DA: Scientology attorneys got our discovery materials, defense denies it's the source

Morning session, Day 15 (Day 11 of testimony) Danny Masterson retrial

We'll be getting a new witness this morning from the prosecution. After yesterday's two corroborating friends of Jane Doe 2, we'd assume next up would be her two remaining witnesses, her mother and (ex-friend) Mariah O'Brien.

But we overheard something yesterday that suggests the government will shuffle things a bit and bring in the LAPD toxicologist this morning. We'll soon find out.

SARTORIAL SPLENDOR ALERT: It's another winner from defense attorney Philip Cohen, who this morning is rocking a dark plum suit, brown vest, and a tie that is somewhere in the magenta-fuchsia plane of existence. It's a bold choice.

Judge Olmedo says that some things need to be put on the record this morning. So we may be pretty busy before the witness appears. They start out with a side bar, then she goes to don her robes.

Mueller: The People became aware of an issue, mostly last night. There was an email that was sent from Vicki Podberesky on May 2, 2023 to our assistant DA James Garrison as well as our bureau director, and the subject is listed as "False reports of stalking by the Church of Scientology." In the email, Ms. Podberesky indicates that during the retrial, DDA Mueller asked questions to Jane Doe 3 that were intended to elicit answers he knew to be false. That the witnesses have filed dozens of reports claiming that the church has stalked them. That Podberesky met with LAPD Chief Moore and filed on behalf of the Church of Scientology a series of complaints with the LAPD, specifically that Det Vargas has left open numerous and false reports by the witnesses. Not one of the reports has turned out to be true, and that Mueller knows there is no merit to the reports.

Judge: What are you asking for?

Mueller: Along with letter, there were links to files. In the attachments, I don't want to say all of our discover, but a large amount of our discover was attached to these files. Emails between law enforcement and victims. Text messages. Police reports. Photos. We weren't able to get through all the attachments, but it's extremely troubling that all of our redacted discovery we turned over to the defense is now in the hands of Scientology

Judge: Are you sharing discovery with the Church of Scientology?

Cohen: No.

Judge: Then how do they have it?

Cohen: No idea.

Judge: Then we're going to issue an order to show cause, but for after the trial to find out how the discovery in a criminal case ended up there.

Mueller also describes that Scientology has asked the chief to open investigations of LAPD detectives who testified in the trial. Det Reyes (Myape) had some concern about testifying.

Judge: Are you referring this to law enforcement?

Mueller: Yes. Scientology alleging that during their testimony in the prior proceeding, the detectives had intentionally testified with a bias against Scientology, and the church is asking for an investigation into their "inappropriate" testimony.

Judge: I'm not sure there's any jurisdiction for the court in those issues. The only thing that causes this court concerns if criminal discovery has been shared with non-parties. The court will issue a protective order that no discover should be shared, redacted or not. (She adds this doesn't affect the defense case and work they do with investigators and paralegals.)

Mueller: Based on this email I did inquire with Vargas if he was aware of any reports of harrasment that he had determined to be false, and there are none. He did supply with me a log, I will provide it to the defense, that has to do with one of the complaints submitted by JD3 where there was some investigation by an animal abuse team, and I will turn that over.

Judge asks if they wanted any other action.

Mueller: We were looking to get some kind of protective order and follow up.

Judge asks them to write a proposed protective.

Cohen: This does segue into an issue that I had and wanted to bring up before Vargas's testimony. We've heard from all three JDs and perhaps Cedric that harassment has been continuing up to day of their testimony. I have not received any recent reports of any stalking or harassment. It was well before the first trial. I think it begs the question if any reports have been made to the LAPD, I think if they had they would have been turned over. And that nothing has been done, or that would have been turned over too. I don't want to start a trial within a trial...

Judge reminds him that the harassment is only being brought in for the state of mind of the witness.

Cohen: It also goes to their credibility. If they're saying there's harassment going on and they don't actually believe it. It kind of leads to the conclusion that the victims interaction with the DA's office, one would expect if there were harassment it would have been reported

Judge: I don't think that's true. I didn't think they were going to get into specifics, but they might feel harassed just by the presence of some of the people in this court even if they aren't doing anything.

