Morning session, Day 11 (Day 7 of testimony), Danny Masterson retrial
We're starting a little late this morning after Judge Charlaine Olmedo dealt with a multi-defendant case this morning.
Danny Masterson is wearing a tan suit with light blue tie today.
The Masterson group today includes wife Bijou Phillips, mother Carol Masterson, and siblings Christopher and Alanna Masterson.
SARTORIAL SPLENDOR ALERT: Defense attorney Philip Cohen is wearing a dark blue three-piece suit this morning with light pink shirt and slightly more lavender tie. For any other attorney it would be a daring choice, but for Cohen it seems a bit on the conservative side.
We have more late jurors this morning.
Judge Olmedo: At the close of court a couple of days ago, Ms. Holley asked to strike stats about false reporting said by Dr. Ziv, and to do it in front of the jury. But now she says Holley is asking her to hold off on that.
Jury 49, alternate seat 15. Sent a note, that the person's father was admitted to the hospital yesterday, and the judge is inclined to excuse him.
Judge Olmedo: Yesterday, Mr. Cohen asked for a mistrial based on something that happened in the hallway. Liz Martinez, from the communications office, has copies of some of the general rules that involve the media, and she's giving them out to the people in the audience. Because I think there might be questions about what is allowed. For anyone who has been following this case for a while, and they know I am a baseball fan. Let's say you're a diehard Dodgers fan and a big series with the Giants is coming. Let's say have you tickets, decked out in Dodgers gear, and at the stadium is equally split with Giants fans. Just because it's the Dodgers' stadium, you don't have the right to have the Giants fans kicked out. Now, at the snack bar, Dodgers and Giants fans in line, rough language used. You can't get that fan kicked out. Now, pitcher does badly while ex-wife behind the plate. The manager needs this information to determine what to do with the pitcher.
This is a public courtroom, open to the public. Anyone can attend as long as they do not disrupt or cause intimidation, and does not violate any general rules of the court. If anyone does that, they will be excluded from the courtroom.
She now asks that Leah Remini be brought in to give her an admonition about being a support person (for Jane Doe 1). But Leah is apparently not here, and so Jane Doe 1 goes to the witness stand.
Jury comes in.
Continuing with the cross-examination of Jane Doe 1.
Cohen: yesterday you had mentinoed that when you were testifying on Friday, theree was someone in the audience making you nervous.
Jane Doe 1: That's correct.
Vicki Podberesky, an attorney for Church of Scientology.
That's correct.
You saw her either move her head and twirl her hair and made a stare at you with her eyes.
It distracted me completely.
You said you wanted to say something to the judge but something was blocking her view?
Sort of. If I can explain. I looked up from a lower chair, the monitor was bloking, she wasn't looking at me. I looked at the audience, I didn't want to distract from the testimony. It was a whole process.
But the process began with, you wanted to let the judge know.
I did.
On Friday, before and after afternoon break you testified. Before the break, the process is you stay seated, the jury leavees the courtroom.
That's correct.
When the jury left, did you then let the judge know?
I did not.
Then an afternoon sessino, before that session did you let her know?
It was unnecessary at that time.
At any point that day did you let Mueller or Anson know?
I did, during the break. He looked for her, and she didn't come back after the break.
On Friday afternoon, you told Mr. Mueller or Ms. Anson about the observation of Podberesky?
I believe I did, because Mr. Mueller told me he looked for her and he didn't see her.
You told Mr. Mueller on Friday afternoon?
It could have been DA Anson. But my memory is they looekd for her and she did not return. It may have been to an advocate.
Is it possible that you didn't mention it to anybody until yesterday morning?
Absolutely not.
I understand you're suing for peace.
it was a lawsuit. I didn't say suing for peace.
You're also suring for a lot of money
That's not true. there are damags. I do't see a dollar amount in it.
I'm not saying there's a specific amount, but there are different theories of recovery.
I don't understand that.
You're suing for money.
For damages.
Damages is money, correct?
Yes.
And there are another different recovery theories the complaint asks for.
