Actress Jessica Barth ('Ted') has joined the gallery. She runs a non-profit that "provides solutions to gender-based issues of equity and safety in the entertainment industry." She's here to support the victims.
Judge Olmedo, on the record while we wait for jury: I've reviewed a transcript in 2022, Ms. Goldstein had asked not to refer to victims as "victims." They agreed with alleged victims until closing arguments, and it was an agreement between parties, not an order of the court.
Jury coming in.
Mueller continues: This morning we spent time talking about the evidence you're going to hear from the victims and some of their witnesses to whom they disclosed. There are some additional witnesses you are going to hear from. Three expert witnesses. There's Jennifer Ferenz, MD, a criminalist with the LAPD, a toxicologist.
She's going to talk to you about drug-assisted sexual assault, about date-rape drugs, and about some of the common symptoms of ingesting a date rape drug. She's going to talk about how quickly they are metabolized. And that there's only a narrow time to detect the drug.
She'll talk to you about how quickly these drugs act. After ingesting, the rapid onset the symptoms can come on and how quickly you can be incapacitated. And wht some of the symptoms are.
You're also going to hear from Barbara Ziv. She's a forensic psychologist. She's going to talk about what we call counterintuitive victim behaviors. In other words, the ways that victims of sexual assault might react that seem counterintuitive. How a victim might still communicate with the offender, and how that is common. That a victim might have consensual sex after, and how common that is. And how different it is from a stranger grabbing you, to someone you know, especially if it's someone you've been in a relationship with. And how difficult it is to label a rape a rape.
She'll describe the process a victim goes through to recognize that that has happened to them.
You're also going to hear from Claire Headley. She's a former member of Scientology and held quite a high office. She's going to testify to some of the Scientology practices and principles.
I know there was a lot of information presented, particularly this morning. This opening, this is just to give you an introduction to what you can expect the evidence to show. When these witnesses come up here and testify, I ask that you pay really close attention to what they say.
When these experts testify, pay really close attention to what they say about these drugs, about the common behavior of victims after a traumatic incident. And pay close attention to Claire Headley as she discusses with you some of those principles in the Church of Scientology.
The four women you see up here, you will hear what it took for these women to get into court today. And you're going to hear about what they went through when first reporting to the church. And the limitations that the church put upon them. And then having to report to law enforcement, and the investigations.
You're going to hear from these women about the long process it took for them to be here. And they're here to seek justice. And I'm confident, if you listen to this evidence carefully, all of it, I am confident that at the end when I have a chance to come before you again, I am confident that each of you will be able to render guilty verdicts on all 3 counts against this defendant, Danny Masterson. Guilty for the forcible rape of Jane Doe 1, guilty for the forcible rape of Jane Doe 2, guilty for the forcible rape of Jane Doe 3. I am confident that you will. I thank you for your time.
Judge Olmedo sends the jury out for a few minutes to allow the defense to get set up.
Defense attorney Philip Cohen: I promised you during jury selection that you were going to hear an opening from Mueller that was very horrible, and you promised me that you would not make up your minds before hearing everything. I'm counting on you to live up to your promise, please.
In an opening statement, a lawyer should say, in good faith, here's what the evidence is going to say. I had a presentation planned, but after hearing what Mr. Mueller said I... (Obj, sustained, reframe)
We're talking about three people in this case, JD1, JD2, and JD3 -- the reason I'm putting them in that order, those are the charges in the case.
Judge Olmedo: The court will admonish everyone not to refer to JD2 by her first name.
Cohen: You heard in Mr. Mueller's opening statement, that JD1 is going to testify that the gun was really not a big deal, and that's why she didn't mention it to anyone... (Obj, sustained.) She's going to tell you that this gun was a minute detail, that Mr. Masterson never used this gun in any way (Obj, sustained) She's going to tell you that he never used this gun, that he never threatened her.
Now JD1 has testified in a prior proceeding, under oath. Here's what she testified to under oath a few months ago. Puts up testimony on screen (Obj, sustained, remove exhibit). JD1 previously stated (Obj, sustained)
Judge Olmedo: Any prior statement that will come in as evidence, at this point stick to what the evidence will show.
