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

After lunch session.

The Masterson clan grows on. At the lunch break, we noticed that Ben Shulman has joined the group, the first time we have seen him at the trial. Also, we recognize Alanna Masterson's husband, restaurateur Paul Longo. This is a very big group now, perhaps more than 20, and takes up about half of the entire courtroom.

Once again the place is packed.

Judge Olmedo comes in, and calls for the jury to come in.

The defense is continuing its closing argument.

Cohen: I'm trying to look at the case, give you an overview. I think there are two ways you need to approach it.

First, do you find the Jane Does credible. Because if you don't, the analysis, that's it.

DA Mueller went through things JD2 said, and as I asked the detectives, we don't know if what JD2 said is true, all you know is that's what they told you.

Second, we need to look at the definition of rape. There's really two elements at issue here. One, for it to be rape by force, the woman did not consent. But separate from consent, the defendant accomplished the intercourse by force or fear.

It's not enough for someone just to say no, that is not rape by force. Remember there are two crimes. One, consent. And two, you need to use force to accomplish it.

Citing the law: Uses enough physical force to overcome will. It's not "no, no, no" and then had sex. It's not even enough to have intercourse. It's physical force to overcome their will.

The defendant is not guilty if he reasonably believed he had consent, even if he's wrong. Even if he's wrong. Wakes up smiling (and thinks that he had consent.)

The burden of proving this issue of consent, the people have to prove beyond a reasonable doubt that the defendant did not believe he had consent. If they have not met that burden, you must find not guilty.

(He says he doesn't like Powerpoint. He compliments them for taking so many notes.)

I just want to make sure some specific points weren't lost on me, and that I was able to explain it to you that makes sense. So forgive me in advance, and the interesting thing is, I guarantee that one or twelve of you will think of something I never thought of. You're the only people that have heard every piece of evidence in the case.

So number one, there were four themes that I saw in this case, and seemed obvious from the beginning. Theme one was make this case about something other than Masterson and these allegations. Why? Because there are so many contradictions and problems with credibility. One person's testimony is absolutely enough to convict someone of rape, but they have to be believability.

There's no evidence of harassment in this case at all. You heard it from the women over and over, and you heard it for their state of mind. But there's been no evidence.

Look, a woman can report a rape at any time, whether it's two minutes, two years, or 23 years. I never questioned anybody about why they waited so long. It's what they said when they did report and what they said when they testified, and I stand by that.

So if DA Mueller wants to make this about Scientology, I'm not arguing anything about the delay in reporting. I'm arguing let's look at the evolution in their statements.

And we heard so much about Scientology, it became the go-to excuse. If someone didn't remember something or if there was an inconsistency, it was always Scientology's fault. And remember, you are not to bring in any bias or stereotypes.

DA Mueller painted a picture of this monster, but then look at the testimony.

JD1. She said there was this sex in Sept 2002, and after that I was terrified of Masterson. Where does she end up in April 2003, voluntarily. At Masterson's house. This whole convoluted story she came up with these keys and trying to get to a house 15 minutes later. I've been living with this story for a long time and I still don't understand it.

They go to this birthday party and they end up at his house. Then he's dragging her across the house and it's terrifying. But look at the statement she gave to the LAPD.

She goes to his house, goes into his kitchen on his own. She takes a drink, and then she walks into the backyard. Sure, she says she's terrified, but when you look at the testimony, it's not there.

Jane Doe 2. She said she got these commanding, demanding texts to come over. By the way, where are these texts? We have to hear it from her mother, that she was actually excited to go over to his house.

It raises the question that she had seen him more than once. It seems reasonable that she had gone out with him before. Why do I say this, because there was her testimony that "that was the night he texted me to come over" -- as opposed to another night she came over?

What does Rachel Smith tell us, that they "went out," that they "had a fling?"

So sure, it sounds great, that they were terrified, but when you look at the testimony, it says something different.

