Evidentiary hearing, June 7
Leah Remini is here this morning with Jane Doe 1.
Danny Masterson's former defense attorneys Tom Mesereau and Sharon Appelbaum are here with their attorneys.
Deputy DA Reinhold Mueller is here, but Ariel Anson is on Webex, as is former defense attorney Karen Goldstein.
SARTORIAL SPLENDOR ALERT: No longer defending his client in a trial, attorney Philip Cohen has chosen a pretty casual combination of navy blazer, tan slacks, and gold tie. He is joined by Shawn Holley.
A couple of the attorneys who are representing the Jane Does in the civil lawsuit are in the gallery.
Judge Olmedo arrives.
Judge Olmedo goes through who is in attendance.
Mesereau represented by Ms. Matthai.
Appelbaum represented by Mr. Crowley.
For housekeeping matters, Mr. Cohen, my understanding is the defense will proceed today without Mr. Masterson present. (Yes.) With regard to upcoming. Count 3, July 31. People, I don't know if you're inclined to put your intentions on the record today.
Mueller not inclined to say something today.
So setting a date for People to state a position. (Cohen asks if it's OK to make that a Webex appearance, and Judge says fine.) They set July 11, and just for DA to state their position. Just a status conference for Count 3. (And if you want Masterson here for that, let us know, she tells Cohen.)
August 4 motion date, and then make it 0 of 60 for sentencing? Or you can pick a sentencing date.
Cohen: Can we make Aug 4 the sentencing date?
Judge: Sure.
Judge says she needs a probation report made for Aug 4, and indicating that Masterson is not to be interviewed.
Moving on to disclosure hearing.
Judge: I understand, Mr. Cohen, you are engaged in another court. (Holley too). I do have some questions I want to ask the attys. I'm not going to be placing anyone under oath... Going to be asking Mr. Cohen some questions. I do remind all attorneys under both sides... rule... that than attorney shall not make false statements... Just reminding you your duties to be truthful.
Judge: Mr. Cohen you said you did not turn over any discovery to Ms. Podberesky. That is your position.
Cohen: My position is I don't know if there's a basis to inquire... I'm going to defer to counsel about any information I have about this issue.
Judge; OK, and Ms. Holley you have also made a statement as to the discovery. If you want to add anything.
Holley: I confirm my previous statement.
Judge: Ms. Goldstein. I am going to ask you, did you turn over any discovery to Ms. Pod?
Goldstein: I have no personal knowledge...
Judge: With that said, Ms. Matthai and Mr. Crowley, would you also like to come up? Mr. Mesereau and Ms. Appelbaum, you can come up or stay where you're at.
Matthai and Crowley go to the defense table, Mesereau and Appelbaum stay in the gallery.
Judge: I do have some questions for Mesereau and Appelbaum, I will let you go in order. You want to state something?
Edith Matthai, representing Mesereau: Our position is there should not be an inquiry of either of them. We don't know the basis of this hearing. No statute that we are aware of that has been violated, that if there was disclosure, I made an inquiry by email to Mr. Mueller and Anson if they were aware of any statute that had been violated. I have received no response to that. My understanding that everyone agrees there is no protective order in place on this case. Indeed, Mesereau and Appelbaum asked for a protective order and got no response to that. In one case the Court asked the attorneys to meet and confer and that didn’t happen. In fact Mesereau and Appelbaum made a motion to seal material and that was denied. There's not sealed, there's not a protective order.
Judge: The defense has never asked for a protective order about sharing discovery material.
Matthai again brings up the issue of sealing materials, and that it was denied.
Judge: That was about exhibits, not general discovery.
Matthai: We are not aware, in absence of an order, any prohibition in the sharing not to the public, but if appropriate, sharing the information. and given the fact that this court doesn't have the power, (refers to contempt).
Judge says we're only talking about monetary sanctions. Matthai says there is no basis for that. You cannot use the general provisions of the court to sanction lawyers.
Judge says let's hear the People's position.
Judge says it was May 10 when Mueller told them about the material attached to an email.
Mueller: On May 2 there was an email that sent from VP to our office, to our bureau director Larry B..., there was a link attached at the very bottom. The People don't know if this was inadvertently left or intentional, but it did take us to 12 letterheads from Church of Scientology Int, all the 12 are dated Apr 24, 2023, which happens to be date of our opening statements, addressed to Chief Moore, and there were requests.
Clicked on attachments, we found the People's discovery in this case. Redactions that are like a watermark, clearly our documents. Total of about 570 pages in those 12 files. Some of those are date-stamped.
Judge: Your Bates numbers?
Mueller: Yes. I went through every page, and if you go through it, what you recognize is that these are material that have to do with investigation of harassment and stalking of each of the three named victims in this case. All of the reports, photos, there are some videos snippets, emails, text messages between victims and our detective. All of it is very specific to those claims, and almost cherry-picked, if you will. (Over 1600 pages of Bate-stamped, and here is 570.) My question would be, who did the cherry-picking? Were all 1600 pages turned over and Ms. Podberesky and C of S did their selection? somebody did the selection. And there's what we believe to be a violation of the court's own order, at least one I'm aware of, and I believe others. There was a transcript of Apr 23, 2021, there was a request from Mr. Mesereau requested documents of harassment. Det Vargas was here then, in-camera hearing held, court indicated that we are not going to litigate the harassment...
