COHEN BEGINS DEFENSE ARGUMENT: Danny Masterson Trial, Day 21, 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.]

Late morning session.

Billy Baldwin has joined the Masterson family section after getting a big hug from Bijou.

(Just one observation about the earlier session: Mueller seems much more forceful and organized than he did in his opening statement some four long weeks ago. The jury seems to be paying close attention.)

The courtroom is completely packed now. Full up audience section and media row.

Judge Olmedo returns. Jury coming back in.

Chynna Phillips has joined us.

Mueller continuing his closing argument.

Mueller: Jane Doe 2. She testified to one incident that occurred between Oct to Dec 2003. If you recall, she became familiar with Masterson again through this circle of friends. She had done some acting in a sitcom. She became a Scientologist at 16, at the encouragement of her mother.

She had an anxiety problem and her mother thought the church could help her with it. So she did get into the church about 16 years of age, and through that and becoming part of the Celebrity Centre as an actor, she was in that circle with Masterson. At CC, at parties, and perhaps at his house. But hadn't had any one-on-one time with him.

She was staying with a friend, Ms. Urbinati, who lived close to Masterson. Urbinati invited her to The Well, the little bar, and Masterson was there, Luke Watson was there. They were sitting in a booth and he began paying close attention to her. Staring. She felt flattered and intimidated at the same time. She wasn't sure what to think of it.

End of the evening he asked for her phone number and a couple of days later texts her. Tells her, come over and bring a bathing suit. It was a demanding tone. Get over here now. Come over or I"m going to come get you. Come over now.

She was confused. She wondered if this was his way to flirt. She said she would come over but she set boundaries. I'll come over and drink a glass of wine, but I'm not getting into your pool. she was 23 at the time.

She gets there, he has a glass of red wine for her. He tells her drink up, drink up. She was put off a little by that pressure, but she was taking sips. She asked for a tour around his house. He never really quite gave her the tour. What he did was take her around the back where there was a jacuzzi (shows photo). An above- ground jacuzzi. You're going in. No I don't want to go in. You're going in. At this point of time, this was some time after having the wine, maybe half an hour, she began feeling blurry, not quite herself.

She remembers going in, with her bra and panties. There was some kissing, getting intense, and perhaps some fingering. She's having a hard time remembering because of the impact of the wine.

He tells her to go upstairs to get in the shower. Why? She thinks its perhaps to rinse off chlorine. So she goes upstairs. She's not carried, she's not dragged. She walks upstairs to the master bathroom. All the while, she had given him conditions. She had certain expectations, you remember what they were? She was fine with some kissing. Let's talk, let's have some wine. She thought it could be a romantic evening, like a date.

Her mind that night was to have a date that night. But that's the last thing that happened. There was no date with Mr. Masterson. Conditions. And those things changed as he became more aggressive, but her absolute no was to have sex.

She was fine with kissing going in. When it came to fingering in the jacuzzi or the shower, it happened, she really didn't want it to get to that place, but it wasn't sex. Sex was her ultimate, absolute no. He gets her in the shower, there's kissing, he began fingering her. And she described it, she was softly saying no, we can't do that, but it was happening. But it was not sex.

Until he suddenly inserted his penis into her vagina in the shower. And then she freaked out. No, I told you no sex. He completely disregarded that. Remember, with Mr. Masterson no never means no. Despite that condition on the upfront, he was going to have it his way. You know why, because she was in his house, in his shower. So I'm going to do what I want, to hell with what she wants. And he puts his penis in her vagina, despite everything.

He then tells her, you need to go into my bedroom and get on my bed. And remember all this while she's not feeling well. Things are fuzzy and blurry, and he has this commanding, ordering kind of disposition, manner, like a drill sergeant I think she said. And she was now becoming anxious and scared. She worried this would escalate beyond what she prepared for. So she's taking measures to de-escalate things, to tamp it down.

So figures, OK, I'll get on the bed, I'll let him do some kissing. But I don't want the sex. So the kissing happens on the bed. Several times she tells him no sex. This, on the bed, is the charged offense. This is the charge for forcible rape. You can consider what happened in the shower, certainly, but this is the charged incident.

She keeps telling him no sex. He says, look at your face, look at your face, and what does he do? He flips her over and he starts penetrating her vagina despite everything. No doesn't mean no for Mr. Masterson, not if you're in his bed in his house.

He grabs her hips and he's penetrating her from behind, like a jackhammer she said. He was pounding her so hard she vomited in her mouth. Not quite the romantic evening that she had in mind.