You say "theories," I don't understand.
(Judge Olmedo asks him to move on based on her previous ruling.) Do you believe that DAnny raped you in Septeber 2002?
I would say that it's rape.
(He says she has very specific memories about the things that led up to the incident.) You talked about the time you left the bar.
To the best of my ability.
And that's 21 years ago, but you have a good memory of that. You talked about where the car was parked.
Yes.
And all these detials you rememer.
Yes.
You talked about how you walked up the stairs.
Yes.
You talked about stoppoing on a place on the stairs.
Yes.
You talked about smoking a cigarette going up the stairs.
I don't believe that's correct. I wasn't smoking a cigareette going up the stairs.
You smoked on the landing.
That's right.
So these are really minute details you remember from 21 years ago.
Yes.
(He asks her about remembering she drank something that looked like water. She agrees.)
And you believe that he raped you. (She agrees.)
Was it your belief at that time that Danny was raping you?
No.
The next day, was it your belief?
It was not.
When you spoke to LAPD in 2004 to report the charged conduct, April 2003, was it your belief that Danny had raped you in Sept 2002? (Obj, sustained, rephrase). This night of Sept 2002, as I understand it was the first night you'd drank alcohol in about nine months.
Roughly.
And the reason was because you had a bad experience with alchohol nine months prior.
No.
Did you have an experience wehere you drank and threw up? (Obj, relevance, sustained) The night of Sept 2002, was your tolerance for alcohol lower, because you hadn't drunk in a number of hours.
That's my belief.
Your belief was that it was lower.
That's my belief.
Do you recall among the other details how much you had to drink?
As I've testified to, when I arrived he had a drink waiting for me. I drakn it down to the ice cubes, went to restroom, hadn't wanted another one but it was waiting for me. It tasted more bitter. I didn't finish that one.
Did you believe the first drink was a double?
(Repeats what she had testified that Danny said the second one was a triple.)
You finished the first drink, and you only had part of hte second drink.
Correct.
When you spoke to Det Reyes in January 2017, that you told her that you had one vodka and grapefruit juice, and then a second.
That would make sense I said something like that. I don't have a distinct memory of that.
Do you recall talking to Reyes about what your drinking pattern was that nigth?
I think what you said earlier was accurate.
Do you remember that you said you had one vodka and grapefruit, and then another?
(She's agreeing with him, but Cohen is asking if showing her the report would help refresh her memory, which is confusing her.)
You agree that in January 2017 you told Det Reyes "I had a vodka and grapefruit and then a second?"
Yes.
You also spoke in April 2017 with Mueller, and Det VArgas was present. Did you indicate to Mueller that you had a first drink and then you had a second drink, and you felt "Whoa."
That seems accurate. Yes.
Did you learn at some point, that the first was a double, and the second was a triple. (Asked and answered.) When you testified in Oct 2022, did you say you were told the first one was a double and the second was a triple?
Can you say when I was told that?
My question is, did you testify under oath last October that you were told the first was a double and the second triple.
I would have to clarify...
All I'm asking is if you teestified to that.
That makes sense I believe I did.
So you're talking about five shots of vodka, in a double and a triple, right? (She disagrees.)
When you say double, what do you mean double?
That's what your client said in a report.
You said when you left the bar you felt drunker and drunker, and when you reached his house you said you were very drunk.
Yes.
Were you "out of it" at that point?
No.
(Photo of stairs. She has a hard time with that photo. Shows a second photo, and she recognizes the stair she went up.) You recall walking up those stairs in Sept 2002.
More or less, yes.
And you were able to get up them.
Yes, with help.
In going into the house, you were asked on direct if you had any sense that the two of you were more than friends.
Is that the question?
You didn't have any sense that you were more than friends.
I didn't feel at all that we were more than friends.
Your position is that you would have had no warning or belief that he wanted to be with you sexually in any way.
I don't know if I would agree with that.
Did you have any cues?
When?
In the bar?
No.
No sense at all in the bar?
None.
When you interviewed with Det. Myers, June 8, 2004. What happened at the Lucky Bar was still fresh in your mind?
