Morning session, Day 10 (Day 6 of testimony), Danny Masterson retrial
One of our jurors is stuck in traffic, so we're starting about a half hour late.
SARTORIAL SPLENDOR ALERT: Some effort is being shown this morning by defense attorney Philip Cohen, who is bedecked in a grey windowpane suit, white shirt and purple tie. Definitely an improvement from last week's poor showing, if not his usual full flowering.
The Masterson section: Wife Bijou Phillips, mom Carol Masterson, brothers Christopher and Jordan, sister Alanna. Family friend Graham Bruwer.
The paralegal has asked the entire Masterson group to go out in the hallway.
Judge Olmedo takes the bench.
Judge Olmedo compliments Cohen on the colors of his current outfit.
Cohen: "Now that I actually get to speak I have to think about what to wear."
So apparently Cohen had tamped down his look last week as Shawn Holley was taking the fore? Didn't he get to cross-examine Cedric?
The Masterson group comes back in. Don't know what that was all about.
Mueller: We were advised over the weekend with regard to testimony of Jane Doe 1, in the morning, Vicki Podberesky was directly behind me (Judge: I did notice her) and JD1 said it was in her line of sight and Vicki was making eye contact. She had made some kind of response to a statement by JD1 and she rolled her eyes and flipped her hair. JD1 felt uncomfortable and had trouble focusing. She said there were one or two times when she needed to pause. She knows who she is.
Judge: What is it you're requesting?
Mueller: That we be able to ask her if at any time during her testimony there was someone who made her uncomfortable, so the jury understands that there times when she may have had a difficult time responding for that reason.
Cohen: Number one, I think this court has been very observant of the audience and not shy about raising an issue. The court did not make any issue of Vicki Podberesky. Second, none of this was brought up on Friday and it could have been, and to alleviate the issue. Number three, bringing now to the jury's attention that there's a lawyer for the Church present, given everything the jury has already heard, leads to inflammatory testimony, speculation, and makes Podberesky a potential witness and asking her if she's some kind of threat to JD1. If the government wants to revisit some parts of her testimony — I'm not even sure what they're alleging, that she was not credible or something. But to now start speculating and do a presentation about witness intimidation, I think the prejudicial potential outweighs any probative content.
Judge Olmedo: I did see Ms. Podberesky. She was in the second or third row. With that said, I did not see her during the examination because Mr. Mueller was blocking my view of her. I noticed there were times when she leaned around Mr. Mueller to see, and I thought it was unusual. That I did see. With that said, it's my understanding that she has something to do with the representation of the Scientology organization. So with that said, the court will allow the People to ask this witness or any witness if there was a person in the audience that made them uncomfortable. (She talks about how this is true in gang cases and others.) If Scientology doesn't want their presence known they shouldn't come. But it's an open court room and they can come if they want to.
Cohen asks to have a camera that points to the gallery to have its recording preserved. (Oh, we're on camera. They just don't show it to the public.)
Judge Olmedo says she doesn't know if the cameras are being recorded, but she will look into it. She explains that this is a high-security floor, and so cameras are giving a view to the Sheriff's department. But she rules that JD1 can be questioned about it.
Cohen: This is a public court room. I have no ability to tell anyone not to come to the courtroom. We now hear for the first time that a member of the California bar was trying to intimidate the testimony of Jane Doe 1. (He's criticizing Jane Doe 1 for making an allegation that no one else witnessed.)
Judge Olmedo. I'm going to stop you there. When I make a ruling, it's not necessarily subject to your further commentary. I understand the point you're making. They can bring it out and you can speak to it. It was a hair flip and not a gesture with a gun, I've heard about all kinds of gestures that make witnesses nervous. Was it meant to be intimidating? The fact that the witness says they saw something that makes them feel intimidating, that's why I say she can bring it up.
She now admonishes all of us, the Masterson group and the rest of the gallery, that she wants us to use poker faces. She acknowledges that people can do things like roll their eyes or make other faces without really realizing it.
"Poker faces, everyone out there, OK? Poker faces."
Judge Olmedo is also giving an admonition to everyone in the audience, you are to have no contact with witnesses, potential witnesses, lawyers in this case while it's going on.