Jane Doe 3. It was always non-consensual sex. It was always rape. But what does she do after a break up? She continues to see him. She continues to sleep with him. Remember, he's this monster, right? But do you remember she talked about getting together and she started to cry, and what happened? There was no sex.

If you are to believe this picture painted by the government that you don't want to get caught in his lair, but JD3 herself talked about something different.

(Then about how if you tell the truth, easy to keep it straight, if you lie, stories step on each other.)

JD3 in New York invited out this monster, this rapist, out with her new friends and then goes back to the monster rapist's hotel room. I asked her, you went back with him and had sex with her voluntarily.

Mr. Mueller is going to tell you that people are still processing, and that's what Dr. Mechanic will tell you. But what's another reasonable conclusion. Not that she was processing, not that she didn't know what happened the last six years, but that she was in a regular relationship like so many people, with ups and downs, and that she still saw him after the break up because she didn't feel commanded by him and had her own autonomy. Is that a reasonable conclusion? Because if it is, you must accept that.

Then we have Tricia V. She was very interesting because even though her allegation isn't charged, she crystallized so much. She waited 23 years to tell anyone about what happened. And after the first time, she said she would shake whenever I saw him. What then happens? A month later he comes to her house in a truck, he says hey Tricia you want to hang out, he says OK. Remember how that came out?

The way she described it he magically appeared in her house. That's not what happened. She invited him, brought him up to the bedroom, and she starts drinking, and that leads to sex.

Do I think she's been processing this for 23 years? Is it reasonable to assume she had sex with him, and now, remember even Dr. Mechanic said sometimes people lie about what happened. Is that a reasonable conclusion? If it is, you must accept it.

Jane Doe 1 said she had consensual sex in Sept 2002. But then 19 years later she said it was rape.

Jane Doe 2, what was "not rape" became rape.

Jane Doe 3, told us that she would drink too much, she would not remember what happened, remember? I wonder what did I do, did I embarrass myself? And she hasn't mentioned this November 2001 rape to anybody, Mueller and Vargas speak to her and now it's a charged rape.

Tricia: Hadn't thought about it for 23 years, and now it's rape.

Blaming/contradictions. Jane Doe 1 says Supervising Detective Schlegel got it wrong about a gun. And Det Myers, she got it wrong too. When it's wrong, blame it on others.

Jane Doe 2. Her mother, remember what she did? The day she came in was a list of items she needed to "flush out." I asked her, when did your daughter testify? She said yesterday. JD2 uses her mother to flush out that she wanted out or thought was inconsistent. Is that reasonable that the two of them spoke together to get out what needed to be flushed out? Is it?

Jane Doe 3. She never mentions penetration to Det Reyes. I asked Det Reyes, I asked her about the experience of her partner, because Mueller will say Reyes didn't ask the right questions. And when I asked Reyes about the experience of her partner, I asked it four different ways, I got four different objections. DA Mueller did not want you to know how much experience Det Villegas has. Because then the idea that Det Reyes didn't ask the right question becomes Det Villegas also didn't ask it.

Tricia: The message she sent to Christopher. Then she blames that on, I think, Scientology (that she didn't mean it). But is it reasonable that she meant it? If it is?

OK, let's talk about JD1, a breakdown of her testimony. And again, whenever there are different reasonable conclusions and one points to innocence, you must adopt that which points to innocence.

Jane Doe 1. DA Mueller said that the police had reached out to her. That's not correct. All three women had spoken before Jane Doe 3 ever reports to Austin PD. The women then continue to speak. Remember JD3 speaks to Reyes and the very next day JD1 and JD2 called Reyes. And she says, this is weird, I told JD3 not to talk to anyone. Perhaps Da Mueller misspoke: The truth is that all three women spoke before JD3 went to Austin.

Jane Doe 1: "Ugggh." She said that about the Sept 2002 incident (indicating surprise what had happened). She denies telling Myers that Masterson was "repeatedly hitting on her." There was no surprise. "Alcohol does stuff to people," those are her words about Sept 2002.

Then we heard about this whole penis to anus thing. What did she actually tell the police about that? He immediately apologized and I thought it was accidental. She ran from that on the stand...

