Defense asks for mistrial over Scientology: Danny Masterson trial, end of day 5

[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. We are reporting live from an ongoing trial and we do not have time to make such corrections.]

After the afternoon break

Bijou is wearing a shift dress with a belt. (A reader asked this, and I asked another reporter to describe it for me.)

Jane Doe 1 still on the stand.

Mueller asking about the incident that interrupted her relationship with Brie Shaffer. There was supposed to be a meetup that involved Mr. Masterson, and it was at a small theater.

How did you get there?

I drove.

Was Masterson there?

He was late.

Did Brie Shaffer show up?

No.

Then what happened.

We went to the Lucky Bar, which was next door. I had a cigarette and tried to call Brie. I made a revised plan with her.

What was that?

She was in a fight...

Objection

She was going to join me later. I wanted to have a drink, Brie said have a drink and I'll join you there.

Who went there with you?

I walked in by myself. I remember Danny because he had a drink. There were maybe eight at the booth.

You said you had a drink.

A greyhound. Grapefruit and vodka.

How did you get it?

It was sitting there waiting for me. Danny ordered it.

How did you know that?

He handed it to me and said here, have a drink.

Up to that point had you had any drinks?

No.

Did you drink it?

Yes, I stepped outside. I called Brie. She was not going to be coming... (Obj, sustained)

Plans changed?

Correct. It was arranged that I could stay in his guest room. In the morning she wouuld swing by and get me, and I would take her to the airport and then come back and get my car.

Who made that arrangement?I ha

Brie and Mr. Masterson. (Obj, overruled)

Did you and Masterson talk about this?

Yes, he said you can crash in the guest room.

How long did you stay?

About an hour.

Did you get another drink?

There was another round. I began to drink the second one. It was stronger. (Also a greyhound.)

At some time you left?

Yes, around closing. Before 2 am.

So you left some time prior to closing. Where did you go then?

To his car and he drove to his house.

Anyone else going with you?

No.

How did you feel about that?

I didn't have any feeling about it. Good question, I don't remember having a feeling about it.

Had you spent the night there before?

Yes.

Was there conversation about it.

Just that I was going to crash in the guest room.

What time was it?

Around 2 am.

I was really drunk. I couldn't walk up the stairs. I broke my heel. He was pulling me up. I was really loud and laughing. He shooshed me. I wanted a cigarette. When we got to the top of the stairs I sat down right there.

Close to the front door?

Directly in front of the front door there was a patio, circular table, two chairs.

When you say you were really drunk? What did you recognize about yourself to conclude that?

I was stumbling and laughing and everything was really funny.

So you're out front, at some point you go inside. What happened.

I'm a little blurry. I wanted water. I had a clear drink. It could have been water, could have been alcoholic. He grabbed my wrist and started pulling me upstairs.

What were you saying?

This is stupid, and What's happening? I kept saying what's happening. He was saying I was too loud.

You had a beverage?

I had a clear liquid, but I don't know what it was. He grabbed my arm. Come on, come on. We go upstairs. It's blurry. The memory is blurry.

So you get to the top of the stairs.

I assume so, I don't have a distinct memory. My next memory is being in the bedroom.

What happened there?

We're kissing. And I looked at him. This is stupid, what are we doing? He started taking my clothes off, I kept laughing I thought it was the stupidest thing. It was ridiculous.

Then what happened.

I fell asleep. I remember him moving my body. What are doing? Then was on my stomach and I felt this really sharp pain on my rear side.

Do you recall getting on the bed?

Not really. I reemember being on the bed, and my stomach was on the bed and I felt the pain in my anus area.

Do you remember how you got in that position?

Not really.

Do you remember him being on there with you?

Yes.

Where was Masterson in relation to you?

He was standing behind me.

Standing?

Yes. My feet are touching the floor, my stomach is on the bed.

What about your clothes?

I don't remember having clothes on.

Why do you say that?

Because I remember his penis going into my vagina.

