between the lawyers in the two cases.
Judge: So, I'm not hearing you address (penal code citation), which is the criminal discovery scheme. It is a statutory scheme. And I have to say, whenever I sign a protective order, it is generally to keep an attorney to give a copy to a defendant in custody to prevent him from ordering a hit on another person.... WE just generally don't issue protective orders pro forma, because in a criminal case we expect attorneys not to share that information. But I'm heering an argument that is more about civil cases...
Matthai: That goes back to my statement we need to see the content of these documents so we can determine what it is, and what if anything was passed where. I can't tell from a list, that's number one. Number two, I'm going to let Mr. Crowley address it more specificaly, (again she cites Masterson being in both cases). When my client was in the case it was my udnerstanding it was unclear hwo much of the civil case was going to come into the criminal case. That was an open question when my clients were in the case.
I understand the court's statement about protective orders when it comes to gang cases, but here that issue was discussed and there was a proposed court order sent by Ms. Appelbaum, it never got entered, and ultimately there was no protective order. So there was no protective order and no statement that you cannot share these documents. And absent those orders it's our position it would be inappropriate to sanction our clients.
Crowley: The lack of notice. The cases you cited, I was only familiar with one of them. I looked through these transcripts. I don't believe that anyone would have been put on notice that there was any prohibition with sharing the information.
He's saying he'll save his comments if she'll let him write out something on all these issues.
Judge says she is denying a request for continuation. If you want to make arguments, make them now.
Crowley points out that they sent an email to the DA and didn't get a response. And he's saying now that what came from the DA's office was a list that marked some of the information was "unsure" whether it was from the DA.
Judge: If there are 570 pages and they're unsure of 35 of them, that doesn't change the calculus.
Crowley: I have no idea to that factual matrix becasue we haven't seen the documents. We're proceeding not being able to see the docments that hte court says is a violation. I'm in the dark as to what is the court order, and I'm in the dark what is the violation.
Judge clarifies that she has the inherent power to hold this hearing, not to impose sanctions.
Crowley I would just like to address each one of the points made by the court (what case law Judge Olmedo had referred to).
Judge: The defense position is, regardless there's no violation because Mr. Masterson had the right to share the discovery beasue he was a defendant on the civil lawwsuit. Even with a court order.
Matthai: That is correct, especially since, when I read the transcdrtipo, it comes accross to me, I see the court as saying, I'm not going to give you this, because of an assumpition taht it's goin to be a part of that mix. So it was limited, but it didn't say, you cannot give it to them.
There's a long road between when Mr. Mesereau was out of the case and when this letter was sent to the DA's office. And has documents in it that we don't know the content is to be able to determine if there's some violation.
Crowley: One final thing, in hoping to tantalizing you what briefing could bring to the table, we think what has been filed to the court contains factual errors. I would hope a briefing may proviee to the court an accurate factual statement as to what the questions the court answered.
Judge: Mr. Mueller, and then Mr. Kusera?
John Kusera introduces himself as a civil attorney for Jane Does.
Mueller: Describing again the in-camera hearing with Det Vargas. And that the request for surveillaince footage was denied. That the privacy interests of hte victims overrode the privilege. Mr. Mesereau then referred to civil lawsuit, and the court then responded that that civil case is not part of the criminal case, and it was separated. The court went on, saying we are not going to litigate the civil case...
In the Church of Scientology, dated Apr 24, 2023, they acknowledge that the folders correspond to information that Vragasa had given the court in that in-camera hearing. And if you see the report, the documetns are in direct contravention to the order the court had given. It's clear why these documetns were turned over, the purpose of them...
Judge: And that being.
Mueller: That there's an attempt to intimidate the law enf officers, the victims in this case, and just by the nature of the letters, the timing of when thee were presented to Chief Moore, even before the victims had testified. This is the concern these victims had all along, that the C of S would harass and intimidate, turning over these documents to that institution? The result of that is what we see here in all these pages.
Judge: And when you say that there's an intention of harassmetn or intimidation, you're talkign about the C of S and not Mr. Meserreau or Ms. Appelbaum.
Mueller: That is correct.
Judge: Did you want to address the notice issue? And also that Ms. Podberesky is not a party to this case, so the court doesn't have the jurisdiction to order her to this hearing.
Mueller on the notice issue: This hearing has been on calendar for some time. I made the issue clear on May 10, and on that very day the court had set an order to show cause. I've had no request to see the documetns, I've only had a requst if I believed ther was a protecdtive order in place, and if I was awaware of any violeation of statemeent. I got those yesterday. I bleive there was an email sent on Monday. There was no request about any of the documents at that time. I have them all here. If there's any one specific question about any photo, I have them all tabbed.
Judge: Did you want to address the ideea of Masterson on both casses.
Mueller: I'm not aware of any ability to do that (share criminal discvoery with civil case). Cites some statutes. There are actually state constitutional concerns. A chilling effect. If someone were to give statments to law enforcement, if it would not be shared only with defense -- you wouldn't hav epeople comeing forward. These are experienced lawyers, they know this. These are rules that have been around for a long time.
Especially knowing who that third party is, and what their relationship is to these victims.
Simon, attorney: We represent Jane Does in civil case and Marsy's Law. We have some requests. First, in the event of future hearings, given notice and ability to appear. Second, if there's any briefing, want the right to submit amicus briefing. But most important they want access to the discovery turned over to the defense.
The ongoing civil case has been stayed. There's no reason for the defense to share the material with the (church).
We have reason to believe that information provided by the state to the defendant has been used in the ongoingn harassment campaign by the civil defendants. Says that it is being used to compromise their security, and so they want acces to the information.
We join in the state's request that documents be ordered destroyed. We woulud also ask the court issue an order preventing the people in possession from sharing them. ASking for a TRO, ordering Ms. Podberesky from sharing the documents.
Finally, to the degree that the state is conducting an investigation in how this information was shared, we ask to be informed.
Judge: Matthai and Crowley have the last word.
Crowley again asking to seeing the documents. Referring now to what the DA is saying is proper notice. Again he's pitching that they give him the discovery and allow him to write a brief.
Matthai is saying again that the court was not allowing discvoery in the criminal case that wouuld not be used in the civil case, but that there was an assumption that anything provided to Masterson would be used however he wanted. Now she's referring to the redaction -- that if there was information that needed to be protected, it had been redacted. Judge reminds her that Mueller had talked about an address on a photo, and now Matthai is referring to that more as a mistake by the DA's office.
Judge taking 15 minutes and then she says we'll get her ruling.
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Am I missing something? I’m reading pretty fast in between appointments, but I don’t see anything saying who actually did the sharing. I mean, it seems as though the attorneys arguing it was ok to share know their clients did it but no one says who did.
Thanks Tony! Notice how Mueller is specific and everyone else is vague 😭😂.