One of the letters of the C of S acknowledged this order. Quoting from letter by Scientology: This material recently came to our attention... These folders correspond to the folders from Vargas to court.
What information was given to the church that told them these were documents discussed in camera that day by Vargas, where does this belief come from? Looking at transcript of that day, the court ruled that the privacy concerns outweighed the release of that information. We believe it's a violation of that order.
What else is troubling is that those reports are clearly a violation of the victims' rights under Marsy's Law. There's personal information given out by the vicitms to Vargas about where their relatives lived.
There's two photos, color photos of one of the victims home, and on there is labeled the actual address of the home, the complete address, not redacted. In two different photos. Video snippets we had obtained showing one of the victims, she was videotaping out her backyard to the street, the neighborhood, clearly in violation of their privacy.
Judge: Letterhead all the same?
Mueller: It's captions CSI. and address on the bottom is 6331 Hollywood Blvd.
Judge: And all these 12 letters from CSI signed by the same person?
Mueller: Yes. That person is Kirsten Pedersen, CSI.
Judge: All 12 letters to Chief Moore?
Mueller: Yes.
Judge: What were they requesting?
Mueller: A criminal investigation into our two investigating officers, actually four investigating officers.
Judge: You said that Podberesky met with Moore.
Mueller: A week ago, I received a call from one of the LAPD captains, don't remember his name now, he said he was calling me because the Chief wanted him to reach out to me to let me know that there was a request to have a criminal investigation on 2 of our investigating officers, and that was apparently being conducted.
Judge: Vargas and Reyes?
Mueller: Correct.
Judge: And Podberesky's involvement with the letters?
Mueller: The only thing I know is it was her email that had the share link. So I have no more information about her request to Chief Moore. It was my understanding that Podberesky met with Moore.
Judge asks Anson if she has anthing else to add. (No.)
Judge: Podberesky was complaining about your conduct and Ms. Anson’s conduct in the 2nd trial that you were putting on false testimony about stalking and harassment that the JDs were testifying to, and in the email there was a link to these files.
Mueller: I don't know that Ms. Anson was named in there.
Judge: OK. The discovery, I did ask the People to provide an itemized list, which has been provided.
Mueller: Also have a complete binder with everything.
Judge: At this point, what if anything are you seeking?
Mueller: We would like the court to inquire and try to determine, how much of our discovery has been turned over. Where did it go -- CSI or others? Was it all turned over and the church decided what to utilize? When was it turned over? When we determine what was turned over, I'd like an order for it all to be destroyed. And monetary sanctions at least in excess of $1,000. My concern is much of this was police reports, and that is privileged. Apr 24 ,2023, that was the date of our opening statements, the witnesses hadn't even testified yet. This was an ongoing trial. The church would not be entitled to have these documents.
Judge asks if the police reports went beyond harassment.
Mueller: Yes. Some of the emails, text messages will discuss other things. About their children, when they go to bed, what lights go out. Yes, more information than just harassment and stalking. Also want the court to know, there were a couple dozen if not more LAPD reports, initial reports, preliminary investigation reports, follow up reports, progress reports, all dealing with these investigations that were ongoing. Probably a couple dozen, and again, all of these were, per the courts' ruling, not to be disclosed.
Judge: Based on the discovery log you provided that was in the possession of Ms. Pod, do you have any sense of when that discover was turned over? Was it turned over to Mesereau and Appelbaum, to Cohen and Holley?
Mueller: Yes, that would have been to Mesereau and Appelbaum, it would have been during a period of March 2021 through Dec 2021. Mostly March, April, and August of 2021, the majority of the discovery.
Judge: You said some of the discovery had personal identifying info about the JDs.
Mueller: Addresses, yes. I didn't see any phone numbers or social media accounts. And discussions about incidents that were happening at the neighborhood, you could identify where that person lived. A street name, an intersection, a description of their car. There was information that could easily you could identify where they lived.
Judge: Any information about sexual conduct in relation to the rape charges?
Mueller: Yes. So there was discussion with regard to the rapes in this case.
Judge: In any letters from CSI to Moore, does CSI identify that they are a party to a pending suit?
Mueller: I do not believe so.
Judge: So they don't identify that for the LAPD at all?
Mueller: I'd have to double check that.
Judge: did any of the letters identify that there was an ongoing criminal trial while they were requesting a criminal investigation?
Mueller: No. My recollection as I sit here is no.
Judge: Any information in those letters why CSI did not make the request sooner?
Mueller: That's a good point, the church from information they got in these reports, they got some names and license plates from the report, and they were able to locate those individuals and obtained declarations from those individuals, and they are dated 2021.