(Judge Olmedo: That's not in evidence. That last part will be stricken. As Cohen tries to begin again, she calls for sidebar.)

And JD1 told you that Masterson had immediately apologize. She describes this whole incident as consensual to the LAPD. She comes into the court and says she thinks of it as rape.

Uggh, part two. Remember what DA Mueller said, after that Sept 2002 incident, JD1's world blew up. Whatever she sees as blowing up, that's what Mr. Mueller describes, because she had sex with Masterson. What then happens in April 2003. She said that in that period her tolerance for alcohol had gotten better. She says she was terrified of Masterson. btu she went there, got a drink, and went to the backyard, all of her own volition. This whole thing about being dragged only came up at trial, she didn't say it before.

Remember she said she tried to call her father and leave a message? There are no phone records, no voice mail.

Then she said she crawled into the closet. And then she woke up. She told us she woke up and he was gone. But after 20 years she now remembers that she just remembered that Danny was there. Ma'am you just remembered that today? Yes. She never told that to LAPD. She never told that to Mueller. And over three days she never told you. But then I showed her this statement she gave Scientology indicating that she woke up with him next to her.

If you find that a witness has been false, jury instruction tells you, if you decide that a witness deliberately lied about something significant, you should consider not believing anything they said. This is the liar, liar pants on fire jury instruction. (Mueller objects, Olmedo admonishes the jury to accept what she says about the jury instructions.)

Let me read the instruction verbatim. (Reads it.) The law says you should consider not believing anything (by that witness.)

Then she gets to Florida. She calls Danny a few days later, what happened. He says we had sex. No, no! And she hung up crying. The problem with that is it's not true. She wrote in her statement that she woke up next to him and talked to him.

The bruises. Shocking photos. Rachel has her whole negative roll. If there were more I'm sure the government would have gotten them from Rachel. And there you see the two photos. I asked her, when this was taken you are covered in bruises. Yes. 10 out of 10 pain. Yes. And all of the intestinal and vaginal issues. Yes.

She absolutely told Schlegel there was a gun. And here's where the blame it on Scientology comes in. She says she was told not to put in the report by Scientology there was a gun. But she told us she told LAPD there was a gun, and that Schlegel ran a gun report. What did Schlegel tell you? I asked JD1, you absolutely recall telling Schlegel that Masterson had a gun. Yes. I then asked supervising detective Schlegel -- if JD1 had mentioned a gun, is there anyway you would not have included that in your report? No, I would have included it. Det Myers, in two reports JD1 never mentioned a gun. Correct.

The government then pits Schlegel's competency against the credibility of JD1, and says JD1 got it right and Schlegel got it wrong. Again, lets go back to the jury instruction. Is it reasonable that she didn't tell him about the gun? There's really no other reasonable conclusion.

How did JD1 know he had a registered gun? Well, I asked JD3 that. Did you know if he had a registered gun. JD3 said yes. Well, remember, JD1 said nothing about a gun in 2004. We know they talked to each other before JD3 went to the police. Is it reasonable that JD1 heard about the gun from JD3?

JD1 was asked about a civil lawsuit. You suing for money? No. We then had to, as we did for all the Jane Does, there is a lawsuit filed against Masterson with damages, punitive damages, and treble damages, and attorneys fees. Remember what Mindy Mechanic said, could money provide motivation?

DA Mueller is going argue, I suspect, the report that JD1 writes to the church. One, JD1 testified that she wrote it in June. The report has December 2003 written on it. I asked Det Myers, she indicated that JD1 had written this statement in December 2003. Number two, JD1 has to, to avoid her world blowing up again for sleeping with Masterson, she has to explain it. And her answer is, she woke up with him on top of me, he put a pillow on her face. That is her attempt to avoid the second "Ugh."

DA Mueller is going to say she's telling the truth because she's talking about the rape in the December 2003. My point is she makes it up at some point. When she does matters very little. What matters is how credible is she?

