After lunch session, Day 18 (Day 14 since testimony started), Danny Masterson retrial.
(At the lunch break, we went back to clean up typos on the first morning session. It was really tough keeping up with DA Anson, but we think it's now a fair reflection of what she said, and with fewer misspelled words.)
Continuing the defense closing argument.
Defense attorney Philip Cohen: Thanks for coming back. I wanted to actually pick up in terms of witnesses where Ms. Anson left off. And that's with Kathleen J.
The reason why, I think she was called was to help save the case or bring it together. And listening to her it sort of crystallized so much of what's gone wrong with the case.
I think Ms. Anson gave you a one-sided version, and we learned a lot on cross.
If you remember it was Ms. Anson who asked KJ on her tweeting, and showed her some particular tweets.
I then asked her about this 2003 rape tweet -- remember she says the rape was in 2000 -- I showed her two tweets from the same account saying she was raped in 2003 by Masterson and Gerard Butler.
The interesting thing is, after confirming this account for the earlier tweets, she says she didn't write these. She said she did tweet at one point that it was in 2003, but she didn't write this.
Let's be clear, you have zero evidence that anyone's email has been hacked. the DA could have called the LAPD or anyone, but you've heard zero evidence.
Interestingly, she does admit that she tweeted the rape was in 2003, but just not this particular tweet.
Anson asked her if she was a Scientologist or cared about it. No, no, no.
On cross I asked her do you know who Leah Remini is? She said no. I then said you follow her. She said, oh, maybe I'm familiar with her.
Number one, it's an inconsistent status that goes to some bias. But number two, its' untruthful. I don't know who Leah Remini is is simply a false statement.
Instruction: You should consider not believing anything she says.
We also see that she has hashtag Scientology. Why do I need to bring this out. If the government has her on as this unbiased witness, why do I need to bring out #Scientology. Why? Because they want to win. I don't begrudge them, but let's get rid of this idea they want justice. They want to win.
KJ spoke to Toronto Police. What did I have to ask. was there anyone you talked to between JD3 and Toronto PD? Oh yes, I guess.
We've heard the name Tony Ortega swirling around with these various JDs.
I need to ask her if she spoke to Ortega before the police. Why is this important? Because the interview she gave Ortega completely contradicts the statement she gave us.
She told Ortega, Gerard Butler invited me to the party. But remember she denied saying that to Ortega. She's not being truthful.
She gave details about being raped. Going into the bathroom, going into detail. What had she told Mr. Ortega, prior going to the police? He gave me a drink, I woke up the next morning in pain. Little inconsistency, or the heart of whether someone is reliable, truthful.
She denied making that statement to Ortega. I asked her, did you tell Ortega that Masterson and others raped you? She denied saying that. She said after this rape, she and her husband, Dracula 2000 came out and of course we watched it.
I couldn't understand why, she knew she'd been raped the moment she left the hotel. Why would she watch the movie? Her reason was that it was shot in Toronto. I don't know, doesn't seem to overcome the pain, the shame.
What did she tell Mr. Ortega? That she told her husband years later. Not truthful because she denied telling Mr. Ortega that.
I don’t know if it meant anything to you at the time, but the govt and the defense entered into a stipulation, this is an agreement this is the true state of affairs. 1. That it was Masterson who handed her the drink, then she woke up. That's what she told Ortega, that's what she denies she told him. 2. She did not tell her husband until years later. 3. She said that Mastrson and perhaps othrs raped her. 4. Gerard Butlerhad invited her and others up to her suite.
Why do I think this is so important? Number one it brings to us what Det Reyes testified to.
Mr. Mueller had asked Reyes why victims of sexual assault may be inconsistent in their statements or testimony.
I then asked a question of Det Reyes. If you remember, 19 years sex detective, hundreds of investigations. Seems to be very experienced. Here's what she said.
