Morning session, Day 12 (Day 8 of testimony), Danny Masterson retrial
We're starting a little later this morning again after Judge Olmedo took care of another criminal matter.
SARTORIAL SPLENDOR ALERT: Defense attorney Philip Cohen is disappointing us again today, with a dark grey three piece suit. However, he is sprucing it up a little with a shirt that appears to have some red and blue stripes, and a grey polka dot tie. It's a hint of the kind of creativity we are more used to.
We're on the record. Jurors are here, in the jury room.
Anson: Yesterday or the day before Mr. Cohen asked us to bring the originals of the photographs, Det Vargas had them. I didn't think we were going to be introducing the originals. When I came in this morning, talked to Mr. Mueller, we are going to introduce the originals.
Cohen: That's inaccurate, the discussion was they were not going to be bringing them in. These pictures were requested in a written demand before I even got involved in this case and were the subject of a motion. When I asked her about them, my impression was that they did not exist. And now in the middle of cross-examination they are being made available. It's inappropriate.
Judge: The photos, the originals, color copies have been used by both sides. So we're not talking photos that have never been seen. What you're talking about is the photo that was first provided to the police. You may have done a motion to compel, but the people and police would never turn over the original. So it would be available for inspection. But no court or prosecution would turn over an original to the defense. The defense gets copies. I know of now authority that you are entitled to take from the police the original.
(He starts to respond, and she criticizes him for his sarcastic tone.)
Cohen explains that he was not counsel when the motion to compel was filed. I'm not aware of any photos being made available for inspection.
Anson: When Mr. Cohen asked to se the originals, he asked if I had the originals, I said I don't. Two days ago. I reached out to cousin Rachel if she had the negatives. The other person I reached out to was Det Vargas. He said he didn't have them. Then he brought them to the court, and I provided them to the defense.
Judge: Now that you've seen the originals, what do you feel prejudiced by? What would you do differently?
Cohen: Why isn't the question for the govt, that now they are bringing in evidence for inspection during trial?
Judge says she has explained, and that she doesn't see a violation, so she's asking about prejudice. You have the color copies, so what is it about the originals that are prejudice?
Cohen: I'm not aware that the original was ever made available for inspection. Ms. Anson has been involved since day one, the court has not asked her, why were these not made available? Number two, I had previously, based on the first trial, that Rachel had negatives, I had asked for whatever photos Rachel had from those negatives. The photos we were provided did not include these two. There's no indication in any documentation I've seen that there were originals in existence and that they were ever made available for inspection. So really, I think the inquiry should be of the People.
Judge Olmedo finds that the People had complied by turning over copies. The subpoena for Rachel, these originals were not in her possession. The defense made the request two days ago for the originals, Anson acted on it right away and they were shown to the defense yesterday. I feel that the People have complied with everything. And the defense has not demonstrated prejudice with the color copies coming in instead of the originals. The Court will allow the People to use them.
Leah Remini comes in.
Judge Olmedo: Ms. Remini, before we bring the jurors out. I know you are here for a support person for JD1. I want to make sure that I repeat (what she said on the day of opening statements), that you understand as a support person that you may not prompt or sway the witness while you sit here. You understand that?
Leah: Yes.
Jury comes in. Jane Doe 1 goes to the stand.
Continuation of the cross-examination of Jane Doe 1
Cohen: When you got to Florida and you saw bruises everywhere on your body, one of the things you did was called them Hi-Band shorts?
Jane Doe 1: Higher waist.
The reason you wanted to wear higher-waist shorts, when you went out at night people would see the bruises.
It was in the daytime.
My understanding was you tried not to go out during the day.
Yes, but it was a family vacation, my dad's birthday, and so I wore them to try and hide things a little.
Your family had seen the bruising at this point though, and were comparing it to your grandfather?
They had seen some of them, that's why I didn't understand what was happening. The deep, deep bruising was coming through. When the blood is so deep that it takes time to rise, and I didn't have an explanation for them. the questions were getting, my father pulled me aside at one point, It was embarrassing. I didn't want the focus on my body.
So you took whatever steps you could to have that conversation?
To limit it. Where we were staying, in the bungalows. It's an outdoor courtyard that we shared. We would sometime go to a restaurant, Frenchy’s, and I wouldn’t wear shorts, I would wear a dress.
