Late afternoon session, Day 18 (Day 14 since testimony started), Danny Masterson retrial.
Cohen: We have Jane Doe 2 left.
Before we get to her, I wanted to talk a little bit about the toxicologist. A couple of things struck me. She indicated she had never before testified in a case where there were no forensic results to testify about.
This was the first time she was asked to opine about what a date rape drug would do, and the first time in her career that she had nothing to analyze.
Then he cites how poor the information is about how much was consumed by JDs. It is critical that if anyone is drugged you find their testimony reliable and consistent.
And without good information to rely on, the toxicologist said she really couldn't make an opinion.
Unless we know for sure what the drinking pattern was, this conclusion that they must have been drugged has no foundation to stand on.
I want to go back to JD3. She does not allege that she drank anything, that she was drugged the night of the charged incident. She said she couldn’t remember much, but it can't have anything to do with drinking or drugs She can't remember it because quite frankly it wasn't that big of a deal to her, as she indicated to Reyes, and it had been 16 years before.
And remember, she said this was a horrific 30-minute violent, penetration, screaming, yelling rape. And I ask you to compare that with what she told Reyes in her in-person interview. Is that a little inconsistency? Or a horrifying thing to be the basis for a conviction on rape?
(Cohen refers to the friendship between JD2 and her mother.) What I find interesting is that JD2 referred to a rape that happened six months earlier. And she says she tells her mom everything.
What else doesn't she ever make mention to her mom. (And remember, she threw up with her ex-boyfriend as well.) With respect to her mom, the other thing that JD2's mom never tells us is any reference to her being drugged. She never said anything about drugging to her mom, to Jordan Ladd, to Rachel. Never.
So you want to talk about contamination? It is about the nibbling around the edges to get a story that is a consistent theme.
With respect to JD2 and keeping in mind, what the elements are for forcible rape. This was JD2's testimony to you.
"When you interviewed with Reyes in 2017, did she ask you if he would ever hurt you?"
"I said at that time, when she was interviewing, I said no."
Now Dr. Ziv can come in and tell you that there's processing and I'm not pooh-poohing that. But is it reasonable when she told that to Reyes in 2017, she was telling the truth? If that's reasonable, it must be adopted.
And there's a reason that Reyes is asking these questions, she knows what forcible rape is.
She then asks, did you believe he was going to hit you? What did you tell Reyes?
"I said no."
Is that a reasonable scenario? And if it is, where's the force, or the fear?
With respect to JD2, she said she texted these parameters -- no sex. I'll come over but not get into the jacuzzi, no sex.
Those messages don't exist today. No pictures of them. But more importantly, she didn't say anything about them to her mom, to Jordan Ladd, to Rachel S. She didn't show the texts to any of them. And yet they became the cornerstone of the government's case, that she laid down these ground rules before she went over.
Now, he's focusing on JD2's feelings before going over to the house, that she was intrigued, flattered. And that her mother had said she was excited to go.
She said maybe this was Danny's way of flirting.
And before she went, she said she might have had a swig to calm herself. She told Reyes one or two glasses of wine or a shot of vodka.
If a swig calms her down, one to two glasses of wine, seems to have a significant impact.
When she got to his house, she wanted to drink. I asked her was it possible that she had more than one glass of wine. I don't know, she said. Is it possible you drank more as the night went on? I don't know, she said.
I don't know means I can't tell you. Could be one, could be five.
So when the toxicologist tells us the affects of a glass of wine, there is no basis to it.
Remember what she told Reyes, it might have been my idea to go into the shower.
He's suddenly inside her -- meaning there's no force or fear. And when she tells him no, what does he immediately do? He pulls out.
She said he "asked" me to go to bed. And in bed she's OK with kissing, with fingering, she said "I was getting into it with him."
And she told us there was "sex throughout the night." And he had "pretended to be a gentleman," because he had ejaculated on her and brought her a towel.
I would propose, is it possible that he was a gentleman? Is that reasonable? And if it is reasonable, remember that you have to adopt.
They talk afterwards. Does that mean there couldn't have been a rape? I’m not saying that. What I'm saying these are all factors for you to look at.
They stay up talking, and they end up talking on a balcony. And he says you're a passionate person and she says you are too.
I understand that Dr. Ziv was talking about reframing things. But is it possible that Danny did not see this as a rape?
And remember what she said: "It took becoming a woman to realize I'd been raped."
Is that going to be the basis of convicting him?
Afterwards, she waits for a call and it doesn't come. She called him, I thought you really liked me, and he said I have to go.