Cohen: The evidence will show that JD1 previously told the LAPD that Masterson "pointed the gun at me." I also expect that JD1 is going to testify that when she woke up after the incident that Mr. Masterson was not there. That she had no interaction with her. I suspect she is going to say she made that last statement. (Obj, overruled). I also suspect that just a few months ago, for the first time in 20 years, JD1 has now remembered that after she woke up it was 3 pm, he was lying next to her, and that they spoke about what they should tell Luke Watson, the friend downstairs, about what had transpired between the two of them.
Mr. Mueller indicated the evidence would show that Det. Schlagel -- by the way you're going to hear that when she made this report in 2004, he was Officer Schlagel -- now 2023, he is supervising Detective Schlagel, and he will tell you the way he got to be a supervising detective is by being a really good cop and writing good reports and paying attention.
Mr. Mueller said Det Schlagel is going to say he doesn't remember anything from taking that report. I suspect the evidence will show that Det Schlagel, looking at the report in 2004, his recollection is refreshed, and he remembers the report and talking to JD1. In fact, one of the reasons he remembers in particular is that JD1 told him that she used to date a friend or colleague of his. And he will tell you that he absolutely remembers her coming in to talk to him.
I suspect that Det. Schlagel will tell you that if he had been told there was a gun involved, he would have put it in his report. And I suspect he will tell you that there wasn't any gun mentioned.
I also think the evidence will show just a few days after JD1 talks to Schlagel, she is then interviewed by Det Myers, who worked sex cases back then. She will tell you that at no time did JD1 tell her anything about a gun, nothing about waking up next to JD1. It was never said to Det Myers. And I suspect that JD1 is going to tell you they're wrong. I absolutely told them there was a gun.
I also suspect that Officer/Det Schlagel is going to be asked some questions, perhaps if he's sloppy, not a good report writer, or if he was tired. And I think Det Schlagel will tell you about all the training he has and the care he takes writing reports.
You also heard a little bit about JD2. She is the woman who is going to testify that she went over to Mr. Masterson's house after some text messages and they had an interaction. Mr. Mueller said that Mr. Masterson is just not JD2's type. What you're also going to hear that she and Mr. Masterson actually had sex a number of times that night, that she stayed at his house talking after sex until about 6 in the morning, about a variety of topics.
JD2 is going to tell you, despite not being her type, that when she left Danny's house that morning, she believed they were going to start dating. In fact she hoped that he was going to fall in love. She's going to tell you that she expected him to call her, and when three or four days went by, she called him. And here's what she is going to say she told him: I really like you and I thought you liked me. She will say he said thanks, he's busy. And then JD2 will tell you that she felt hurt, disappointed, many of the same things she told her mom and friends when she then spoke about it.
Mr. Mueller indicated that JD3, remember she was Masterson's live-in girlfriend for six years. One of the things Mr. Mueller expects to hear, is that JD3 told her husband about this November 2001 incident when she spoke to him in 2011.
Let me step back, we heard a lot about this Dec 2001 incident, at the restaurant. That is not the charge in this case. There is no drugging charge in this case. The charge with respect to JD3 is a November 2001 incident. And you're going to hear from JD3, and then from JD3's husband Cedric. And I suspect you will hear from Cedric that when she told him about the Dec 2001 restaurant incident, she never makes any mention to him about the rape that's charged in this case. None.
I really wanted to touch on those things while they're fresh on your minds. But I do want to talk a little bit about a couple of major topics that you're going to hear about. And I want to be clear about one thing. A woman can report a rape at any time. Two hours later, two days, two years (Obj, sustained)
What you're going to hear is that what they did report was consistent (Obj, sustained)
I want to talk a little bit about this case in the big picture. You can see it's People v. Danny Masterson (slide). Scientology is not a party. It's not one of the defendants. It's Masterson.
You're going to hear testimony from Det Reyes of the LAPD, who was the initial lead detective in this case, that she spoke to, in 2016, each of the three Jane Does, and implored them not to speak to each other about the case, their version of events, their testimony, or any detail.