One concern about your injuries was your wrist.
Among many. I believe it was more my hand. There was a shiner on my wrist bone, but this one across the hand, the hand hurt so bad. (They describe the part of her hand for the record.)
As you indicated, the injury was to your left hand.
Correct
And so bad you had no strength in the hand.
Not exactly.
And you couldn't use your left hand.
I didn't say that.
OK. When you say you didn't say that, do you mean in this trial, or you never said it?
I just feel like you’re mischaracterizing what I said.
Do you recall previously being asked about what had happened to, and what you observed with at a prior proceeding in 2022?
Off hand, no.
Would it refresh your recollection if you looked at a transcript?
It could. (Brings her the transcript.)
In Oct 2022, did you testify, "my hand didn't have any strength in my left hand." My first question is, did you testify to those words.
I did, that was under oath, I just read that.
Did you say, I hurt the tendon?
I went on and I said it was a muscle or something.
Was it true?
Yes.
Did you say, I was right handed so I compensated?
Yes.
So two prominent things to you would be wearing high shorts and not being able to use your left hand, is that correct?
(Cohen puts up the photos of her in a bikini.) Are you wearing high-wasted shorts in these?
No.
In the bottom you have a drink in your hand.
It was iced coffee.
What hand is the drink in?
Right hand.
Picture on top, drink in your hand. What hand?
My left, because I was signing a tab. And I have to use my right hand. And that was a strawberry and coffee blended.
The strawberry and coffee blended, that indicates you have very detailed memories.
Some things, yes, but I can see it.
Is it your position you took these two photos with you when you went to report to LAPD on June 6, 2004.
Yes.
You've reviewed Ofc Schlagel's report.
The one you showed me yesterday?
In Ofc Schlagel's report there's a portion that indicates if any evidence has been provided, and any photos.
Correct.
And the report that no photos were provided by you. (Improper impeachment, ask another question.) When you spoke to Ofc Schlagel, did he ask you whether or not you wanted him to include any mention of a gun.
There was a conversation between us you could summarize like that.
Your summary is, he asked you, do you want to include a mention of a gun?
That's not what he said.
Now when you talked to him, he asked you for the names of people he should talk to.
I know that because of Julian's name.
You provided about six names.
That's correct, from what I see in the report.
And he asked for the names of people who saw something.
He got a lot wrong, you know that.
I don't know that at all.
In providing Schlagel with the names of witnesses, did you provide him the name of your cousin Rachel?
I did not provide my cousin's name because she was a child.
She was 17, right?
Yes.
Well she would have been 18 or 19 when you reported?
Correct.
And she was the first person who noticed bruising on you?
He didn't ask me that. I think it was the second rape report he had ever taken and he made it an injury report.
Do you remember what you asked your cousin Rachel?
I do. I remamber a very brief...
Did you tell her that you went "into" the jacuzzi?
No.
Did you tell her that after you went into it, everything went hazy and you did not wake up until the next day.
I assume that's something she said that you've heard because it's not what I would have said.
After you spoke with Schlagel and then the June 8, 2004 interview, as a result of those two interviews, you were asked or you offered additoinal materials or evidence.
By whom?
By either Schlagel or Myers.
I don't recall this, what you're saying.
Did you provide any items after interview them?
I know that I faxed, to the LAPD, something subsequently, I don't think it was a request by them.
Were a number of phone calls made in June 2004 asking you to come in for additional interviews with LAPD?
No.
Around the same time you went into LAPD, did you retain an attorney as part of a civil matter?
I did not have an attorney when I walked into LAPD in June 2004.
At or around the same time?
After the church's atty came to our home, my father had me meet an attorney.
Did you sign a retainer at that time?
The day I went to your client's attorney office, that was when there was an NDA I had to sign.
(Cohen enters a document) Have you seen this?
I've seen this.
Is that your signature?
Yes.
This is called a contingent fee arrangement.
Correct.
It indicates your name at the top.
Correct.
Name of a law firm.
Correct.
In West LA, on Olympic Blvd.
Yeah, I see that.
And this fee agreement indicates the attorney, Daniel Novek (sp) will represent you in the matter.
I don't see what matter is, there's nothing listed.
(That the attorney would get a 33.34 percentage.) Did the atty take a percentage of the $400,000.
I can't remember what he did, I saw that after and he had worked this out with Marty Singer when I was out of the room.