Almost 10 am and we haven't started yet. The jury comes in.
Leah Remini has arrived as a support person for Jane Doe 1.
Continuing the direct examination of Jane Doe 1.
Mueller: How are you feeling this morning.
Jane Doe 1: Better.
I want to go back to your testimony on Friday. Was there somebody here in court that you recognized that made you uncomfortable?
Her name is Vicki Podberesky.
Where was she sitting?
(She points to the seat for the sketch artist, right behind that)
How do you know this person?
She represents the Church of Scientology and David Miscavige and every witness we needed to bring to court.
Did you happen to observe if she had made a gesture or facial gesture that made you uncomfortable?
I did. When you had a photo up here, I started to speak, and she did this -- (she flips her head and makes a scoffing sound)
(Mueller describes her motion.)
As if she was annoyed at my testimony.
Was there something besides the flipping the hair?
The way she looked at me. She put her head down and stared at me with a really dead glare.
(He describes it.)
She put her chin down and locked eyes.
Her presence and the gesture, did it have an effect on your testimony?
I lost where we were, I had a long pause, I looked over to you, your honor. And I was thinking if I should say something. And I remembered the people from the church coming to the house telling me that "You're not going to testify to anything more. This ends now." (She describes more intimidation from apparently a previous time.)
I want to go back to where we left off. You testified that you had gone to Masterson's house and he pushed you into the jacuzzi by the defendant. Can you estimate how long you were in the jacuzzi?
I would say five minutes, no more than 10.
How did you get out?
Luke helped me out, he guided me to the tiles. I couldn't support myself.
Do you recall how many people were still around?
I could only hear voices, I couldn't see anybody.
You were unable to see anything?
In the jacuzzi I could see some, but my vision was fading and on the ground I could see nothing.
(Photo of the Hollymont backyard.) After Luke assists you out and you're on the ground, what then?
He's holding me up with his arm around me. I'm telling him how I'm feeling, and he's telling me to open my eyes. I thought my eyes were open and I said I couldn't see. And he said open your eyes. And I got really scared because I thought my eyes were open.
Do you remember what you were wearing?
I remember my legs being bare and being cold.
Tell us everything that you recall feeling at that time.
OK. I couldn't hold myself up. I couldn't see, I could only hear. I smelled cigarette smoke. I was so nauseous, I was going to throw up everywhere. I've never felt that nauseous to this day. My head was spinning, it was almost an out of body experience. I could feel him holding me. And I was breathing the smallest breaths you could take. I couldn't get air.
How long from the time you had the drink to this moment? After you drank that portion of the drink?
No more than 30 minutes. 30, 35? Could have been 15 to 20.
Had you ever experienced a reaction like to that drinking any alcoholic beverage?
What were you hearing?
Voices talking, but I couldn't make out what they were saying. Except Luke. Then swishing sound, like shorts. Then Mr. Masterson's voice. He was talking to Luke about me. Danny: "She needs to throw up. I'm going to stick my fingers down her throat." I said no. And Luke said "Let me do it. It's better that I do it." Danny: "Somebody needs to make her throw up." Luke said, "No, Lisa will kill us. I need to do it."
By Lisa you mean.
Lisa Marie Presley.
What happened then.
Luke told Danny not to take me. Danny said "Oh my god she's my homie, I would never. Not going to lay a hand on her."
Did he pick you up?
I felt his hands under my knees, my back and under my rear. I started feeling the sensation of ascending the stairs, and my head really began spinning. Everything was shutting down.
Did you tell him to put you down?
I'm not certain.
Where did he take you?
Up the stairs to his bathroom.
(Photo of stairs in the house, she describes it as a landing coming from backyard.) What happened next?
He put me into the bathroom on the floor, by the toilet.
(Photo of bathroom. Photo of the toilet.)
He placed me in front of that toilet, held me up by my waist, and stick his fingers down my throat, and I vomited all over my hair. He let me slump down to the floor, cold tile on my face. He said "You're disgusting, you're covered with vomit." I was relieved I'd thrown up and I liked the cold tile on my cheek and I just wanted to stay there. I felt safe.
What do you remember next?
I either fell asleep or passed out. Minuets? I don't know.
What do you remember next?
