Morning session.
Sartorial splendor report: My neighbor is describing defense attorney's Philip Cohen's suit as almost a pale olive green, "something between beige and sage," she says. It's another very light colored suit paired with a brown vest, pink shirt, and lavender tie. A somewhat understated effort from Mr. Cohen this morning, but still rather distinctive as far as an attorney at a criminal case.
Judge Olmedo is handling another matter this morning.
Then she asks the two sides to talk to each other and the court reporter in order to figure out what will be included in the read-back.
Judge Olmedo brings up the taped interviews of Jane Doe 3 talking about the Nov 2001 incident. She is proposing asking the jury if they want to hear those as well, or to send them the tapes to listen to at their own pace. "What I'm not going to do is play taped interviews here in open court." She asks the two sides to talk it over. (We wondered about this. Not playing those tapes in court will definitely save us some time on the read-back.)
Now they're off the record.
Cohen: I have a hearing in (federal) district court tomorrow at 2.
Olmedo: We are so much more important here.
Cohen: I know, but the supremacy clause states otherwise.
(This was a fun exchange, by the way.)
Judge Olmedo says that deliberations will continue tomorrow either way.
But then she seems to indicate that another Judge, Judge Cohen, will be here on Friday and Monday if the jury continues into that time. Um, yikes!
Judge Olmedo is now dealing with another couple of matters, including the Martinez case. The gallery fills up, and with a considerable number of police officers. (Martinez is accused of killing a police officer in what he claimed was a case of mistaking the officer for an intruder.)
Deputy DA Anson, defense attorney Karen Goldstein, and the court reporter continue to huddle over transcripts, trying to come to an agreement about what to include in the read-back. Cohen is sitting nearby, looking at his phone. Danny is sitting next to Bijou in the family section. There's also mom Carol, brothers Christopher and Jordan, and sister Alanna. Also Bijou's sister Chynna Phillips Baldwin, Mackenzie Phillips, and family friends Chris Wadhams and Graham Bruwer. And a new family friend today that I do not recognize.
While she's handling another case, Judge Olmedo asks the Masterson attorneys to use the jury room in the next court to continue working on the read-back.
In the Martinez case, they have worked out a plea deal, and he pleads no contest to involuntary manslaughter and a gun charge. Sentencing will be in January. So it was interesting to see how a plea is handled.
We hear a buzzing from the jury room, suggesting that the jury is taking its first break of the day at 10:25 am. (The jury was told to keep working even as the transcript is being prepared for the read-back.)
Now it's after 10:45, and Judge Olmedo pokes her head in the court to say something to the clerk. She's sounding a big impatient.
The prosecutors come back in the courtroom. Then Cohen and Goldstein. The Mastersons arrive.
On the record.
Judge Olmedo: Counsel have been working on this since 8:30, it's now almost 11 o'clock, it should not be taking this long. I'm going to instruct the jury when they come back out that the read-back does not include the taped interviews. You can object to that if you want.
I understand there are sections that both sides disagree on, what are those?
Cohen describes some specific lines from testimony that are about the December 2001 incident. But Judge Olmedo says they wanted to hear about the November incident. And Cohen answers that "no reference" is a reference. She denies his request.
Cohen describes the next lines he wants to get in. Pertaining to the slap from the November incident. Judge Olmedo is reading it. Judge says it isn't responsive to the jury request.
Cohen also objects to the court mentioning the tapes, and she agrees, she won't bring up the taped interviews at all, unless the jury asks about them.
Judge Olmedo asks for the jury to come in, she says they will begin the read-back and go until noon and take a break.
The jury comes in. The clerk goes to get our remaining alternate, in the hallway. He comes in and we're on the record.
The court reporter begins the read-back. We are going to put our original notes from the testimony here (and thank you to Mick for locating them for us.)
Mueller: Was there another incident in November 2001?
JD3: I was sleeping and I woke up and he was having sex with me and I did not want to. And I told him so, I said no I don’t want to have sex. I said it many times. He wouldn’t stop. And so I was trying to push him off me. And he would put all his body weight down on me.
Mueller: Was this occurring at that residence on Hollymont?
JD3: Yes sir.
Mueller: And I assume you were in bed.
JD3: Yes sir.
Mueller: When you woke up, you said he was having sex with you. What part of your body was he penetrating?
JD3: My vagina.
Mueller: And what part of his body was penetrating you?
JD3: His penis.
Mueller: Was he naked?
JD3: Yes sir.