Cohen: What I'd like to get is a stipulation or admonition that there have been no reports of harassment to LAPD from such and such a date.

Judge: I would first ask for you two to talk to another, because I don't know those facts. I totally understand your concern.

Mueller: For the record we did provide to Mr. Cohen a report from one of our DA investigators who had talked to all three JDs and compiled a list of all the harassment they were going through and that report was prepared in Oct 2021.

Judge: You two work it out. Now Judge Olmedo says she received a letter from Skip L’Hereux, and another from LJ Guillory, and the one from Skip asks why the court made an inquiry of him. I have the transcript of the brief colloquy the court had with him. Maybe two minutes long, and at the DA request.

And the letter from Mr. Guillory from Intl ad hoc religious something Committee, appears to be a complaint about the March 28 ruling about Scientology evidence coming in, specifically about the expert coming in.

Judge Olmedo says she's marking them as court exhibits and the court is not going to respond to them and she's referring them to a Judge Ocampo.

And she wants to make it clear that she knows neither of them are coming from Mr. Masterson or the defense.

Holley: Mr. Mueller provided an email about what they expect the toxicologist to testify to, including the amount of time that drugs could be detected in the system, and that doesn't apply in this case and we ask that it not be part of the testimony.

Judge Olmedo tells Mueller that she tends to agree, since none of the women testified to wanting to get tested after the incidents.

Mueller: There's a rapid absorption, and then there's a detection window.

Judge: But none of the witnesses even contemplating getting that window. So I will grant the defense's request.

PEOPLE CALL JENNIFER FERENCZ

Deputy DA Reinhold Mueller: Where are you currently employed?

Ferencz: LAPD forensic science, toxicology. I'm a criminalist 3. A criminalist is someone who may respond to a crime scene. Some assigned to the laboratory may examine the evidence. They generate lab reports. And they may be called to testify.

As a criminalist 3, are those your duties?

I have additional duties. It's a person with advanced technical training that is asked to handle special projects, etc.

How long have you been a criminalist?

About 15 years. My entire career has been in toxicology.

Mueller asks about her educational background, professional experience, etc. Are you aware of the drug scene and date rape drugs in the period 2000 to 2005?

Yes.

How?

From reading published materials. The first literature about date rape drugs emerged in the late 1990s and early 2000s.

In that period, what have been the most common date rape drugs on the scene.

Alcohol is consistently seen in drug-facilitate sexual assault cases. That period was driven heavily by the media so there was focus on ketamine, rohypnol, GHB and more attention disproportionate on that. But today, rohypnol is so hard to obtain, it's not seen in cases.

Let's talk about GHB first. What is that?

A compound naturally produced in the human body in low concentrations, but it can be used to produce a high, a euphoria and drunken feeling. (Being abused by bodybuilders.)

He asks about parent compounds versus metabolites.

She discusses how the body breaks down a drug, and how it's important for toxicology, that the metabolites indicate what parent drug was ingested. GHB is a psychologically active compound.

What are precursors?

A drug that is ingested and then once in the body breaks down into that parent drug. Typically it's not psychoactive, but easy to ingest and then break down to the parent drugs that have the effect.

Are there precursors to GHB?

Two main precursors that can be ingested and then break down into GHB and have the same effect. One is GBL and the other 14BD.

Did GBL at some point receive a Schedule 1 designation?

Not directly, but it's labeled a precursor and there are penalties for possession. (GHB was on Schedule 1 in 2000, precursors were then still available.)

What are some of the most common symptoms with GHB?

Lower doses have that recreational abuse profile -- euphoria, relaxation, and that high that a drug seeker might be looking for. Higher doses cause nausea, vomiting, lack of muscle control, dizziness, and at a high enough dose they will be asleep, completely sedated and unwakable.

Respiratory suppression?

At high doses.

This was commonly used in clubs as well?

There's evidence of that, yes.