Do you recall how your body got into that position.

I remember that after kissing, and intercourse begginning and I remember he wasn't laughing back. I remember him moving me. But then i remember my feet touching the floor and I thought, what? It was dark, a very dark floor.

You said you had these greyhounds befoere. Would you say based on what you had that night, would you say that was consistent? (Obj, overruled)

I believe it was consistent with what I drank. He told me later they were doubles and the last one was a triple.

What were you wearing that night?

I had black striped pants, a purple shirt, kind of short sleeve, with a cinched waist.

When did the kissing begin?

In the bed.

Any kissing in the car?

No. He was blasting music, conversation, more of a normal exchange.

Any kissing by the door when you were having a cigarette?

No.

Any discussion of sex before you got to the house?

No.

Any suggestion that there would be intimate contact when you got to the house?

No.

The only hint that there would be kissing was in the bedroom?

Yes.

Once you felt the pain, were you able to see what was happening to?

No, I pulled from the pain because it hurt so bad. I grabbed the sheet to pull at it to pull away. I didn't know what it was at first. (She's very emotional.)

You said earlier you were having sex in your vagina. At this point, where was he penetrating you?

My anus.

You said he was standing. Did his position change?

I don't know, I pulled with one hand and reaching back with the other hand and swatting him. I don't know where he went. It was dark.

Was there any penetration of your vagina?

Before that.

How did it start?

We were on the bed, kissing, at some point I felt his penis in my vagina. I said, wait what are we doing?

Asks her to describe that situation.

I was on my back, he was completely on top of me.

No parts of you hanging over the edge of the bed then.

No.

Did he have any clothes on?

I just assumed he was naked.

How did you feel when you were kissing on the bed.

That it was stupid. It almost felt incestuous.

Why do you say that?

Because we were all friend. He was my friend's boss. It was like he was a brother. Like a mean brother.

Did you say anything to him while kissing started.

I said it was stupid, said it was funny. He said why do you think it was funny? Yeah, he said that. He didn't understand why I thought it was funny.

How did the penetration of your vagina start?

I don't know how to answer that.

In other words you're on your back, was there anything that led up to that, any conversation?

No.

Then what happened when you were kind of standing and bent over.

I was tired, I wanted to go to sleep. I thought he was sort of making room to go to sleep, but then I felt my feet hit the ground and I thought whoa. It was disorienting. It was very dark.

You said you were drunk. What about him?

He seemed OK. He drove. And I was the out of control one.

What did you think once you realized he was in your rectum?

I didn't know what was happening. I felt the pain. I hadn't done that before and I couldn't believe the pain. I literally, it was such a pain.

Did you say something to him?

I screamed no to him, really loud.

Did he stop?

Yes.

What happened next?

I fell asleep. I curled into a ball and I don't remember much. I woke up the next morning.

Was he in the bed next to you?

No.

What happened next?

I woke up in the morning. I recognized it was his room. He wasn't there. I was naked. I realized what had happened and I went ugh. Then I remembered what had happened. I went to the bathroom.

How were you feeling in the morning?

Terrible. Horrible headache. Nauseous. Hungover.

You said you went to the bathroom. What happened?

I was looking for a used condom.

Did you find one?

Nope.

What happened next.

I called a friend for a ride. I had to get back to my car. I didn't have my keys.

Did you get a ride?

Yes. To my car.

Where did you go?

To my home.

Did you talk to Masterson that day?

No.

Judge Olmedo steps in. She wants to break for the day. She wants to do some things outside of the hearing of the jury.

Mr. Cohen wanted to make a record.

Cohen: We have had a significant amount of litigation over the introduction of Scientology and Scientology language and policies in this case. Both in the 995 motion and the 402 motions. This court has repeatedly said this case is not about Scientology, correctly.

In opening statement Mr. Mueller said two things. One is the allegations, and the other thing is Scientology policy.

I can't tell you how surprised I was to hear that statement. AFter everything the court said.