Let's look at a couple of things she puts in this report that absolutely contradict her testimony. She went there with 15 people, asked Watson when we were leaving. He said we might crash there. So it's not this, he caught me in the lair, nothing like that. Remember the dragging and kicking? Here's what she said in December 2003. I went into the kitchen, I asked for something to drink. He made a drink for him and me.

This is the monster she says had raped her five months earlier.

She goes through then, and again she describes this rape scene somewhat consistently in this report, but the point is to avoid her world blowing up, not to take charge or blame for having sex again, to blame it on Masterson.

After she had told us she woke up in closet, she was shown this statement: I woke up in bed next to Masterson. I asked him what he was going to tell Luke.

That's what she wrote in December (2003). Contrast that with what she told us here, and what she told detectives. And now you have an issue of, can we believe her? Or do you think she's being untruthful.

Jane Doe 2. Again this theme, predatory, demanding. Commanded me to come over or she will come and get me. Then her mom testified, and said she was really excited to go see him. Then she testified that she had two drinks before she went over there, drank when she got there. Her idea going into the shower, ok with the fingering.

Remember what she told Vargas? Danny "asked me" to go into the bedroom. That she was making out and getting into it. And she talked about sex they had after the charged incident. What's interesting is she simply described it as, we simply had sex. And she stayed there until 6 in the morning.

She testified that she went home thinking they might have been dating. And when she called him she said, I liked you and I thought you really liked me.

And based on what her mother said and what Rachel Smith said about a "fling," there's more here than what JD2 told us. Is she really still processing it, or was it not a rape. Is that a reasonable conclusion?

DA Mueller indicated in his close, Rachel Smith said she spoke with JD2 in 2003. that's not what Rachel Smith said. She said she disclosed it to me in early 2003. I asked the question three times in three different ways, and it probably didn't mean anything to you at the time. But according to Rachel Smith, Jane Doe 2 told her in early 2003. Why does that matter? Because the charged incident was in late 2003. Right there, it does not meet the requirement that the allegation fall in the time frame.

And JD2 told Reyes, point blank, I never feared he would hit or hurt me. Penetration on its own is not force.

Jane Doe 3. She had talked about Masterson's illegal, unwanted non-consensual sex for six years. But the only thing she told the rape hotline, or police, or her husband, was this unconscious sodomy of December 2001. When she told Reyes, what did she say? It was the unconscious sodomy. That's not the charged incident.

DA Mueller, the lead person on the prosecution, what did she tell him? The unconscious sodomy. That's not the charged incident.

As an aside, the December incident is not charged, but it's critical to remember that JD3 said she would drink and not remember, it sounds like a blackout. No one remembers seeing her being dragged out of La Poubelle. She's 5-feet-10, Mr. Masterson is what, 5-5 or 5-6. No one saw him taking her out.

The November 2001 incident, the first time she refers to it in 2017. And when Det Reyes asked her about a rape, she talked about hte unconscious sodomy -- that is not the charged incident.

When she did talk about the November 2001 incident, I asked her if she told Det Reyes, she can't remember much about it. And in her interviews, she never mentions the month November.

Reyes had asked about the slap incident. Still no mention of any penetration. In that interview with Reyes, did she ever say that Masterson's penis ever penetrated her vagina. No. Is it a reasonable conclusion that he did not penetrate her? If it is, you must adopt it.

The Paris incident. If you remember her interview, she said if she didn't want sex, he would go away and not talk to her. Nothing about pulling hair or spitting or calling names.

The Jennifer Esposito thing is interesting. She said Danny had said something so horrible, so disgusting. And I said, is what he said, "Show them your tits." No sir, no, she said. And then we heard, that is exactly what was said.

Again, creating this monster. That's the theme.

Now turning to post-incident contacts. She never told LAPD about them. She never told LAPD about an email thanking Masterson for his love and support.

And then Cedric. What did Cedric tell us about this horrible, monster, rapist. What did he say, she told him that she was still in contact with Danny and that they had a platonic relationship. She never told that to LAPD.