Det Reyes told the Jane Does, if you do so, you will contaminate the case. And I will ask Det Reyes what she meant when she said "contaminate." She told the Jane Does it will be fatal to the case if you talk to each other about the details. And she spoke in particular about "cross-pollination."
Testimony will show that in late 2016, before they ever spoke to Reyes, they're talking to each other. JD3 was talking to JD1, JD1 to JD2. And JD2 is speaking to JD3. In fact, this is what JD2 is going to tell you, "we immediately started flooding each other with our stories."
You're going to admonish the Jane Does, do not speak to each other about your testimony. Reyes talks to JD1...
Judge Olmedo sends the jurors out with a tone of exasperation.
Judge: Please take the slide down. (Slide showed all three women.)
Judge: Mr. Cohen please do not use quotes, do not read in prior testimony. This is a new trial. The evidence comes in this trial. If Det Reyes testifies to the same thing, there is no need to quote her from the last trial. Mr. Mueller, your opening bordered on argument. She tells Mueller that she had given him some leeway, so she seems a little unhappy that Mueller is objecting so much ,but she's now dressing down Cohen about quoting prior testimony, and also for using the first names.
Cohen: These slides are the same used prior to the first trial.
Judge: If that were true they wouldn't have quotes from the first trial.
Cohen: Hold on...
Judge: These...and don't ever tell me to hold on... She goes on to emphasize that he not use quotes from the first trial.
Judge: It's a new trial, think of it as a doubleheader. What happened in that first game has little influence except for how you handicap what you do this time around.
Cohen asked how to refer to things then, and the Judge is telling him to talk about what the evidence in this trial will show, not to refer to past quotes.
Both Judge Olmedo and Cohen are a little heated, but not as much as we've seen them. And both are pretty calm afterwards.
Clearly, she's telling him he can refer to the things he wants to, but he has to do it as what the evidence in this trial will show, not what was said last time.
Jury coming back in.
Cohen is looking at large exhibit boards that he has prepared. I think he's concerned that they have quotes on them or something.
Cohen: Det Reyes is going to testify that she admonished the various Jane Does at numerous occasions, and she told them what was potentially going to happen if they kept speaking to each other.
I suspect that what you will hear is, despite that warning, JD1 not only keeps talking to those other two Jane Does, but also to other potential witnesses. JD2, after being admonished, she continues to talk to witness that she wants LAPD to speak with. JD2 for example or her mother will tell you that after JD2 spoke to LAPD, speak to my mom. But before LAPD can call her, JD2 has called her mom and asked her about the conversation in 2003. And the mother will say she has a hard time distinguishing what was said now and what was said then.
You will hear that JD2 told Det Reyes, I can talk to whoever I want.
Det Reyes also told JD3 not to talk to other witnesses. Despite that, JD3 continued to speak to other witnesses.
Now, with respect to the big picture version of events itself. I want to go through and talk about, in a lot more detail, each three of the Jane Does. Mr. Mueller went through each of the three, and I think I owe you the same thing.
JD1: She is the woman who first had sex with Masterson in Sep 2002 and then in April 2003. She had indicated that after the sex in April 2003, he flew to Florida, and while she's on the plane she starts to see bruises developing, and when she gets to Florida, her body is covered in bruises, her pain is 10 out of 10 on the pain scale, and that her abdomen is burning and feels horrible.
Mr. Mueller had showed you one picture from the trip. There's actually two pictures. One by her cousin Rachel. Another by someone else because Rachel is in the picture. And JD1 is going to tell you that at the time this picture was taken, she had bruises all over her body, and that she's at pain 10 out of 10. (Puts photos up on an easel.) You are going to hear in this case, there is no DNA, you're going to hear there is no blood, there are no percipient witnesses (meaning someone who actually viewed the assaults), there are no recordings, there is no video. You're going to hear that the only thing tangible that is close in time to these assaults is this picture. Taken within days of the April 25 allegation, and again at a time when JD1 has described herself, her body, her look, as being horrendous.