Could it be they're not being truthful? Could that be a reason for inconsistencies? One of them is they're not being truthful. (Reminds them she doesn't review later interviews.) Your opinion that inconsistencies may come about because someone is not being truthful.
So you think this is a far-flung idea, that for various reasons someone could get on the stand, claim an assault, and not telling the truth, and may be making it up?
Because here's what a sex detective testified to under oath.
In looking at how KJ played out, remember, is it possible that she just doesn't remember how things went. Is it reasonable that she was not truthful. If that is reasonable, and it points to innocence, you must choose that interpretation.
If you must do this with KJ, you must do it with all three of the Jane Does.
Let's talk about this issue of contamination. Let's be clear, I'm not claiming there is this grand conspiracy, that there are three women who just came out of the woodwork and claimed this -- well, with exception of KJ -- but in terms of the Jane Does, with JD3 he was in a relationship with her. Knew JD1, and no question, knew JD2 and knew each other for a number of years.
So it's not some grand conspiracy that I'm alleging. I'm talking about small inconsistencies that have come into this. It doesn't take a lot.
Puts up a visual from a Reyes interview.
She tells JD3, if you continue to talk, it will be fatal to this case.
The reason you use the word "continue" is that they were speaking to each other.
It's not some grand conspiracy, this is Det Reyes telling you they are speaking to each other.
And you warned the JDs about speaking to each other, correct? Correct.
Then you have a discussion with JD1.. and they continued to talk with each other.
It's a discussion here, a talk there, that's what contamination is (not a grand conspiracy).
Brings up JD2's mother. Very nice lady. Yes, she would do anything for her daughter. Having a hard time telling what was said then and what was said later. And yes I spoke with my daughter before I spoke to Vargas -- that's exactly the kind of contamination that Reyes was talking about.
So contamination kind of falls under this umbrella of a bias, a motivation. What else falls under it is a lawsuit. You heard about a couple of lawsuits. JD1 in 2004, makes a demand. And she asked for money in return of not filing a lawsuit. Then we hear in 2019, we hear that lawsuit has been filed against Masterson, against Scientology by all of the JDs, by Cedric, and despite that they are suing for peace, they're also suing and asking for a lot of money. It was a little difficult to get that out of various witnesses, but we eventually got it out.
Might that be a motive? If one thing became clear, it's that all of the Jane Does, and a number of witnesses have very strong feelings against Scientology. Might that be a motive?
If you're looking for motives to why someone might not be truthful, there are motives all over the place.
Is that reasonable that this might be a motivation. If it is reasonable, you must accept it because it points to innocence.
That's why these inconsistencies are so important.
This came through with Claire Headley as well. Frankly I'm not sure a Scientology expert was needed. The JDs all testified to what they believe and weren't challenged. But you heard what about Claire Headley -- she sued Scientology, she lost and had to pay some attorneys fees. She belongs to a foundation that tries to help former Scientologists. She has a relationship with Ms. Remini. She came with a bias and a motive, and I kind of just wondered, what is the big takeaway of this testimony. If its not for sympathy or emotion, did she really add anything that the Jane Does had already described?
Before I get into JD3, the charge in this case is forcible rape. Ms. Anson had gone through some of the elements. Let me just show you real quickly. (Posts copy of the law.)
Law: Defendant had to have sexual intercourse. (Referring to JD3. "JD3 never mentioned penetration.") No consent. Accomplish by force or fear.
What's not hear is any mention of drugs. Ms. Anson described this like it was a drugging case. Why? I don't know. Perhaps because you can make this inference of drugging without any toxicology. You can make that inference just from the women’s testimony. And that was her argument.
It only means something though if they are reliable. You're going to see it's not, from their own testimony.
This is not a drugging case and yet so much is spent on this theory of drugging.
And then this kind of fifth element, that the government needs to prove, that the def is not guilty if he reasonable believes the woman consented.
It's the government's burden to prove what the defendant's belief was. If they don't, it's not guilty.
Let's talk about Jane Doe 3.