We then get into testimony, and I'm not trying into flow, but I did find it necessary to make relevancy objections.

We then start to hear about various policies that were never a part of the government's proper request in the 402s. Number two, I don't see the nexus between the policies asked about, and eliciting things, such as derogatory names for non-Scientologists. Such as specific things that JD1 was told and shown, which I think is very different from JD1's understanding.

Then this testimony came up, about this strict Scientology prohibitio of fraternizing with the enemy. I have never seen that before in any transcripts of this case. The position that puts the defense in that is so problematic and prejudicial.

I have no understanding of the nexus or purpose of the testimony I've talked about. Specifically the derogatory names and fraternizing with the enemy. The jury has now been told on day 1 that Masterson and his religion looked down upon those who are not the same religion.

Olmedo: That's not unique to Scientology. (She suggests it's not prejudicial.)

Cohen: Jane Doe 1 has never blamed that policy for not reporting to the LAPD. The jury is going to assume that she has some reason to believe it. Or does the defense have to cross-examine on that, and make this trial about something else.

Olmedo: Someone's beliefs come from somewhere. She's indicated she was born in Scientology. The inference is that her beliefs come from somwhere. Her belief is based on something...

Cohen: Well...

Olmedo: Don't interrupt me. Obviously I was concerned where the People were going, and I strongly admonished the People before the break. I felt both sides were pushing the boundaries. I appreciate your concern. But I don't know how surprised you were, becasue your last slide showed an elephant filled with Scientology terms. So you obviously prepared for this. I asked Robert to get the transcript of my Oct 4 ruling on Scidentology, and both sides should look at it. I ruled that Scientolgoy can come in for a number of reasons.

Whether or not you're left a quandary and you feel you have to bring in policies, that quandary was already there. She reminds him that it was the defense that brought in the policies and the ethics book in the preliminary hearing.

Your quandary is no different now than it was before the opening statements in regards to what the policy says versus what these policies believed. It's only coming in to help explain their state of mind. I'm not sure what you are asking the court now. You've already made a motion for a mistrial.

You're both very experienced lawyers, you're both very good lawyers. Please respect the court's rulings. I thought my rulings were quite clear, I went to great legnths to expalin what waould be admissible.

Cohen: You had said earlier if you were confused, look at the transcript of the prelim. I was not the attorney then. I looked at the transcript, there was nothing about not fraternizing with outisders. That might be true of a numbder of religions, but that should not be admissable in any trial.

Olmedo: So what are you asking the court to do?

Cohen: The first request is a mistrial.

Olmedo: THat request is denied.

Cohen: The second would be crafting a written admonition for the jury so it's clear to them. And so the People won't do it again. And the jury should hear something.

People want to respond?

Mueller: We were trying to lay foundation of the nature of the relationshp of the Scientologists. A tight group, not so much interatction with people outside. The point of that is because that becomes relevant if they are concerned about declare orders, losing family, friends. To undrstand the significance of what that means. Those wouuld be the people who ended up turning on them.

Olmedo: But that's not where you went this afternoon.

Mueller: I was asking about relationships with her friends and relationships outside the church.

Olmedo: I udnerstand that. Mr. Cohen's concern was her testimony that ousideers are considered the enemy.

Mueller: That was spontaneous. THat had not come out in our discussions before. THe purpose was to explain the relationships with the other Scientologists, to lay the foundation the impact of a suppressive person decalre.

Olmedo: Respond?

Cohen: Yes. We are going to hear from three Jane Does who have animosity for Mr. Masterson and his church. And if this first witness is going to go beyond the ruling, I don't knwo what's coming.

Olmedo: I will allow the People to admonish their witnesses to what is allowed about Scientology. I gave you a little leeway to explain this group all being Scientologists and it's a close group. But if you think there are policies that make sense to their actions later, I am asking you to ask those later when it's closer to those actions.

She says Cohen can draft an admonition, but isn't sure she will use it.

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