Judge: And with regard to the circumstances of Ms. Podberesky's complaint to DA's office, who did she indicate she represented?
Mueller: She indicated Church of Scientology.
Judge: Which entity?
Mueller: Church of Scientology International.
Judge: And the date of that email? That happened during our second trial?
Mueller: Yes.
Judge: Did she indicate there being a trial in progress?
Mueller: She made reference that there was testimony I was eliciting that she said I knew was false. But she didn't indicate the trial was going on.
Judge: What did she want?
Mueller; She wanted a meeting, by the way, she says "Last week I met with Chief Moore and filed a number of complaints, specifically with Det Vargas..."
Judge: And the date?
Mueller: May 2, 2023. And what she's asking for? There's really no request for a remedy. Just that she's making these allegations against me and wanted a meeting.
Judge: What allegations is she making?
Mueller: That during testimony of JD3 he was eliciting testimony (about harassment) that he knew was false...
Judge: So let me get this straight, there's a request for Chief Moore to open investigations of the detectives, then she's indicating to your supervisor that those investigations are completed and you're knowingly putting on false testimony.
Mueller: She's saying that Vargas is leaving open numerous false reports.
Judge: So even if they're open, but somehow they're proven false. Did she indicate to your office how she came into possession, or she just adds the link?
Mueller: Not in this email.
Judge: Any of the attorneys in the civil case contact you for discovery?
Mueller: No.
Judge: So you are able to identify the approximately 570 pages that were attached to letters from CSI, because they had your specific Bates stamps and redacted in a way that was specified to your redaction.
Mueller: Absolutely.
Judge: And those were turned over from March 2021 to Dec 2021.
Mueller; That's correct.
Judge: Ms. Anson, want to add anything?
Anson: No, your honor.
Judge, to Crowley and Matthai: I understand you have concerns. I will first go over the law. (Cites case law, about the court having power to order the attorneys to court and to sanction them, and that the court doesn't have to use the word "order" for something to be a court order.) The court does believe it has inherent power to conduct this hearing and question your clients. The court doesn't believe there has to be an expressed written court order for there to be an order not to share discovery documents. The court made numerous statements during contested discovery hearings. Repeatedly that this court would not be used for discovery in civil case, that they were distinct, and that Scientology is not part of this case and do not stand in the same shoes as Mr. Masterson and not entitled to the same things as Mr. Masterson.
So the court is construing this as lawful court orders and the sharing of information with third parties would be a violation. I would like to ask your clients some questions. I have done some research into attorney-client privilege and the Fifth Amendment. I don't think my questions go into those areas. (She asks if they want to confer with clients before making an argument. Matthai says yes, she wants to check with her client. )
Judge explains to Cohen and Holley that she thinks they don't need to be around, and they indicate that they are going to go (they have something else in the courthouse later). She also says the same thing to Goldstein.
Crowley: The court has said you're using your inherent power. The cases I've reviewed that rely on specific statutory citation.
Judge: My position is, my words were a lawful court order.
Crowley: In order to advise my client correctly, if you could point me...
Judge: I will give you the transcripts. With regard to specific authority. (She cites a criminal code about discovery.)
Hearings: Apr 23, 2021; Aug 9, 2021; Sep 14, 2022. (She cites numerous page numbers -- she's obviously been preparing for this.)
Crowley: For me really to assess, really I was here to protect my client. You have indicated that you did not any of the inquiry would go down... if we could have some idea where you're going with your questions.
Judge: I'm happy to share with you the questions and my take on atty-client privilege. Obviously I'm asking who they shared their discovery with, with Ms. Podberesky or some other individual with CSI or other entities? More discovery than People are aware of, what basis they were turned over outside the criminal process. And as for atty-client privilege, only applies to client, not a third party regarding something privileged. The burden is on the party claiming privilege, to establish the relationship...
The court can compel attorneys to testify about underlying facts. And the discovery was provided by the People. So the context you can't say was privileged between attorney and client because the information was provided by the People to begin with.
Crowley: Atty-client is not just about communications, it's also about consequences. (He's referring to a recent case.)
Judge: I'm just concerned with, did they turn it over, who did they turn it over to...
Crowley: I understand, Mar. Masterson has the privilege... If the court makes a finding, I want to make sure she's relieved of her duties...
Judge: I understand your position, but is it your position if the atty-client privilege was waived by Mr. Masterson, would she testify or would she take the Fifth Amendment?
Crowley says his main concern is that his client not violate any state bar rules about atty-client privilege.
Judge: Taking a 20-minute recess.
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So they are basically admitting without admitting that they did give the stuff to scientology “because no one told us we couldn’t.” Sort of like a 4 year old stealing a cookie and saying mom said I couldn’t have one last night, that doesn’t mean now🙄. I do hope Meserau gets branded as a scientology shill for this. That would be far better than monetary sanctions, at this point, he would have the choice of retiring or switching to a scientology only attorney if that happens, imo.
Yes, Tony was right. This is serious.
Ze Moo, I'll pop more popcorn, you bring your favorite local artisanal beer...🍺