Mueller: How about you?
JD3: Yes sir.
Mueller: (Describes her making a pushing gesture.) What part of him were you pushing?
JD3: His chest.
Mueller: While you were telling him no?
JD3: Yes sir.
Mueller: How did he react?
JD3: I don’t recall him saying anything, but he was being rough.
Mueller: How so?
JD3: Sexually.
Mueller: And for you what does that mean, being rough sexually. What was he doing that was rough?
JD3: The way he was doing it, and it was painful, as a woman, my body was not prepared, so it… he was just being really rough.
Mueller: Where were you feeling the pain?
JD3: In my vagina.
Mueller: When you woke up, was his body moving on top of you?
JD3: He was on top, and I woke up and he was putting himself in… (emotional), I’m really sorry. No, I’m ok, I’m really sorry.
(Judge Olmedo asked if she needs a moment.)
Mueller: When you woke up his body weight was on you?
JD3: No, when I told him no, then he put his weight on me. He would do, that was a normally thing. He would put his entire body weight down on me, and I don’t know why.
Mueller: He was on top of you.
JD3: Yes sir.
Mueller: He was penetrating you at that time?
JD3: Yes sir.
Mueller: Where were his hands when you woke up and he was inside you?
JD3: I don’t remember, when I was pushing him off… (Obj, stricken)
Mueller: When you were pushing him off, what happened?
JD3: When he put his body weight down and I kept trying to push him off. I do know where his arms went. He put his forearm down on my arm, here.
Mueller: So you were describing you put your arms up, 90 degree at the elbow, and he put back both your arms?
JD3: Both, initially?
Mueller: He held them back?
JD3: Yes sir.
Mueller: Was he holding your arms back with both of his arms?
JD3: Yes, like down on me, I felt trapped.
Mueller: All the while he was penetrating you during this time?
JD3: Yes sir.
Mueller: Vagina?
JD3: Yes sir.
Mueller: At some point were you able to get either of your hands free?
JD3: My left hand. I don’t know how it happened I was able to get my left hand free.
Mueller: What did you do with it?
JD3: I did something that I knew that would maybe get him off me.
Mueller: When you got your left arm free, was your right arm still held down?
JD3: Yes sir.
Mueller: Up until that moment did he say anything to you?
JD3: I just remember… No, not that I recall.
Mueller: What about you, at that time, your arms pinned down, what do you recall yourself saying to him?
JD3: I was screaming at him to get off me. And I don’t want to have sex. Get off of me. I feel like I kept saying that over and over.
Mueller: What about the rest of your body. Were you moving your body to get him off?
JD3: I was trying to move my upper body to, I was trying to get out from under him or him off of me. And I was not successful at that point.
Mueller: As you were doing that, was there, did he do anything in terms of shifting his body weight then at that point?
JD3: All of it down on top of me.
Mueller: When you got that left arm free and right arm still being held down, what happened next.
JD3: I pulled his hair.
Mueller: Was there any particular reason why?
JD3: He has rules, and he would say this to me and everyone, no touch face rule, no touch hair rule. And he was very sensitive over his hair. I felt if I pulled his hair that would get him off me.
Mueller: As best you can say, how hard did you pull his hair?
JD3: I think I pulled it hard.
Mueller: Did you grab a fistful off hair or what?
JD3: I remember grabbing hair on the side of his head, and I think I pulled it hard because I remember seeing his head going (moves her head to the side. Mueller describes the gesture.)
Mueller: So how did he react once you pulled his hair?
JD3: He hit me.
Mueller: Where?
JD3: On my face.
Mueller: What part of his body did he use?
JD3: It was his right hand. But it wasn’t a punch. Like a loose, it wasn’t straight out, not a fist (shows her hand kind of loosely closed).
Mueller: He hit you on his left cheek?
JD3: Yes sir.
Mueller: And you said it was hard, right?
JD3: Yes sir.
Mueller: Meaning he hit you hard?
JD3: Yes sir.
Mueller: As you pulled his hair and as he hit you, was Mr. Masterson still penetrating your vagina?
JD3: Yes.
Mueller: So when he hit you on your left cheek, how did your react? What did you do at that point?
JD3: I felt shocked by it. I felt angry. And I started screaming?
Mueller: Words or just screaming.
JD3: Like, Get off me! And at that point he got up and I was laying on my side of the bed, the right side. He stood up over me and he spit on me and called me white trash. That’s all I remember him saying.