Street names?

A lot, I'm not familiar with all of them.

How is it ingested?

A white powder or as a liquid. And the precursors were clear liquids.

The form as a liquid or powder, are they easily mixed in drinks?

As a liquid that is odorless and colorless it was believed it could be easily put into a drink without the person's knowledge. The powder form would dissolve in a drink as well.

How long would you expect to see the effects?

Depends on how it's ingested, we assume orally. It would start having an effect within potentially 10 to 20 minutes, and the duration could last as long as six hours. And again, that's dose-dependent.

Same for precursors to GHB?

In general if 14BD, it would take a little long to break down to GHB, but I would expect it to take effect in about 30 minutes.

Can you tell us about rohypnol.

A prescription sleep-aid that was available in the 1990s. Only needed a small dose to take effect. Only a small dose was needed to provide 6 to 8 hours of sleep.

What was the dosage form?

Either a one or two milligram tablet.

Can you tell us the symptoms?

If ingested orally, it would take 20 to 30 minutes to take effect, and it's a sleep drug so it would have an immediate effect on someone's muscle control, make them drowsy, and they would eventually fall into a deep sleep. It can also cause amnesia. So while it's active, their brain is not actively making memories. So people were encountering memory loss.

Would that be a blackout state? (Obj, overruled)

I would say that the person would be experiencing heavy sedation and the inability to form new memories.

Could that person still be walking around and talking to people?

Depending on dose: Enough of a dose they would appear to be unconscious.

CNS Depressant?

That's a drug that supresses breathing, body temperature, some sedation.

Alcohol is one?

Yes.

If one were to be ingesting either GHB or rohypnol mixed in an alcoholic drink, would there be a synergistic effect?

Yes. It's called an additive effect.

Asks about the drug overpowering the effects of the alcohol.

In general the drug with the higher potency will have a greater effect.

You have a 24 year old female in 2001 had one or two glasses of wine at dinner, after dinner had gotten up and began to leave the restaurant, and that is her last memory until the afternoon of the next day. She'd had no medication or alcohol other than the one or two glasses of wine. And the time from when she'd had the wine to getting up to leave was about an hour. She had never had an effect like that. The effects she was having the next day were inconsistent with the amount of wine she'd had, and no memory of what had occurred. Given that hypothetical, do you have an opinion that this would be consistent with the alcohol alone?

It's my my opinion that that symptomology is inconsistent with one or two glasses of wine taken over an hour.

Next hypothetical, 28 year old female in April 2003, was given a mixed drink of vodka and fruit punch. She indicated the taste was very sweet, she drank only about half of the glass, no prior alcohol that evening. Within 15 to 20 minutes she began to feel a loss of her strength. Slow and light-headed. She got into a jacuzzi, not unusually hot, in there for a short time, and began to feel more symptoms. Visual problems. Could only hear and smell. Felt nauseous, never felt that nauseous in her life. She said she could not breathe, couldn't get air, only the smallest breaths. These symptoms came on within no more than 30 minutes after the beverage. She had never had a reaction like that to any beverage, including vodka. Then she had instances of passing in and out of consciousness. Memory fragments of the night before. Do you have an opinion that this would be consistent with the alcohol alone?

That symptomology is inconsistent with that amount of alcohol consumed.

Lastly, assume a 23 years old female, has a few sips of vodka, perhaps a glass of wine. Later she is given a glass of red wine which she consumed. No prior medications. She began having flashes of visual to no visual to visual again. She described her vision being blurry, in and out of consciousness. Vague memory of certain moments, but described feeling very tired and "out of it." And that her body and head felt very heavy. Given the symptoms, do you have an opinion that this would be consistent with the alcohol alone?

Two total glasses of red wine, or just the one?

Let's presume that there might have been more than one glass, no more than two.

In general the symptomolgy is less consistent than the amount of alcohol consumed.

Presume in this hypothetical she had never felt symptoms like that with any alcoholic beverage.

Yes, that symptomology is less consistent than the amount of alcohol consumed.

No further questions.