The shower going on. He was saying, "You're disgusting, you're covered in vomit."
(Photo of the shower.) How did you get into that shower?
He dragged me, placed me inside it. You didn't get into the shower, really, it was a walk-in. He was holding me up trying to rinse me, my body.
Do you remember what he was wearing?
What about you?
I was naked.
Do you remember how you became naked?
No. I only became aware that I was naked when I looked down and he was rubbing my breasts with soap. I saw his hands and I saw his face, and I went like this (showing fist, trying to push him away with no strength). He was tryig to give me the soap, "You need to clean yourself, you're disgusting." The soap fell, and he said "pick it up, pick it up" (getting emotional as she describes holding her over so she can pick it up again, then later being laid down on the ground and she fell asleep again.) Some time passed, I don't know how long.
What do you remember next?
He's got a towel, he's picking me up, he's directing me to the door, to the bedroom, he put me on the bed, and I again went asleep or unconscious. (She remembers the weight of the bed hitting her back.)
(Photo of bedroom.) Tell us what happened when you were dropped on the bed.
I went asleep or went unconscious. I don't have a memory of that time.
What is the next memory you have?
His voice and him pentrating my vagina. Like this thrusting, and I can hear his voice, repeating himself. "You're not going to tell fucking Lisa. You're not going to tell Paige. You're not going to tell anyone. You like this, this feels good." He was so mad.
Did those names mean something to you?
He's still mad that I told Lisa about what he'd done in September. (Obj, sustained, strike. Mueller asks again.) We had shaken hands and buried the hatchet over that, but he was upset that Lisa had banned him, and he was still upset at me.
Over the Sept 2002 incident?
What do you recall next? I reached behind my had, there was a pillow. He was still thrusting and I pushed the pillow between us, and I shoved it toward his face. He had been talking in my eear, he was thrusting, and I pushed the pillow toward him.
(Mueller describes how she was demonstrating with her arms.)
What part of his body was penetrating you?
What part was he penetrating?
What happened with the pillow?
He pushed it back in my face, really hard. It covered my face and he pressed, so hard. And he held it there, and I went unconscious again. (Described breathing issue from earlier, then the pillow blocking her breating.)
I came to. I saw his face. I reached to see if there was something to grab. I tried to grab his neck. (Describes him responding by grabbing her neck. Mueller describes it for the record. She describes him holding her two hands with one hand of his own, and then grabbing her throat with the other, while continuing to thrust.)
What did you feel then?
Pressure from above. Squeezing on the sides. Everything was fading black. I could see his face and him moving, thrusting. That was the last thing I saw. I thought, that's it, that's the last face I'll see. (Her vision had started coming back in the shower.)
And then you passed out?
Yes, I don't know for how long.
I come to. I hear a voice at the door, a man's voice. I'm reaching to the left, I'm hitting something wooden. There's a man's voice yelling. His response to the voice, he reaches into this drawer (to the nightstand on the right side. She describes how her memory isn't fluid, but that moments she remembers.)
These memories may not be in chronoligical order?
I have never known if they were, I put them together based on whether my hair was wet (and cues based on what he said.) But the sequence may be off.
Those memories you do have, they're clear?
They're nightmares that I live with. They're so vivid. I wish other things were as vivid.
Do you konw what you were reaching for?
At one point he pulled a gun out of that drawer, when there was a voice at the door. He seemed agitated. He said what the fuck are you doing. I said I was trying to grab a lamp to hit him with, because i knew that I couldn't tell him what I was trying to do, to grab the gun.
Is that what you were trying to do?
Did he ever point the gun at you?
I guess it varies depending on your definition.
Did you ever see him point the barrel of the gun at you?
I never saw the barrel of the gun.
Did he strike you with the gun?
Did he ever use a threat about using the gun?
No, he said, "Shut the fuck up" as he's putting the gun back in the drawer. He never threatened me with the gun.
When you reached back after he dropped it in, what happened.
He slammed the drawer shut on my hand. He responded to the person at the door, he gets up, off me. I thought, just lay here, wait till he leaves, and get out of here. He said, don't fucking move. I fell asleep, I woke up, didn't see him and, I said to myself, go, go, go. I couldn't just sit up in bed. There was a delay. (She describes a disconnect between what she wanted to do and how her body reacted.) So I rolled off the bed to the floor. I started crawling around, there was a light coming from a closet door. It was really dark and I was disoriented. (She describes crawling into the closet.)