He flipped her on her back, once again penetrating her. And then he flipped her over again, and penetrated her again. How did she feel? She said like a "frickin’ rag doll."

He finally ejaculated on her stomach, and then like the gentleman he is, got her a clean towel to wipe herself off.

This is rape. This is forcible rape. It's a rape by force, without consent. No way did she ever give him consent to do this. And he disregarded her wishes, and not only did he disregard it, he did it forcibly, horribly forcibly.

Now here's the thing. Afterwards, they stayed in bed for a period of time. They lay there talking until the morning. Despite this, and so you ask yourself, why? Here was this incident that just happened, it's a forcible rape, and they're laying there in bed and they're talking and talking. And then at 5 or 6 in the morning, she leaves the residence.

You might question that a little, that behavior. But no, Dr. Mechanic explained it very, very well. This was another moment when she knew Mr. Masterson, she was part of his circle. They were both Scientologists, they had friends in common. So she is sitting there, and processing it at that point. She's trying to figure out, what just happened. did I lead him on? Did I cause this to happen? Am I making this out to be something it's not?

And I think the evidence of that is when she calls him about a week later. She says, hey, you haven't called me. Were you going to call and talk about what happened. he essentially says nothing and hangs up.

She told us she wanted confirmation it wasn't a rape and that he was interested in her. She wondered if what he did was a sign of his affection. It wasn't, but she was still processing it. She was trying to understand that this guy she knows is not a rapist and she is not a victim.

Ladies and gentlemen, these things are not black and white. Everyone does not process it the same. And it is a process.

There were some subsequent contacts by phone. "I could not think of it like rape, that would have made my life horrible. I knew that would sink my whole emotional life. It was too much to process. I had to make it something else to survive it."

That's exactly what Dr. Mechanic told us. That's the mechanism, it's almost like a self-preservation mechanism.

Rape is a very personal, deep, deep invasion of your body. When you think about someone breaking into your home, taking something, you have this unsettling feeling of someone invading your home. Imagine that happening to your body. It's a huge, devastating invasion. And it's not easy to handle. and for some much more difficult than others.

She made several disclosures. Jordan Ladd. They were best friends, they no longer are. But shortly after this happened, she did talk to Jordan Ladd in 2003.

Jordan Ladd remembers her being very emotional, trembling speech. She told Ms. Ladd, she told the defendant no, I don't want to do this, and she told him over and over and over again. And she gave up. And when she gave up, she said, at least put on a damn condom. She gave up. Now she's protecting her health. Because that's all she has left at that point.

Who else did she talk to. She talked to [Jane Doe 2's mother]. The mother said she recognized that JD2 had been kind of looking forward to the evening with Masterson.

JD2's mom said she was very clear. She didn't want to say something she didn't clearly remember. She only wanted to testify to things she really remembered, that stood out so clearly. What were they? He was coming at her from behind like a jackhammer and relentlessly. that it was painful. That she told him to stop and he wouldn't stop. And that she had thrown up in her mouth.

This is forcible rape, ladies and gentlemen. When asked by defense why DJ2's mom didn't use the word rape, she said she had an old-fashioned idea about what rape is. And now she understands it's about consent.

This is what Dr. Mechanic talked about. That we have an idea of rape as someone jumping out of an alley with a gun. No, it's about consent. It's about a sexual act on someone who is unwilling.

Mariah O'Brien, good friends with Jane Doe 2 for several years. That ended in 2014, and she also testified that she knows Mr. and Mrs. Masterson and has been a designer for them. And yet she came in here and testified.

She remembers a dinner at her home, and conversation about Masterson. And JD2 stood up and blurted out that she had been raped by Mr. Masterson, and then she left the house. This was in the fall of 2014.

By the way, disclosure to Jordan Ladd and JD2 mom, to Mariah O'Brien, long before any involvement with law enforcement.

O'Brien was shocked, she got really upset at JD2 for the way she blurted it out in front of her children. They stopped speaking. But she was here for JD2.

Rachel Smith, again close friends in 2002/2003. They're friendship ended at the end of 2003. She has known the defendant since the early 1990s. She was part of this circle of friends. But despite knowing him since the early 1990s, where was she the other day? Right here testifying for JD2.

She remembers JD2 coming over. She remembers that JD2 was very confused. That she had gone to his house and that he was very demanding. She told him she begged him not to have sex. The next thing she knew it was really rough and violent like a jackhammer. When asking about JD2's demeanor, she said she was out of it, and Ms. Smith said she was just "processing" it.