Roughly.
Did you tell her that Danny had been hitting on you repeatedly inthe Lucky Bar.
No.
You never made that statement to her?
Nope.
And that statement would not be true?
That would not be true.
You end up on Masterson's bed, there is vaginal intercourse that takes place.
Correct.
During that, you were laughing at times.
Correct.
You were saying, this is really stupid.
Correct.
At no point do you say no.
I don't recall saying no.
And you don't say stop.
I don't recall saying stop.
Other than laughing and saying this is stupid, you don't recall saying other things.
I recall other words.
But not no or stop.
Not no or stop.
How long was the vaginal intercourse until you had fallen asleep.
No real way of knowing.
Can you estimate, some minutes?
Sure.
You fell asleep with him insdie you?
I don't think so.
You fell asleep after the intercourse. And then you woke up on your stomach. And his penis was in your anus.
He was inserting it. I could feel it.
And you pulled away to keep his penis from getting inside you.
Yes.
When you spoke to Det. Myers in June 2004, did you tell her that while you were having vaginal sex, Danny had his penis touch your anus?
No.
Did you tell her that you were awake during the vaginal sex into the touching of the anus?
I don't even understand.
Did you tell Det Myers that you'd had vaginal sex, then you had fallen asleep and then you woke up to his penis touching your anus?
I just remember explainig to her the bits I could recall. She was't taking a report, she was asking a few questions.
She didn't take a report?
She was following up on something.
Schlagel took a report on June 6, and then a detective then interviews you on June 8.
That's my understanding.
And you don't believe that Det Myers did a thorough interview? (Obj, sustained) Do you remember talking to her?
Not really. I remember a phone call from a woman.
And that woman, Det Myers, asked you a number of questions.
I was reponding to them, yes.
She asked you what happened?
That's not how I recall it.
Do you recall telling Det Myers that you had fallen asleep and that Danny's penis had touched your anus?
I recall her asking me if htere had been contact. I remember having to, on the phone, to a woman, that yes there had been contact with my anus.
Did you tell Det Myers that the sex between you and Masterson in Sept 2002 was consensual.
I did.
Did you tell Officer Schlagel that it was consensual?
I did.
Would it be fair to character the sex as, you drank, had sex, and then felt awkward about it? (Obj, sustained). Would it be fair to say you drank?
This is true.
You had sex with him?
True.
And then you felt awkward about it?
Yes.
Is that what You told Det Myers?
I don't know. (She said she remembered telling a woman on the phone tha the had put his penis in her anus and that was why she was so awkward, but that it was it was her own fault for drinking. This was in 2004. I feel much different now.)
Did someone advise you, an attorney perhaps, to say no it won't refresh my recollection?
No.
Do you believe alcohol will do something to judgment. (Obj, sustained) Did you talk to Det Reyes about the impact of alcohol on you?
Can you be more specific?
Did you tell Det Reyes in January 2017, that "I guess alcohol does stuff to people."
Judge Olmedo calls for the morning break.
Judge Olmedo admonishes Cohen about being argumentative in his questions, and he responds, and it's not a heated exchange.
Cohen: There was testimony from JD1, to Reyes and Mueller, that she had one drink and a second drink. I think it's reasonable to say she had two drinks.
Judge Olmedo is saying she didn't the full second drink. Cohen agrees she didn't on direct, but that she earlier said to Reyes and Mueller that she had two drinks. Olmedo points to this being colloquial. You're trying to get her to agree to something that she won't agree to, and you're just extending the proceeding. Cohen then complains that the court stepped in and characterized, and he has a problem with it.
(By the way, no sign of STAND League's Eva Mahoney or Rev. Flip this morning.)
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It may be that Cohen has to do his best to impeach Jane Doe 1, for his client. But it seems he comes close to some line that makes it intimidation and deliberately being confusing so as to make her slip up. He may be within the law. But I think it is unethical. Sigh. He gets his gelt either way.
Not trying to read much into it but no mention of McKenzie Phillips in court lately.