(Mueller points out the closet on the photo.) What then?
There were racks of clothes. I pushed them aside, crawled up against the wall, pulled my knees up.
Had you been in there before?
Pulled my knees up so they couldn’t see me behind the clothes. I heard voices saying my name. Heard his voice saying my name. Kept as still as I could, and passed out.
Why were you staying still?
So they coudn't find me.
You had concerns?
He had snapped. It wasn't my friend in that room.
What's your next memory?
I came to, my legs were really cold. There was a morning light. I assessed that I was in the closet. I didn't know who's closet I was in. I crawled out, saw the light in the window.
Were you still naked?
I know my legs were naked, they were so cold.
Did you see him in the room?
Not initially, but when I was crawling past the bed I saw him. He said, "What the fuck are you doing?" That's when I realized where I was.
Where was he?
He was on the right side of the bed, looking down at me. The next thing I remember was him picking me up to put me on the bed, "Go the fuck to sleep," and I passed out.
Some time passed and I wake up on the other side of the bed.
What did you see, hear?
I remember his voice, that's what opened my eyes. He was standing, and it was daytime.
Was he saying something?
"Hey, wake up. Luke's downstairs." I looked around, what am I doing, how did I get here. I have no idea how I got there.
Did you confront him?
I didn't. I didn't even know what to ask him. "What did you say to Luke?" I thought if I said that he would say what happened. But I didn't want him to know I memory. If I said that there would be no way to say how I got there.
And in that moment, you had no memory of what went on?
At that moment? None.
Was it still morning or afternoon?
It was in the afternoon.
What did you do then?
This is now hazy. During this time I know I got up, I got drssed, but I don't know what I put on. Everything is so hazy. I ended up downsairs, didn't see anybody, then saw front door open and Luke smoking.
Did you talk to him?
"Luke, I need to ask you something." "No, don't say anything, you're going straight to CC" (The Celebrity Centre.) Luke: "Danny's already been there, you're ordered to go straight to the president's office." JD1: "I just want to ask you one question." Luke: "No, Danny's already been there, I took him. I'm taking you straight there." I said I didn't have a way to get there. He said he was caling me a cab. He helped me call a taxi and gave me my phone. I got in the cab and told them not to go to that location but to where my car was, at Brie's house.
(Photos of Brie's house, with security gate.) What happened when you got there?
Aubrey Watson, Luke's sister, came out to the street with my bag, with all my stuff, and a piece of paper. Something written by Brie about the events of the evening.
When you got your car, where did you go?
Straight to my parents' house in Burbank. I was overdue by many hours, it was my dad's birthday. We had a flight out, a red-eye. I plugged my phone in, but it wasn't turning on as I drove. I should have been home by 7 or 7:30 in the morning. I just remember the panic, I need to let them know I'm OK. Took fifteen minutes, but it felt like forever.
(Photo of JD1 with her father.)
That's myself and my dad on Father's day maybe two or three years before this incident.
So you did not go to the President's Office.
I did not. That's where I would be punished. That's where they dish out the punishment for non-celebrities. But mostly it was my father, the flight. And also I knew it was his mother (Carol Masterson). (She says that she knew Carol would be behind the response to what had happened.)
Judge Olmedo calls for the morning recess.
Judge tells Cohen that after the questioning about Podberesky, Jane Doe 1 was accompanied by an attorney in her civil case, and he can ask her about that on cross-examination.
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So happy that Olmedo let her talk about Scientology’s presence in the courtroom
JD1's testimony had a significant impact on the case, as it helped to paint a vivid picture of the physical and emotional trauma she experienced at the hands of Danny. By describing her state of unconsciousness and at times her fearful awareness of the surroundings, JD1 was able to convey the severity of the situation she was in and the level of control Danny had over her.
Her palpable description of the physical environment and her tension to escape helped to further establish Danny's guilt and the need for justice to be served. JD1's testimony was powerful evidence in the case, highlighting the importance of listening to survivor voices and supporting them in seeking justice.