In 2017 or 2018 Ms. Smith contacted JD2 to remind her about the conversation because she had seen news of the investigation. What did JD2 do, immediately told her to call Det. Vargas.

Tricia Vessey. (Jane Doe 4: A reminder, she gave the Underground Bunker to identify her.) Not a charged incident. You can consider this to whether there is a propensity for Mr. Masterson to consider these acts.

There were two incidents that Tricia talked about. The first one, there was a wrap party at La Poubelle. Masterson invited everyone over to his house. And if you're too intoxicated, spend the night. Tricia does. She goes into another room with a friend. She laid down on the floor fully clothed. Her friend Justin was on the bed.

She's sleeping, and she wakes up because Masterson is trying to pick her up. Come with me, Justin is doing something to you. Trust me. Come with me. You'll be safe.

She's confused, she said he was very adamant about me leaving, and then I passed out.

Her next memory is him with his arm around her, dragging her down the hallway. Where? To his bed. Of course that's where they're going. To his bed.

And then she wakes up and he has his penis inside her vagina. She's confused and passes out again. She wakes up the next morning and he's still in the room.

He woke her up, and "he was just smiling at me in a way that was really confusing, as if we were on a date or something sweet." Well, dragging someone who was on the floor and then to your bedroom is far from anything sweet or romantic.

She got dressed and took a ride home. She felt deep shame. But -- and this comes up again -- she didn't know how to categorize it.

About a month later, you heard about this other incident, that he just sort ofo inexplicably shows up in an SUV with his buddies. He gets out, they take off. She comes down. Let's go up to your apartment. I have a flask. Not a labeled bottle of alcohol, but a flask. Would you like a swig?

She says she has a couple of swig, and she does not remember the defendant drinking out of the flask. Interesting. She recalls pretty quickly become incoherent, within 15 to 20 minutes after taking a couple of swigs.

She has a memory of him taking her pants off. And then what does he do? What he always does. He was penetrating her vagina with his penis.

She asks him about using a condom. Again, when you realize it's happening and at the very fricking least, put on that condom. He ignored her saying to stop. What she remembers him saying was, "diseases are in the mind."

She then went unconscious. The next morning he asked her to drive him to his baseball game. And she described the soreness she was feeling.

The question again was asked by the defense, after this you still had contact with him. You're coming out of a store, he drives up and offers her a ride. I think that happened more than once.

There was a time that she reached out to Chris Masterson and they went to see him dj. And there was this question, was she shaking? And yes, she said she was shaking, but she didn't have a shake meter to tell you exactly how she was shaking. But again, this was the physical reaction to something she was still trying to process.

She said, he was still part of my work. He would sometimes be on auditions, they still had that circle of friends. To go and say, you're a rapist and I'm a victim, there are implications for that.

For Tricia, that was going to upset her world, and she wasn't ready for that yet. Did I do something? Should I have not had drinks? Did I lead him on in some way. Did I misinterpret what happened. This feels like rape to me, but is that what happened with this guy I know?

It's complicated when it's somebody in your world, somebody you know and that you're still going to have contact with.

Ladies and gentlemen, you've heard the evidence, you've heard the testimony. Each of these victims have come forward and given testimony, it's not an easy thing to do. We're asking some very intimate questions, and then cross-examination comes, and it's not easy. But they did it.

I submit to you that the evidence in this case proves that the defendant is guilty beyond a reasonable doubt in each of these counts. The forcible rape of Jane Doe 1, the forcible rape of Jane Doe 2, and the forcible rape of Jane Doe 3.

I am confidence that each of you can reach that conclusion. Thank you.

Judge Olmedo sends the jury to the jury room for a few minutes while Cohen gets ready for the defense.

[SHORT BREAK]

Jury comes back in.

Cohen begins the defense's closing argument.

Cohen: I have been waiting so long for this. This case has been maddening for me. It started in opening statement. Because I knew the various statements and interviews and things that were out there. And when I heard DA Mueller give his opening, I had hoped that as this case played out, perhaps the government would see the strength of their case or lack thereof.

I harken back to juror in voir dire who said, both sides want to win.

And let's not be fooled. Mr. Mueller said he just wants justice. They want to win this case. And they want to win so badly, they have ignored the blatant obvious contradictions and fabrications that each Jane Doe has given you, as well as a ew of the witnesses.

You all could look at the criminal justice system in one of two ways. One is, if someone gets on the stand (sitting in the witness stand), raises their hand, and says something, that's enough. It doesn't matter about inconsistencies or fabricate facts. As long as they say the words, that's all that matters.

But that's not what you have to go by. And for DA Mueller to ignore in his closing, these contradictions and fabrications, to me it is not only maddening, it is horrifying.