Then the discussion with her mother. No mention of drugging. No force. No violence. She said no, no, no. But what is the corroboration of that? Only JD3. As to what she may or may not have had to drink and before she got there. Can you rely, beyond a reasonable doubt, that she said no, no, no. And if she did, there's no force, there's no violence.
There were a couple of comments she made that may mean somehting to you. She said "Maybe this was just dominant sex, maybe he's just really bad at sex."
I'm not going to get to speak to you again.
As Mr. Mueller makes his arguments, I ask you to wonder, what would Mr. Cohen or Ms. Holley say in response.
And when we're done, the judge is going to assign that deputy to take care of you. That part I get teary-eyed about, it's so important.
I rarely wear a white shirt. I wawear a white shirt to every closeing. It's a solemn, solemn day to have this handed over to you. I ask you to promise me, you are goin to hear a lot of stuff, can you put that stuff aside an dfocus in on, what the evidence is, what the elements are. You promised me, regardless of what you think of me, or of Danny, I beg you, live up to that promise. It is truly the most important decision you will make.
Five minute break before rebuttal argument from Deputy DA Reinhold Mueller
Mueller: As you heard I'm going to be starting the closing argument, but we will likely have to resume tomorrow and finish it up tomorrow.
When we began this trial, if you recall, I asked each of you if you would listen to the witnesses and pay close attention as best you can as they testify.
And I know you did. And I asked you that because by paying close attntion to their tstimony, you become educated triers of the facts. And that's what we went you to be. Becasue in education of facts is the truth.
In listening to the witnesses and what the experts tell you, you will be able to make your own conclusions about what is reasonable.
And what you have heard, we want you to be reasonable. If you find evidence that is unreasonable, you must reject that. We only want you to consider what is reasonable. You've heard that word a lot. It's in our burden as well.
Now, being a juror and I have to say I do not have any firsthande xperince of it. But surelly it's an inconvencience, but it's a rsponsilbiyt and a duty. and more than that, it's an honor.
You're not herel, 19 of you, by accident. You remember ther was a pretty big pool, you were all chosen to be here. It's an honor and your responsibility will be, when the case gets turned over to you, to look at evidence carefully, and make that determination youreselves what is reasonable and what is not.
Now I want to show you a slide (faces of JD1, JD2, JD3, and KJ). The women who were raped. And I put it up there because, you know, its not bad enough that this man over here raped them, but he did so by drugging them, incapacitating, them, by breaching their trust, for some of them, and for JD3 dehumanizing her, calling her white trash, spitting on her, pulling her hair, horrible things.
So as I listen to Mr. Cohen coming up here, and look he's got a job to do and that's fine, but when I listen to him and I hear what these womwn have gone through, he now gets up here and essentially indicates that they're liars. That there's some kind of conspiracy-light going on. That they have this motive because it's all about money, they want to sue about money. Or they have some animus for the C of S.
Don't be fooled by this. Why do I say that? Because there is no proof of that. No evidence that any of that is true. It's very easy to get up here -- as I've said these four women have gotten up, and three of them are still suffering the harassment and stalking. And they're up there telling you what happened to them years ago. they told you why they didn’t come forward, initially.
They told you what it took to report to law enforcement. There is no evidence, none that they have done anything but come forward and speak out, and have their voice be heard.
It's easy to call them liars, but where's the proof?
It's easy to say they want to get back at the church, where's the proof?
It's easy to say they want to sue for "a lot of money." Where's the proof?
This is about evidence that has come in in this case. Not some speculation. Not some attorney's theory. It's about the evidence. And wehen you hear, is it possible that, we heard Mr. Cohen say, is it possible tha tthey could have had a omotive. Is it possible that thye could be lying? Is it ipossible, is it possible (Obj, Judge admonishes jury over argument). And when you hear Mr. Cohen say, could it be?
That's your cue to ask, is there evience to support that.
And there might be times when you're deliberating when that question comes up from one of you, is it possible for this? That's when you look at the evidence. Is there evidence to conclude that that is true.
When you ask that question, you will see there are no liars. There's no conspiracy. There's no money grab. That this is not some kind of attempt to get back at the Church of Scientolgoy. Don't be fooled by that. there is no evidence for that.
(Evidence that thy had disclosed to others long before they had heard of each other. Citing experts Ziv and Ferencz, the toxicologist.)
You're ready to evauluate this evidence.
Mr. Cohen got up here and said that jury instructions are critical. Absolutely, I agree. They are critical. He had a little to say in regards to our mention in opening in regards to inconsistencies. Mr. Cohen said that was horrifying, claiming that we would ask you to ignore that. He was horrified. He gets up and shows you why he's so horrified. He shows you his poster board of one of your jury instructions, #226.