CROSS-EXAMINATION

Shawn Holley: You just asked Mr. Mueller to clarify whether there had been additional alcohol.

Yes.

The reason you asked that because your opinion is based on the amount ingested?

yes.

And you are accepting what he is saying in his hypotheticals to form your opinions.

Yes.

You know nothing about this case? You haven’t interviewed any of the witnesses?

No.

When you were testifying about what a criminalist 3 does, they may report to the scene, gather physical evidence, assigned to the laboratory, generate reports.

Yes.

In this case you weren't on the scene?

No.

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And you haven't examined any physical evidence?

Related to this case, no.

Have you ever testified in a case where there is no physical evidence at all?

No.

Have you ever testified where the only evidence is self-reported by victim, who claims to be impaired?

Not me personally, no.

You were not a criminalist in 2000-2005?

I was not a criminalist, no.

So the only information that yo have about that period is what you have read in the literature, fair to say?

Yes.

And you would agree that there are external factors that affect how a person is affected by an intoxicant.

Yes.

A medical condition?

Yes.

The weight of the individual.

How a dose would affect them, yes.

How about hot water in a bath or jacuzzi?

With respect to some very specified drug it could have an effect.

Tolerance to alcohol, could that have an effect?

Yes.

With respect to GHB, you indicated that some of the common systems in high doses are vomiting, drowsiness...Those are also symptoms of alcohol are they not?

High doses of alcohol for that individual.

Rohypnol, you said only a small dose was needed to take effect.

Yes.

And that it would cause extreme sedation.

Yes.

And very soon after ingesting, a person would fall into a deep sleep?

They would experience sleepiness, yes.

No further questions.

No redirect. Witness is excused.

PEOPLE CALL MARIAH O'BRIEN

Deputy DA Ariel Anson: Are you familiar with the Church of Scientology?

O'Brien: Yes.

Are you currently a member?

Not currently, no.

Had you been?

Yes?

When?

Good question. Actively, 1992 to 2002-ish?

Through your time, did you meet someone named Daniel Masterson?

Yes. (Identifies him in the court, clarifies that the dates are to 2012.)

Around the 1990s to 2012, could you describe your relationship to him?

We met probably at a party, and we were part of a larger friend group. I think he had a relationship with my first husband, like he knew him before I met him. (She describes a circle of friends of about 25-30 people.)

Were you aware that he was dating someone named [Jane Doe 3].

I met her with him at two or three events.

Did you ever have a close relationship with her?

No.

How would you describe it.

I recall chatting with her at a concert. I remember chatting with her, as I recall she was at my engagement party. I have a visual picture of her attending that and talking to her.

So you were never close friends?

No, I never had her phone number of anything like that.

How did you meet Jane Doe 2?

I would see her around, and I feel like I became more acquainted with her because she became friends with my daughter/

and you were very friendly?

yes, there were years when she was in a very close circle of friends.

About the year 2014, she was one of your close friends?

Yeah, I had a car accident in late 2011, and I had seen her around, and I think I had seen her in the pursuing acting arena. So I definitely knew of her. And then I broke my legs and a number of people made an effort to come see me, so we got closer in 2011.

In 2014, in the fall, was there an incident at your house between you, Binki Shapiro and JD2?

Yes.

What happened on that day. Those girls came over for dinner. JD2 had asked Binki to take a walk, I prepared dinner. The way I recall it they were talking and then JD2 kind of stood up and accused Mr. Masterson of raping her. I had a five year old and nine year old sitting at the table, so I put a stop to the conversation. I said you have to leave. I was upset that she was having this kind of rant with my young children there.

What was her demeanor?

She was extremely upset, she was also getting mad at me.

After you asked her to stop, did she leave?

Yes.

After that conversation, did that affect the friendship?

I stopped talking to her.

And is that from 2014 to today?

Yes.

Is it fair to say, since that conversation you and JD2 are not longer today.

No, we are not. There were other things going on around that, but I Have to say that because it's the truth.

In November 2016, did you receive a message on Instagram from JD3?

Yes.