Mr. Mueller talked to you about, with JD1, a September 2002 sexual interaction with Mr. Masterson, not charged in this case. I want to talk about this incident. What JD1 is going to tell you that happened, and what I suspect the evidence is going to show happened.
She was at a bar, she had a drink. She didn't like Masterson, didn't want anything romantic with him. But then he convinced her to go to the house, they end up having sex.
After that incident, there's some tension among JD1 and her friends, because she had sex with him. That causes some rife and strife for JD1. That's Sept 2002, fast forward to April 2003, the charged incident.
What I suspect you'll hear is that she's at his house, sitting out front with a bunch of people, Masterson comes out and gives her a drink, and then violently pulls her, kicking and screaming, into his backyard. She doesn't really know what's going on, she ends up in the jacuzzi, she feels horrible, he carries her upstairs.
Here's what I also suspect you're going to hear. When JD1 reports to LAPD in 2004, she talks about this Sept 2002 incident, that was consensual. I think she'll tell you that it remained consensual until 2018, and then she decided it was not consensual.
I think she'll say during the Sept 2002 incident, she was not afraid of him, she never said no or tried to fend him off. She was laughing, she was giggling, and she wasn't out of it, she knew what was going on. Now, she's going to tell you that incident constituted rape.
Now, April 2004 (Actually 2003). JD1 is going indicate that she actually walked into Masterson's house, saw him in the kitchen. She pulled out some juice, asked him if he had any alcohol to mix it with. She sees him mix the drink and that's what she drinks. She's going to tell you about this gun, we've talked about the gun. She's going to tell you that it took 20 years for her to remember that when she woke up that afternoon, that he was lying in bed next to her, and that they spoke to each other about what to tell their friend, Luke.
JD1 is going to indicate that there are other pictures besides these two. You're not going to see any evidence of more photos.
She's going to say that while Masterson is carrying her upstairs, she calls her dad and leaves a message, begging for help. There is no message.
You will hear that there is no tangible evidence that corroborates that version.
After the April 2003, JD1 starts to get strife again, like after Sep 2002. So later, in December of 2003, she indicates that it was not consensual. Then in 2004, you heard about a non-disclosure agreement.
In that year, a lawyer sent a draft complaint to Masterson's lawyer asking for money so the draft complaint doesn't get filed. That draft complaint ends up leading to exactly what it was intended for, a settlement. The document Mr. Mueller is referring to is actually a settlement agreement/non-disclosure agreement. And with that settlement agreement, JD1 was paid $400,000.
You're also going to hear, and I suspect, that Mr. Mueller mentioned Claire Headley. I suspect that Ms. Headley is going to testify that one Scientologist is told they can't go to the police over another Scientologist. What does JD1 do? She not only sends a draft complain, she goes to the police, about another Scientologist.
You're going to hear that Ms. Headley has sued Scientology, that one of her areas of work is to basically rid the world of Scientology. And I think you're going ot hear about significant bias and agenda that Ms. Headley has. Remember, the name of the case is People v Masterson. This is not a case, or should not be a case, about Scientology.
You're going to hear that after JD1 goes to the LAPD, and talked to Schlagel and Myers. After that she receives a number of calls from the LAPD, and those calls go unreturned.
Jane Doe 2. JD2 is going to tell you that at no time did she ever think Masterson was going to hurt her or hit her. JD2 is going to tell you that she had been out with a group of people and Mr. Masterson, and she really liked the way he carried himself. He was very confident. He was on a big TV show at that time, and she was intrigued by him.
She's going to tell you that a couple of days after that, they had exchanged numbers and Masterson had texted her. Remember I said there's no tangible evidence? There's no text messages. She is going to tell you that these messages were so commanding and demanding, that she was almost compelled to go over to his house.
Not only are there no messages, she never shows any to her mother or friends.
She goes over to Masterson's house, and she's going to tell you that her goal in going to his house was hopefully to start dating him.
She has a few drinks before going to his house. And she will tell you she had been to his house on prior occasions. And her mom is going to tell us, that before JD2 goes to the house that night, she discussed it with her mom, and how excited she is to go out with Masterson.