Mueller: I want to show you People’s 11 (photo of Masterson’s bedroom.)
JD3: That was our bedroom.
Mueller: The way you see it, is this how the bedroom looked back in 2001?
JD3: That big mirror was there, the guitar was not there.
Mueller: What about the bed itself.
JD3: It was a dark wood bed.
Mueller: Does that look like the same bed structurally?
JD3: It was like a Mission Style, dark wood frame. That headboard looks like it. The lamps are different.
Mueller: Just right now, the bed, does it look similar to what you remember?
JD3: Yes sir.
Mueller: And those two doors…
JD3: The closet.
Mueller: Doors on the left and right. Where do those go?
JD3: (She points at left) My closet. (Points at right closet) His closet.
Mueller: Was there a side of the bed he always slept on.
JD3: By his closet, and I slept by mine. (So, Masterson on the right looking from the foot of the bed toward the headboard.)
Mueller: After he got off you, what happened then?
JD3: He stood up, I was on my side of the bed. He stood up over me and spit on me and called me white trash. And then I believe he went downstairs to the guest bedroom.
Mueller: OK, and what did you do?
JD3: I stayed in bed.
Mueller: Did you see him the rest of that night?
JD3: I don’t remember.
Mueller: Did you then stay in bed to the next morning?
JD3: Yes, sir.
Mueller: Did you confront him that next morning about what happened?
JD3: I believe he was already gone. I didn’t see him the next morning. I believe he would have been at work.
[BREAK FOR THE DAY. Picked up Oct 25]
Mueller: Left off yesterday, you told us about an incident in November 2001. Where you had woken up and Mr. Masterson was on top of you, penetrating your vagina, correct?
JD3: Correct.
Mueller: And you told us about things that followed form there. I belive the next morning you didn’t see him.
JD3: Correct.
Mueller: You thought he had been at work. Do you recall when you next saw him?
JD3: I don’t remember.
Mueller: When you next saw him, did you confront him about what happened?
JD3: I don’t remember.
[LATER]
Mueller: Other than Miranda or Chris Scoggins, who is the first person that you told about the November 2001 incident?
JD3: My husband.
Mueller: When did you get married?
JD3: July 2009.
Mueller: At what point in the marriage did you tell him.
JD3: It would have been about a year and a half, between a year and two years in the marriage.
Mueller: So about 2011?
JD3: Could have been 2010.
Mueller: What did you tell him?
JD3: I told him about the unconscious, when I had no memory, and my bottom. (very quiet)
Mueller: Your what?
JD3: When he did it in my bottom. And then I started opening up more and told him about the November, the one where he hit me. I told him just generally what it was like.
[LATER]
Mueller: At some point did you report it to law enforcement. (Obj, sustained) At some point did you report either the Nov or Dec incidents to law enforcement?
JD3: Yes sir.
Mueller: Which one?
JD3: I went in to report the one that I wrote up, but I also discussed the November incident another time.
Mueller: Where did you go to report.
JD3: I went to the Austin Police Department.
[CROSS]
Cohen:You understand there is one charge of rape regarding you in this case.
JD3: Yes sir.
Cohen: And that charge comes from what month?
JD3: November 2001.
Cohen: I assume it’s your position you absolutely remember what happened that night. (Facts not in evidence, rephrase it.) There is an incident of November 2001, correct.
JD3: Correct.
Cohen: And you actually went through in detail what happened that evening.
JD3: You mean today?
Cohen: I mean testifying yesterday and today.
JD3: (Asks for repeat of question.)
Cohen: You spoke in detail where he was where you were.
JD3: Yes sir.
Cohen: What his hands were doing, what your hands were doing.
JD3: Yes sir.
Cohen: So you have a detailed memory as to what occurred in November 2001?
JD3: I would say that I remember what I remember. And I am being completely honest.
Cohen: The things you told this jury yesterday, the specific detail you went through, those are all things you remember, correct?
JD3: Correct.
Cohen: You spoke to Mueller in June 2017. And when you were truthful, correct. You were able to answer his questions. (Obj, sustained) You were able to understand what he was asking you?
JD3: I believe so.
Cohen: Is your memory today any better than it was then about the Nov 01 incident?
JD3: No, I don’t think so.
Cohen: What you told Mr. Mueller on June 1, 2017 about Nov 01, “I can’t gie you much about that night because I don’t fully remember.” (Obj, sustained) Did you tell him, I can’t tell you much about that night because I don’t fully remember? (asks for repeat.) When you spoke to Mr. Mueller, did you say to him with respect to Nov 2001, "I can’t give you much the night because I don’t fully remember." Did you say that to him?