When you received that message, do you remember the date?

I remember that it was November 18, 2016.

In those messages, did JD3 ask you if you were aware of anyone else would accuse Mr. Masterson of rape.

Yeah, I think she asked me that. I don't have an eidetic recall of the conversation, but I remember her asking me that.

And in response did you tell her about JD2?

Yes.

Do you remember JD3's response?

Not specifically. "Oh my god, I can't believe that" -- something like that.

(Shows her messages) So what was her response?

She said, "Oh my God there's another victim."

And she said "Whaaaaaaat??!!"

Yes.

Did she also indicate that she had experienced a sexual assault at his hands?

Yeah, that was the nature of the contact she made with me.

Did she also say she had gone to the C of S the day after her assault? (Obj, sustained, stricken) After this conversation, did you talk to JD3 again?

I don't know.

Currently you have no relationship with JD3?

No.

No further questions.

CROSS-EXAMINATION

Cohen: In 2011, you break your leg.

Both of my legs and my left foot.

Both of your legs, are you house-bound?

I couldn't get out of bed. I wasn't allowed to for six months.

So a few people came over to keep you company?

Yes

And one of them was JD2?

Yes.

So whatever your relationship was, it got closer and stronger.

Yeah, she had known I had an accident, and she told my daughter, if she needs anything.

And during those visits you were talking.

I think she was administering reiki on me? I could be wrong.

Did you get closer?

During that time, for sure.

You talked about your life and experiences?

Sure, yes.

And this relationship with JD2, kind of continued through 2012, 2013.

Yes.

During that period of time, did she ever tell you she had been raped.

No, she didn't mention it until the other incident we discussed.

During that period 2012-2013, did she ever indicate she had gone out with Danny?

Yeah, I think I had an inkling that they had been on a date, or dated. I definitely knew they knew each other.

So your inkling was that they had dated? (Obj, sustained) Did JD2 ever indicate to you during this time, 2011-2013 that she had been hurt because she believed Danny had used her in some way.

I don't recall.

Might it have been part of the conversation?

I really don't recall that.

Did she ever tell you that she believed he had drugged her?

No.

During this same peroid of time, you and Danny are friends as well, in the same friends group.

Yes.

Did you do work for him?

Yes, on his house, extensively, as an interior designer.

In 2014 your relationship with JD2 the same as 2011-2013 or has it changed? Prior to the dinner?

I mean, every relationship has its flow. I would say it was changing as it went along.

At the dinner in 2014, Danny's name had come up?

I really wish I could remember how it had come up, but once this kerfuffle came up, I remember it distinctly. But she was trying to pull my friend out on to the walk. There was this other thing happening, there was already a tension...

Do you know if JD2 knew that you had done work at Danny's house?

She knew, for sure.

So this conversation, his name came up at dinner, and you said JD2 says, "Danny raped me."

Yes.

Did JD2 at that point say Danny had drugged her.

No. Not that I'm aware of. No.

When JD2 made this comment, that led to this kerfuffle.

Yes. There's two children, there's Binki, there's JD2...

Did she ever indicate to you that Danny raped her when she was 25 years old. (Asked and answered) There was some communication betwen you after?

No.

An email?

I don't think I saw one if there was one.

You never received an email from her, or you don't recall.

I don't recall.

Would it help to refresh your recollection...

Judge Olmedo asks to see him at sidebar.

Cohen: Is it possible that you received an email from JD2 that you don't recall.

It's possible she sent one.

Is it possible you received one?

I don't know.

Might it refresh your recollection to look at an email?

Sure. (examines document) I don't believe that I read that before today.

A couple of years later, you have some conversation with Jane Doe 3.

Yes.

And she makes some mention of a sexual assault on her.

Yes.

(Stipulation: Clarifies that it's the December 2001 incident)

Nothing further.

REDIRECT

How quickly after JD2 said she was raped, how soon did you ask her to leave.

Maybe three minutes? There was some back and forth.

About the subject she raised?

No.

Witness is excused.

Judge: We will take our morning recess

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