Marty Singer is an entertainment lawyer in LA.
I would describe him in other language.
Well, he was an entertainment attorney who represented Danny Masterson.
He represented to me that he represented him.
And in 2004, Danny Masterson was on the verge of re-signing That 70s Show (Obj, sustained) So you're all at Century City -- you, Daniel Novek, Mr. Masterson...
I was told he (Masterson) was absolutely not there, or I wouldn't have gone. Are you saying he was there?
And Mr. Singer.
I saw him.
You waited around Mr. Singer's office for a couple of hours.
That is not an accurate description. Can I explain?
Novek and Singer are away from you for a while (Obj, sustained) And at some point after this meeting, you receive a check for $400,000.
Incorrect.
Did you receive funds in payment of the $400,000.
So you're saying my attorney and Mr. Singe went somewhere... Mr. Singer put me in a room for two hours, alone, freezing air conditioning. They did not come back to check.
We heard reference to an NDA. Do you recall an NDA in this case?
I do.
What's the name of the document? (Brings it to her to refresh)
"Confidential settlement and non-disclosure agreement."
And this document came about after your attorney and Marty Singer had met.
After the church attorney came to my house, that document was prepared.
My question is, you, Mr. Novek, Marty Singer at his office.
I was there.
You indicated that under this settlement agreement, if you ever mentioned Danny's name in any way, you would have to return money.
That mischaracterizes what I said.
Have you ever returned any of that money?
Mr. Singer has threatened me, repeatedly, to the tune of millions of dollars.
Have you ever returned any money from that $400,000?
I have not been asked yet.
In 2017, you give an interview to Det Reyes. Did she say that she did not want you speaking to any other purported victims or any other witnesses? (Obj, sustained) Were you ever admonished never to speak to any other victims.
Yeah, by Julian.
By anyone else?
I had a non-enturbulation order. I've been screamed at, yelled at.
Were you admonished by Det Reyes not to speak to the other witnesses?
Before or after she had me working with another victim to make pretext calls to Marty Singer?
Let's say any time. Did she ever tell you not to talk to any witnesses?
She did, and then she revised that.
Did she ever tell you that if you talked to JD2 or JD3, that it would contaminate this case?
She said a DA had said it could contaminate, and that's why she wanted to talk my report.
So Det Reyes never said to you, if you keep talking to JD2 or JD3 it would contaminate the case.
She said if we talked about the details it would be a problem.
You talked to Det Vargas in April 2017. Did you give him at that point the name of cousin Rachel, Rachel D?
I don't recall, that was a two hour interview with several people in the room.
And after you had a discussion with Vargas and you may or may not have raised Rachel's name, did you then speak to her before she was interviewed by Vargas.
OK, I'm trying ton understand because I hadn't talked to my cousin in like 13 years.
(About photos and law enforcement.)
I think I talked about them to Reyes. Schlagel's interview wasn't recorded.
After you talked to Vargas, do you then speak to Rachel?
No, I think it was a couple of years later. I hadn't spoken to her for years. And then I reached out to her for the pictures because LAPD had lost my entire file. But I don't think we spoke until a family reunion three years later.
So you're saying that before you spoke to Vargas in April 2017, you had already spoken to Rachel about some pictures?
Between Reyes in Jan 2017 and April 2017 with Vargas, I spoke to her and asked if she had any pictures.
Did you tell Vargas you had already spoken to her?
I have no idea.
You mentioned that you take exception or disagree with a number of items in Schlagel's report.
Yes.
Did Det Vargas ask you to write down corrections to Schlagel's report?
No.
Did Vargas speak to you about changes you believed should be made.
He asked if I wanted to see it for the fist time. I had never seen it. In 2017, after I'd been interviewed by everyone here.
Did Vargas ask you for corrections.
We had a conversation on the phone. I was conveying to him that I was alarmed by what I said, including that he didn't characterize it as a rape.
Did you speak to Mueller about your position that there were mistakes in Schlagel's report?
Yes.
Did he then tell you to speak to Vargas about it but over the phone and not to write it down?
Judge Olmedo: Thank you counsel, you may sit down. People you may start your redirect.
REDIRECT
Mueller: The photos, they were takin in the evening?
Jane Doe 1: Correct.
Any other family members around?
No.