I like Ms. Anson very, very much, but this little inconsistency thing is really important.
When you look at what JD3 said in court versus what she told Det Reyes in 2017, is it a little inconsistency, or something more important?
Let's set the stage. According to JD3, she contacts the church in late 2001 or early 2002 about the anal sex with Danny. From that point forward, she never mentions to the church, her husband, to Austin PD, to email that Ms. Anson read through, she never mentions what is charged in this case. Let's be clear, the charge in this case is a November 2001 rape by force. That's the only charge with respect to JD3.
In speaking to various people or sending emails, she never mentions -- and by the way he raped me violently in November 2001. Never. When does it first come up? In the interview with Det Reyes.
Reyes says, any other domestic violence. JD3 then mentions the hair-pulling incident.
Trial: "I can't give you much." "30-minute ordeal." "I felt trapped." "I was screaming, yelling." He hit me, spit on me.
That is what she testified to in this trial.
Let's take a look at what she told Det Reyes
"I was on my back I guess..." Is that a problem for proof beyond a reasonable doubt"
"He got on top of me to wake me up... I pulled his hair to get him off me." "And was he trying to have sex? Mm-hmm."
I've been trying to dunk a basketball for 57 years, I never have.
"Was he trying to force himself...and you were trying to push him off." "Uh-huh."
Look at the difference in versions. In 2017 versus a week ago. What else is striking? There is no indication of penetration (in 2017). There's no penetration, period. At that point you can forget everything else if you want to be true to the jury instruction.
By the way, Mr. Mueller will say something very compelling about Reyes saying he was trying. But look at what was said. Is this proof beyond a reasonable doubt that there was penetration?
And what do we make of the fact that the interview in 2017 now looks like this at trial. Is that a little inconsistency, or is this really scary. It's horrifying. That someone can say this 16 years after the incident and then five years later say that, and that that guy's going to be convicted on it.
What are we going to hear, that Reyes didn't ask the right questions? That she made a comment about almonds?
Whatever inconsistencies come up there will be an excuse for it. Whether it's Schlegel's brain fart. The almonds. Or Scientology. For every inconsistency there has been an excuse or explanation.
JD3. She then took us through her post-rape interactions with Danny. Number one, she had sex with Danny after they broke up, a few times. Does that mean she was not a victim of rape? No. But can you take it into account? Absolutely.
Remember the time they had sex, they were at a party they ended up at his house. They started fooling around, she started crying said she didn't want to have sex. And what happened? No rape, no sex, no penetration. They went to sleep. Does that sound consistent with the picture that JD3 painted for you?
Fast forward to New York. She invites him out with her friends. Thy end up at his hotel room, and they start to fool around again, Danny takes out a camera, and she says that's it, I'm done. What happened then? They went to sleep. no force, no violence, no threats, no penetration. And what really struck me, you want to talk about contamination, she was asked why she stayed at his hotel room after that, after she said I'm done with you. She said, I didn't have a key to where I was staying. That's why you stay in the hotel room of someone you say was threatening you, raping you?
Mr. Mueller will tell you this is what Dr. Ziv talks about, everyone reacts differently. OK, let's put this over year. Is it possible that JD3 is not being truthful about her relationship with him? Years later she gets in an argument with her husband? because he finds out that she still has a relationship with Danny, and is friendly with him. Is it possible that her dynamic with him is not what she's said here? If that is reasonable, that is what you have to accept.
I think even Dr. Ziv admitted that people can react in a myriad of ways. That's why it's important to look at the circumstances.
Jane Doe 1. Let's start with the Sept 2002. As an aside, you guys have been fantastic. You can tell people who are paying attention, and this isn't an easy job, being a juror. There's a lot to pay attention to. And honestly, it's only going to get harder when you begin to deliberate.
So, to put it in context, Sept 2002, not charged. But it's really illustrative of her.
Mueller asked her, you were out at this bar, were there any cues that he was into you?