The New York incident. You were done with Masterson at that point, right? But then what did she tell Cedric? That she was still friendly with Masterson.

There were a couple of things that came up during the trial about how evidence was presented that I think meant a lot about the strength of this case. The DA had shown us a number of pictures. Scientology buildings. Modeling pictures. TV show. Through all of that, what I have to show. I had to show that second picture of JD1, drink in her hand, smiling with her cousin Rachel. I had to show the email that JD3 had sent to Danny. I had to show the text message from Tricia to Christopher, sending all of our support.

This was in evidence. Message from Tricia: Hey, Chris, I saw a fucked up article about Danny. Just wanted to send you guys some support..."

I had to show you this. We then heard from Det Vargas. And the thing that struck me is that he came in as the lead, and he had never reviewed the interview transcripts of the three Jane Does by Det Reyes. What does that tell us? There was no way for him to contrast the various contradictions between the statements. What lead investigating officer would not compare statements for a full investigation?

We then heard about this choice between Schlegel and Jane Doe 1. Did Schlegel get it wrong, or was JD1 being untruthful? Det Vargas never looked into it. By the way if Schlegel had checked on a gun, there would be a piece of paper on it. Det Vargas never looked into it.

Shaun Fabos. He was friends with JD1, and babysat for her daughter. DA called him in this trial, and he testified among other things that he was in Florida with JD1 in April 2003. DA Mueller then spent 10 minutes saying you never told us that before, and this defense investigator just talked to you. All this energy to prove that Fabos was a Scientologist and was a liar. Until what, I talked to Vargas and it was in his 2017 report that Fabos was in Florida.

Why is that important? Because it's important that Fabos was there, but also it goes back to this theme of, if there's a problem, blame it on someone else rather than just admit our alleged victims, just not credible. Wouldn't that be amazing to hear? Ladies and gentleman, the evidence did not pan out the way we expected, we do not have faith in this prosecution. Wouldn't that be an incredible thing to hear, rather than say that Det Schlegel put together his report too late at night and forgot to put a gun in there?

Reasonable doubt. That's what you need to find. It's for you to determine. I would suggest it would be something you would use in the most important decisions in your life. And thinking about it, and i literally thought of this on my drive home the other day. What are some of the important decisions we make in our life, and the thing that came to my mind was driving a car and going through a green light.

You're in a car, your driving with your son daughter dog in your car, the things most important to you, and you're driving to an intersection with a green light. Do you know that the cross light is red? No. Is it possible that the cross light has been painted over or there's something else wrong with it. Sure. And think about what goes through your mind as you come to that green light. You go through that green light, putting your lives at risk every time we go through that intersection. And think about the lack of hesitation that you have in driving through that green light.

Even though there is this possbility that the other light is not red. I would submit that is the degree of certainty to find that this case has been proved beyond a reasonable doubt. You don't even slow down. You don't need help from anyone else and you right through to your verdict.

And if you have any doubt about that, and even though we'd go through all this and no one is going to be convicted? And as much as the government wants it so bad?

I want two more minutes. The hardest part for me is going to be the next hour and a half, when Mr. Mueller gets to go again. And remember what I said about primacy, and what you hear last.

I beg of you, for this process to work out, I ask you to think, what would Mr. Cohen say that? Please, please, do your job as a juror and think of that. And I will leave you with this.

I put together some questions. The gist is, three women say they were raped. I get the gist. What matters is consistency and logic and proof beyond a reasonable doubt.

Cohen puts up a list of questions.

1. Why choose JD1 over Schlegel? Why throw him under this bus?

2. Why not show that second picture of JD1?

3. Why didn't JD3 tell anyone that she had slept with Danny post breakup?

4. Why didn't JD2 tell us she had a "date" and a "fling" with Danny?

5. Why did Tricia lie about why she sent that text (to Christopher)?

6. Why did Vargas turn off that tape at the end of Tricia's interview?

Thank you, your honor.

Judge Olmedo says we'll take an afternoon break and come back with Mueller's final closing argument.

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