I did a trial in this building I don't know 20 years ago, and I beame friendly with the DA -- and by the way, I like Mr. Mueller and Ms. Anson -- I did this trial 20 years ago, and this DA said to me, how do you represent those people? It's hwat aI like to do. It's how our system works. He said wait until you have kids, you'll see everything differently.

I didn't get married until later in life. If you hung out with me for a month, you would understand. Did get married, had kids, and it did change my view. But it didn't happen in the way he thought it would. I look at my boys and I think, one day they're going to be sitting in a chair like that and our government is going to put on a case like this one was put on, and hide from, ignore, avoid, contradictions, the absolute fabrications from a jury, and one of my boys is going to be sitting there and I won't be able to help. That's horrifying to me.

How do you go about doing your job? The court read your jury instructions, and it was hard to keep up with. I blew up a few of them. You have to know the rules to play by.

The first jury instruction that permeates everything that happens in a criminal trial: Proof beyond a reasonable doubt.

I'm not going ot read it all. You have them if you want to look at them. But what is important to take from here, the fact that a charge has been filed is not fact that it is true. That's the presumption of innocence. It remains until you go into the jury room.

Remember those three jars, and sand going into them? That presumption doesn't just start at trial, it remains at trial. It is only overcome by the government giving you enough evidence that there's proof beyond a reasonable doub.t

The defendant is presumed to be innocent, requires a doubt beyond a reasonable doubt -- which leaves you an abiding conviction that the charge is true. It doesn't have to get rid of all doubt, becasue everything is subject to some imaginary doubt.

You don't have to like Mr. Masterson. You don't have to like Scinetology, it doesn't matter. You dn't even have to like me. It deosn't matter. You consider the evidence and whether it leads you to an abiding conviction.

What does that mean? People have been talking about it literally for hundreds of years. It is that level of confidence, that you would use in making the most important decisions of your life. That's how strongly you feel abou thte what the evidence has shown. Why the most important decision oof your life? Because trust me, the decisions you make in this csae is one of hte most important you will ever make.

In talking about this concept of proof beyond a reasonable doubt. (Shows a chart) It goes through the stages about how you're feeling about the evidence in this case.

It goes from the bottom, proven not guilty. And remember, Ms. Goldstein and I could have done nothing and not asked a single question. The presumption of innocence starts there. And it goes up the ladder. He may be guilty, maybe not. If that's the mindset, it's not even close to proof beyond a reasonable doubt.

You then work your way up teh ladder. You think he may be guilty. The women took the stand, they all said he raped them. I think he maybe, possibly may be guilty. YOu know that requires? A not guilty verdict.

Up the ladder: He's probably guilty. But that means nothing. Up the ladder. His guilt is highly likely. Again, that requires a not guilty verdic.t

It is only if you get to an abiding conviction, the most compelling, the most thorough feeling I could have, that that man is guilty is of what he's charged that -- that, and only that, is proof beyond a reasaonable doubt. Regardless of what you may think of anyonne in this trial.

Let's talk about your duties in this case. (Puts up a chart we can't see.)

What is your duty. You swore that you would follow the law as jurors. And everyone of us took that to heart, or none of you would be isitting here.

You must decide the facts. It is up to you alone to decide what happened.

By the way, you are probably the only 16 people that have heard every piece of testimony. There is nobody better qualified to decide who is teling the truth. Nobody.

You must not allow bias, or public opoinion, to affect your decision in People of california vs. Daniel Masterson. You know who's not on that title? The Church of Scientology.

We did a word search last night. You know how many times Scientology was mentioned? 700-plus times.

There's a reason the government has mentioned Scientology more than 700 times...

(Olmedo, ladies and gentlemen, that's not in evidence. Please stay to the evidence.)

Many people have biases and stereotypes about people. You must not be biased against anybody because of someone's race gender, ... etc. .. religion. (His emphasis on "religion.") That's part of the duty you swore to.

So how do you go about determinig to credit a witness's testimony?

How well could the witness perceive? How well could they describe? What was the witness's behavior during testimony? Behavior meaning how did they respond to questions from government, and from Ms. Golstein and myself. Was there a difference? And why would there be a difference?

We're going to talk about a number of the witnesses after lunch, but just as an example, [Jane Doe 2's mother], was she impacted by the fact that Jane Doe 2 is her daughter, that she had love for her daughter? Did she say something that was inconsistent with her previous statment? BOOM.