She goes to his house, she is going to tell you, they go out to the jacuzzi, they go to the bedroom upstairs. She is going to tell you, maybe it was my idea to get in the shower. She will tell you she was OK with them kissing and she was OK with him fingering her. She will tell you that they had sex on the bed and they had sex a number of times afterwards in that house.
Let me segue for a minute. You are going to hear from a toxicologist, I don't know what she's going to testify to.
JD2 spoke to her mom, some to her friends. Did not ever say to one person, "I was drugged." Never. So, the toxicologist can come in and opine to whatever they want but there's no toxicology report, no urine, no DNA, and with JD2 there's not even a statement about it until in 2016 when the three Jane Does start talking to the LAPD.
Jane Doe 3. She was Masterson's girlfriend for five/six years. She was young when they met -- so was Masterson. They are maybe two years apart in age.
We heard a lot about this Dec 2001 incident at La Poubelle. By the way, a restaurant that they frequented a lot. They were regulars there. That incident, that's the one Mr. Mueller will demonstrate that JD3 was drugged and Masterson had anal sex with her -- that incident is not charged in this case.
Masterson and JD3 go to La Poubelle. JD3 is going to tell you that prior to going there, she had gone more than a few nights that she drank so much she did not remember what she did the next morning. I think you're going to hear about blackouts, that to the outside world you appear to be alert and cogent, but for whatever reason your memory chip is not recording.
JD3 is going to testify having a drink at La Poubelle and doesn't remember anything until the next day. But I think you will also hear that she told LAPD that she remembers going home and getting into bed before she lost her memory.
Nobody at La Poubelle has seen -- and keep in mind JD3 is six feet tall, six foot one, and Masterson is five nine -- nobody remembers seeing Masterson carrying JD3.
And then there are what, 60 steps at the house at what a 70 degree angle? There is no evidence of Masterson either doing so or being able to do so, carrying JD3 up those stairs.
JD3 then, you heard, Masterson says we had anal sex, JD3 said, not cool. And then JD3 then makes a number of statements starting a few months later. But then JD3 makes statements to other people. And it's important to remember the timeline, keeping in mind it is the November 2001 forcible rape that is the charge in this case.
The charge in this case is Nov 2001. The anal sex is Dec 2001. In 2002, she tells people about this anal sex (Obj, sustained).
In 2002, JD3 makes no mention to anyone about the November 2001 incident.
Fast forward to 2010, no mention of the November 2001 forcible rape. Conversation with Cedric, her husband. Here's what she says to him (Obj, sustained)
Here's what I believe they are going to testify to. She will say in 2010 she was still friends with Masterson, and tells Cedric this. He wasn't happy about that. As an aside, you heard JD3's experience with Scientology. You will hear that Cedric, at her suggestion, that he had taken courses at Scientology in 2008 or 2009.
Cedric gets upset that she's still friends with Masterson, she tells him about the Dec 2001 anal sex incident, she makes no mention to him about the rape charged in this case, period.
In November of 2016, JD3 talks to a friend you may hear from, about her and Masterson's relationship. She mentions again the Dec 2001 anal sex, no mention of the November rape.
In December 2016 she calls a rape hotline, she tells them about the Dec 2001 anal sex, and makes no mention of anything else, including the charge in this case.
A short time after JD3, gives an interview to the Austin PD. She goes to complain about the December 2001 anal sex, not the charge in this case. She gives an extensive interview and does not mention the November 2001 incident.
In June 2017, JD3 talks to Det Reyes. Six months later talks to Mueller, and you will hear that is the first time there's any mention of a November 2001 forcible rape, the charge in this case.
Judge Olmedo calls for afternoon break.
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“Don’t ever tell me to hold on” - I can’t wait to see how Holley interacts with Judge Olmedo, not having been at the last trial!
So let me get this straight: the Judge is going to require the attorneys to present the evidence to the new jurors as though they’ve never heard it before? What a novel idea. Oh wait, that’s what a retrial is...