During what you described happening at defendant's house in Sept 2002, was there something that caused you to wake up and find yourself on your stomach?
He was putting his penis in my rear. And it was the most incredibly painful thing, even more than childbirth.
Is that what woke you up?
Yes.
When you initially believed what had happened in 2002, that that was consensual, was that for the vaginal penetration?
For the vaginal.
So initially, you did not believe that the anal penetration was consensual?
Never, ever, ever thought that was anything close to consensual.
Why didn't you tell your friend Paige Dorian that you had been raped?
I understood that to be my fault. I was still under the indoctrination that I needed to sort myself out, get myself straight with Scientology. I've never known anyone to report a rape in Scientology. It doesn't exist.
Did you put this addendum note on the top of the KR you gave to Schlagel?
I did not.
Why did you give this to him?
He asked for anything to prove that I'd said anything about it ever, before. I wanted to show that I didn't just walk in and say that.
You mentioned "8C"
That's correct.
What's that?
It's a term in Scientology when you control someone else's body completely.
While you were in the bedroom, on April 25, 2003. Do you know if the barrel of that gun was ever pointed directly to any part of your body?
I do not believe it was and I did not see it point to any part of my body.
Is there one particular moment that stands out for you that scared you the most?
Yes.
What is that?
I thought I was dying when he grabbed my throat (crying).
No further questions.
RECROSS
Cohen: When you went to LAPD, you brought whatever documents you thought would be helpful. And one was a statement written by Danny?
Yes. Or I faxed it later, but I did give it to LAPD.
No further break.
Judge Olmedo: We'll take a 20 minute recess.
Jane Doe 1 leaves with Leah Remini. The jury goes into the jury room.
Cohen: The court had previously precluded JD1's statement that his penis touching her anus was accidental. On redirect, she said it was rape. Rape requires some type of state of mind by Masterson. She has previously said it was accidental touching on Masterson's part. So I do think her state of mind regarding that touching is absolutely relevant. It was placed her state of mind whether it was rape into issue. And I think it is irreparable damage to defense case to not allow her full state of mind.
The other issue, is a request for a mistrial. I have previously been given time limits for an entire case in federal case. I have never before been limited in time in a cross-examination, quite frankly in any realm, but particularly in this realm. I know the court gave me 45 minutes, but I would say 80 percent of it was JD1 being non-responsive to many of the things I was asking, I don't think it was equitable. It can take five minutes that a light is green, but it can take 45 minutes to prove that it was red. It's the nature of cross-examination. It's very difficult. It's a life case, I think I am efficient with my questions. Every single question that I asked has a purpose and a use for me to make down the road, whether with another witness or closing. I think about this stuff a lot. This is chess. To have that ability limited, and particularly on a life case, i do not find that II can provide adequate representation, and I would request at least to recall her to ask about whether the penis touching her anus is accidental.
Judge: As it relates to the mistrial, a 2022 Cal Supreme Court case, the court has wide latitude to limit cross-examination. JD1 started her cross on Friday, she went all day Monday, all day Tuesday, yesterday. During that day the court gave repeated admonitions about the way cross was being handled. Despite the court's attempt to move things along, even after admonitions, the counsel went right back to what the court raised. The defense has had more time than the prosecution. The witness ahs been on the stand for nearly three days. (She compares it to a gang case she just handled.) She describes how Cohen's cross goes, the repetitive nature of it, she reads an example where Cohen used 15 questions to make one point, and she admonished him about it at the time, but he went on doing that. She also brings up how he had spent a lot of time asking JD1 about things she didn't remember, things he could ask the LAPD officers instead. Also, things that were marginally relevant, like the temperature of the jacuzzi water. She says the court tried to move things along, and let him know he had only 45 minutes. He still did repetitive questions this morning and she let him. She points out the 2004 agreement might have been more important than the temperature of the jacuzzi water. You can't keep her on the stand ten days because you have ten days of questions. She points out that at one time she had said he was asking over again something the DA had asked, she said "asked and answered", and his response was, yeah but not by me. She goes through an analogy to explain why that doesn't make sense. So I understand you're frustrated with the court's ruling, I understand you're frustrated by the progress of the cross-examination. But the court is not granting a mistrial. With that said we are in recess.
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I love Judge Olmedo
I felt like Cohen’s questions bordered on harassment. Good calls, Judge Olmedo.