The problem with his poster board was it didn't have all of the instruction on it, as he's telling you about minor inconsistencies.
You will have a copy of #226 in the jury room.
On page two, the portion that is not on Mr. Cohen's poster board is, "do not automatically reject testimony just because of inconsistencies or conflicts. Determine if the differences are imporatant or not. People sometimes honestly forget things..."
So that's what you need to consider as you go through the evidence in this case and looking at whatever inconsistencies you might perceive.
You heard about that a little from Dr. Ziv. (About the process, about what it's like to report something horrible that happened, and having to worry about the impact.)
Now they're sitting there in an interview room for the first time, being asked about a horrible thing that happened to you. For JD1, she reported on something 13 months after it happened. I would say that that's the first time in 13 months where she has to sit in front of a law enforcement agency -- one she's been taught not to trust -- and sit there and give every single detail about what happened during that interview? It's not how it happens and you know this. It's not how we communicate. You open up with some significant details.
You don't even know the significance of that first interview. Where is it going? Soemteimes you're testing the waters. Some of the details may not come out initially, and that's normal.
That's how we are as human beings.
Now, on this one, since I had it up, #226, I'm going to show you the second page again. Mr. Cohen calls this the "liar, liar pants on fire" instruction.
(That if you think someone lied, you can consider disregarding everything they say. Or accept part of what they said.)
But he points out that it says "deliberately lied" about something "significant in this case." You have heard no proof of that. No evidence than anyone deliberately lied about anything significant in this case.
He refers to the drinking of a glass or two and the details of that. Did you hear anything in there with regard to being held down? To being choked? Smothered with a pillow?
That these important things have been consistent throughout. Details from the jacuzzi, for example, consistent in every interview.
JD3, in her 2001 incident, having to pull his hair to get him off, him hitting her in the face. Her having to struggle to get him off.
With JD2, being flipped and forth like a rag doll, vomiting in her mouth.
By the way, I'm going to jump ahead, that evidence with regard to evidence and JD2, regardless of how she was feeling, that evidence where she's in the bedroom and he flips her and penetrates her. She tells him no, I don't want to have sex. And he's so forceful she vomits in her mouth, and he's holding her hips -- that's force. You don’t need anything else.
JD1, the gun. There's that "is it possible" that she made up the gun to make sure it's a forcible rape. You ask yourself the question, is there any reasonable that she just mentioned it for force.
There's no gun needed to establish force. There's nothing in the law about needing a gun to establish forcible rape. What she described, when she wakes up and he's on top, adn she reaches to grab his hair, or grab a pillow and she pushes it back into her face, and at one point he pins her arms down with one hand and with the other grabs her throat? Folks, that's force. you don't need a gun to establish force. There's plenty of evidence wth that alone tha tthis is a forcible rape.
And by the way, f that wwas the motive for JD1, to invent this gun so she could gbring in the forcible rape church, wow, whwat a horrible way to do it. I mean, someone who is of that mindset, th tahtye want to deliberatly lie, that he held a gun for a few seconds -- that's the story you're going to create, really?
Is that reasonable or not reasonable?
It's unreasonable, of course it's unreasonable. You all know that.
And once you've determined that something is unreasonable, you must reject it.
Now, let's just kind of get one thing cleared up right now. And this is from Mr. Cohen as one of his big picture themes, that the govt did not call the lead investigating detective, Mr. Vargas.
(Makes a reference to Perry Mason.) I don't remember the prosecutor ever winning a case. Perry Mason won every case. And in that show evidene would come in and it was a surprise.
That's not reality anymore. There's this thing called discovery. Both sides are aware of all the evidence before the trial starts. We know the witnesses and what they're going to say. We know it all ahead of time.
Mr. Cohen had the opportunity, if he thought that Det Vargas had anything useful for his case, he had the same opportunity we do to call Det. Vargas. So to somehow point the finger and say ha-ha! The Peopld didn't call det Vargas! Well, you know what, Mr. Cohen didn't call det Vargas. If he thought that was so important, he could have called him.
Judge Olmedo excuses us for the day.
Mueller will complete his closing argument in the morning and then the jury will have the case.
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I'm glad they ended with Mueller and Mueller has more time to think of things to say tomorrow. Praying the words that come out of his mouth ring truth in the jurors ears and that justice is served.
For Cohen to say maybe Danny was really a gentleman for bringing the towel, thus you have to find him innocent? That is just nuts, I can't believe the jury would fall for that given the context of the victim's testimony.