Think back to Dr. Mechanic. She said there were going to be some inconsistencies. Ignore them, just look at the gist. Is the gist I was raped, and everything else was just a minor detail. Would a gun, would that be a minor detail? Would a text message be a minor detail? Would telling your mom that you can't wait to go over and see Danny, would that be a minor detail?

Bruises everywhere. Pain, 10 out of 10. Anus on fire. What would you expect somebody, given that description, to look like. Think about it. Intestinal problems, on fire. What would they look like? (Shows photo of Jane Doe 1 in bikini, holding drinks.) Would they look like that? Is that evidence that tends to disprove JD1's testimony.

And by the way, you don't think the tovernment wants to win? Do you remember how this came into evidence. DA Mueller only showed that photo. I had to bring in this photo. What's in that picture? Is that a drink? It looks like a pina colada. I don't see any pink dots on her neck. DA Mueller can argue bruises everywhere. But you can look at this photo and think, perhaps JD1 was not truthful?

Now, DA Mueller may say Cohen will say victims lie when victims have no motivation to lie. But do you remember the expert, called by the governnment. Let's see what she indicated. She was asked about people giving data for study: "In any context, somebody could lie." In any context, meaning this one, somebody could lie. And that's your reasonable doubt, right now.

Dr. Mechanic was asked about whether someone being asked and if they could lie motivated by money. She said sure. Jealousy? Yes. Anger. Yes. Sadness. Yes.

All of htose things, which don't apply to research, apply to real life. that's what Dr. Mechanic has told us.

The last instruction I want to talk about now, and it is, I think the most critical instruction other than proof beyond reasonable doubt.

This is the circumstantial evidence instruction. You take two different pieces of testimony and you reach a conclusion. If you can draw two or more conclusions from circumstantial, one points to innocence and the other to guilt, you must accept the one that points to innocence. You must.

I'll give you an example. JD3 has sex, is intimate on multiple occasions, post the alleged rape and relationship. Is it a reasonable conclusion because as DA Mueller says she is still processing? Maybe. Is it a reasonable conclusion that she was not abused for five years like she testified, that she still had affeciton for Mr. mastssorn and they still had love for each other? If both of those are possible, If that's the case, you must accept it [the latter one].

And there are a number of examples of that in this case, that point to a reasonable interpretation that points to innocence, and you must accept them.

Before we leave, I listened very closely to DA Mueller's closing. Words matter. That's how we communicate, as witnesses and advocates. And I wrote down just a couple of things that DA Mueller absolutely ignored in the summaries he went through.

With Jane Doe 1. She testified that sehe woke up post rape. Masetrson was goine. She got up and got drewssed and left. For three days that was her testimony. Then I showed her a statement she made where she woke up at 3 in the afternoon adn Masterson was there and they talked. And what did she say? That she had forgotten that until just then.

And what did Mr. Mueller say? When she woke up he was maybe around, and he ignores her three days of testimony that Masterson wasn't there.

Jane Doe 3. She gives various stattment and she had never mentioned penetration in the November 2001 incident. Then her she gives detail about having her arms pinned down, about pulling his hair, about being penetrated. But she didn't say that in her earlier statements: DA Mueller left that out.

Jane Doe 2. What did Muller leave out? that she had called her mom, saying how excited she was. She never told us that, her mom did. What else did DA Mueller leave out? Remember what Rachel Smith said that didn't make the highlight reel: That JD2 had a fling with Masterson. That's what she had said apparnetly to Rachel Smith. That didn't make it in the highlight reel.

Judge Olmedo: OK, let's take a break for lunch. She sends the jury out.

Now she says Cohen has an objection for the record.

Cohen has an objection from Mueller’s closing, something about Scientology. And how it has been limited by the court. The way the argument was presented, I believe was presented as untrue. And not going to state of mind and how it has been allowed. (Which statement?) An affirmative statement that you shall not go to the police, specifically attributed to Julian Swartz.

Mueller: It was all in the context of statements that were given to the victims to whether they accepted that, not an affirmative statement that it’s what the state does.

Cohen: I am loathe to object on a closing argument, but I think it was absolutely that it was the church does and for the truth of the matter.

Judge Olmedo reviews her ruling about what the victims may believe about Scientology’s policies about not going to the authorities, and other things about Scientology. The court overrules the objection because it has allowed Scientology to come in for those five reasons, and the jury has been told that nothing the attorneys say is evidence. And because I have offered admonitions numerous times that nothing about Scientology was coming in for the truth of the matter. I don’t think there was any conflict with what the court has ruled, and if there was it has been covered by the numerous admonitions I have given.

Recess for lunch.

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