No cues, no signs of any interest.
JD1 sat on the stand, that's what she told you.
Det Myers then testified. Now JD1 might say she doesn't remember Det Myers, but Det Myers remembers this report. (She got assigned after Schlegel.)
Det Myers told us -- and maybe it's interesting that JD1 doesn't remember hr or doesn't want to tell you she remembers her -- Det Myers talks to her on the phone and then has her come in to give an interview in person.
Det Myers is told by JD1 that on that night in Sept 2001, Danny was hitting on her repeatedly. Did Det Myers get that wrong? Did she have a brain fart? Is she incompetent.
They end up back at his house. What did she testify to? That they were having vaginal sex, she fell asleep and she woke up to anal rape.
What did Ms. Anson tell you in her closing? She knows this is a problem because this is not what JD1 told Myers. Anson represented to you that they were having vaginal sex and his penis then touched her. She never told you that she was sleeping and then woke up to his penis trying to get into her anus.
What JD1 told Myers: During consensual sex his penis touched her anus. Masterson stopped and immediately apologized.
Now, by the way, that consensual sex has turned into rape.
She said that a couple of months later Danny called her, said a rock had gone up his butt, and now he had this motivator, this karma, this comeuppance. And I believe JD1 wanted to phrase this as a confession: I know how it feels now.
What did she tell Myers: That she had found out Danny had been injured, she called Danny, and she never made any mention of any motivator, karma, a comeuppance, nothing.
Is this a little inconsistency, from 2004 to 2017 statements are completely changed, or invented? Is that inconsistency or an issue of bias, of credibility.
We now move to the April incident. By the way, something important between September and April. She went back and forth about how much she had to drink that night. JD1 told us that her tolerance for alcohol in September was not good. she hadn't been drinking in 9 months.
In April she tells us it had gotten much higher. She tells us between Sept and April she's gotten a lot of problems and it's caused issues with her friend group, related to having sex with Danny.
Now we're up to April 2003. JD1 testified that there was no drinking before she got to the house. Have we heard anything contrary to that?
Anybody remember? Cousin Rachel. She told us that JD1 had told her that she had gone to clubs, plural, celebrating a birthday and that she had one to two drinks at dinner. You didn't hear that from JD1. Remember that instruction? You can compare what one person said to another.
And what did Dr. Ziv say? That people often underestimate what they drink.
JD1 was untruthful, she did drink that night. And she may have underestimated how much she drank. And if you determine that, you should consider not believing anything she has to say.
We then went through a whole slew of contradictions. I'm not going to bore you with all of them. There's a lot. A few.
(She told you that the drink was brought out to her.) The Knowledge Report indicates that she walked into Danny's kitchen. That she had asked Danny, pour a drink, in the kitchen.
She then takes you through the house to the jacuzzi.
Now, you can convict someone just on testimony of one person. But that person has to be credible.
JD1 told you she absolutely told the LAPD there was a gun. And lets' be real, this gun, according to JD1, was not some incidental side event. I asked her, I had her walk through, take me through everything that happened with this gun. And it was about ten minutes. Where it came from. What it looked like. How it was held. How she struggled to get it -- so she could shoot him. Does that sound incidental to anything?
What did Schlegel tell you? Myers? And before we write off Schlegel as incompetent who rose to now supervisory detective. You don't get there through a lottery, you get there through hard work.
Det Myers is Det 3 now. Both told you, if there was any mention of a gun, they would have put it in the report. And if the govt's argument is you can't rely on Schlegel, you can't rely on Myers, you can't rely on Reyes, but you can rely on JD1, is that the horse to ride? Is that proof beyond a reasonable doubt?
This bruising. Why is this important. It's important for a few reasons.
(Puts up photos of JD1 in bikini.)
Oh, by the way. One important thing about the gun. Danny had a registered firearm in 2001. What has happened in between JD3 interviewing with Schlegel, Myers, and never mentioning a gun.
Before she talks to Det Myers in 2017 [probably means Reyes] who has she talked to in the meantime? She has talked to JD3 ,who lived with Masterson. She needs to prove a forcible rape. A gun ends the story. A gun is forcible rape. She speaks with JD3, and now this gun first appears in her version of events.
So here's the picture. Let's talk about why these pictures are important. They're important for a number of reasons. How did JD1 tell us she was in Florida? Pain 10 out of 10. Intestines on fire. Vagina in pain. And bruises everywhere.
Remember they were comparing her to her grandfather with a bleeding hematoma on her head, and they told her she looked worse than he did. But here are the photos. Does this look like someone who is 10 out 10 in pain and covered with bruises? Is that the bruises covered everywhere? Is that evidence of a forcible rape?
What more do these photos tell us. She certainly seems happy. She does not appear to be in any stress. Doesn't appear to be 10 out of 10 in pain.
What does Rachel tell us? I didn't notice any bruising before these photos were taken. Is this proof beyond a reasonable doubt? It is not. It belies bruises everywhere. It belies 10 out of 10 pain. It proves that JD1 is not truthful. And what do you do with a witness who is not truthful?
JD1 provided a statement to her church, the Knowledge Report. She testified that she prepared and gave that report in June 2003, shortly after this rape. What did she tell Det Myers? That she gave the KR to the church in December, some six months later...
Remember, Myers has her sign the KR in her presence, attesting to it. So, when JD1 tells you that this was written by someone else, I was told what to put in it or to keep out of it. But she attests to its veracity for Det Myers.
When you look at that report, you see a slew of differences from what she said to Schlegel, Myers, Reyes, and you all.
In her Knowledge Report, she said she wok up next to Danny, told him she didn't remember what happen. And what are we going to tell Luke. Could it be that she didn't remember? Perhaps.
With respect to JD1, right around the time that she goes to LAPD in 2004, she also makes a demand, through a retained lawyer, makes a demand to Danny, basically pay me money and I won't allege rape. what was going on with Danny in 2004. His career had been great, was getting greater. (Obj, stricken.)
In 2004, JD1 has a draft complaint sent to his lawyers, and it ends up in a resolution. She keeps referring to is as a non-disclosure agreement. Let's look at what it truly was. "Confidential Settlement and Non-Disclosure Agreement." And both sides agreeing not to release any information. Routine.
We heard about how it was done, like it was a back-alley transaction under a flickering light bulb.
In the agreement it says, how the agreement should be handled in a dispute. Specifically it talks about binding arbitration according to California law.
Why is this important? Seemingly means nothing. What you have heard from JD1, and from all the Jane Does, is that Scientology says you have to handle everything in-house, we don't deal with courts, with outside things. You have a resolution, a confidential settlement, between two Scientologists, that specifically calls for a California court to settle matters according to the civil code of procedure.
Why have we heard so much about Scientology? Could it be there are problems with the government's case otherwise?
You have a jury instruction about Scientology. "You may not consider this evidence for any other purpose..." State of mind, why the JDs might have done certain things. "...you may not conclude from this evidence that the defendant is a person of bad character or has a disposition to commit crime."
On that note, it's funny, Ms. Anson has indicated that I was making this grand conspiracy. Lt's look at this admonition, an instruction from the court.
"No evidence was presented to you in this trial that Mr. Masterson was involved in any harassment or stalking... this evidence is not being admitted for the truth of those allegations, or that Mr. Masterson was involve din those allegations."
I'm not dealing with conspiracy, I'm dealing with a whole lot of inconsistencies. But the law tells you you cannot use it against Mr. Masterson.
Taking a 10-minute recess.
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“She underestimated the number of drinks she had ... so let’s not believe anything else she said.” Uh-huh. Right. Wow, Cohen is really reaching and planting suggestions of mendacity all over the place.
Really hope DAs get to do a final redirect after this torrent of misdirection?