JD3: I may have.
Cohen: Was that true?
JD3: I’ve always been truthful with Mr. Mueller.
Cohen: Were you being truthful when you said that?
JD3: I’ve always been truthful. I don’t remember every single thing about it.
Cohen: That’s not my question — (Olmedo: She answered your question. ask a nother one.) Did you tell Mr. Mueller that Masterson had “pushed my arm back.”
JD3: I may have.
Cohen: You may not have?
JD3: I don’t know.
Cohen: Would it help to refresh your recollection to look at a transcript of that interview?
JD3: I don’t know but I can look at it.
(Cohen is slow getting it out, has an exchange with Olmedo, and she calls the attorneys over for a sidebar.)
Cohen: Yesterday you testified about a number of details from the November 2001 incident.
JD3: Yes.
Cohen: I’m going to go through details, and did you mention that detail to Mr. Mueller in 2017?
JD3: Yes sir.
Cohen: So the Nov 2001 incident, you talked about waking up in bed with Mr. Masterson on top of you. You weren’t drunk. You were just asleep or falling asleep.
JD3: Correct.
Cohen: The Dec 2001 incident, you describe being passed out and woke up the morning and your butt hurt. Is that a fair description. (Obj.) Let’s do this, the Dec 2001 is the sodomy.
JD3: Yes sir.
Cohen: The Dec 2001 is the one you report to Austin PD as a sodomy, correct?.
JD3: Rape.
Cohen: I’m going to ask about the Nov 2001 incident.
JD3: Yes sir.
Cohen: Yesterday in talking about the Nov 2001, you indicated “Masterson had pushed my arm back.”
JD3: May I ask you a favor?
Cohen: Sure.
JD3: When you walk to this side of the courtroom, I don’t want to look over there (gesturing toward Masterson).
Cohen: You tell me where you want me to stand so I get your best answer. Is this good, at the podium?
JD3: That’s fine.
Cohen: When you described the Nov 01 incident yesterday, you described that Masterson had pushed your arm back.
JD3: Yes, sir.
Cohen: Did you ever tell that detail to Mr. Mueller when he interviewed you in June 2017?
JD3: I wasn’t sure how this whole thing worked. I was extremely nervous. I was just telling him events. Does that make sense?
Cohen: I’m going to ask the question again. When you spoke to Mr. Mueller in June of 2017 about the Nov 01 incident, did you tell him Masterson had “pushed my arm back.”
JD3: I’m not sure if he asked me, I was just answering his questions.
Cohen: I’m assuming he asked you, just tell me what happened?” (Obj, overruled) Is that correct?
JD3: I don’t think so.
Did Mr. Mueller give you the time you needed to tell your story?
JD3: Yes sir.
Cohen: Was the interview with him over the phone?
JD3: Yes sir.
Cohen: Was there just one interview with him?
JD3: Yes. Well, we’ve spoken. That was the interview.
Cohen: Have you had other interviews with Mr. Mueller?
JD3: I don’t know if they’re interviews. I've spoken with him.
Cohen: Have you spoken to the case about the facts of the case in other phone calls?
JD3: If he had any questions I believe he would call and ask me.
Cohen: Has he done that?
JD3: I think so.
Cohen: OK. Right now we’re going to focus on the June 1, 2017 phone interview and later on maybe we’ll talk about the otthers. In that interview, did Mr. Mueller give you the time and patience you need to to tell him everything he needed about the November 2001 incident?
JD3: I remember him just asking me questions and me answering.
Cohen: Was one of those questions, ma’am "can you tell me what happened in this incident?"
JD3: I don’t know.
Cohen: You told the jury that you had pushed your arm back at a 90 degree angle. Do remember that?
JD3: Both of my arms.
Cohen: Both of your arms, 90 degree angle?
JD3: I didn’t say that. That was Mr. Mueller said that and I said correct.
Cohen: Well, let me ask you, did he push your arms back at a 90 degree angle?
JD3: I’m really bad at math or angles. I’m not sure but my arms were like this (holds at 90 degree angle, Olmedo notes.) I’m not an educated woman.
Cohen: Did you tell Mr Mueller that he had pushed your arms back at a 90 degree angle?
JD3: I don’t know.
Cohen: Did you tell him that your arms were pushed back at all?
JD3: I don’t know.
Cohen: Has anyone provided you information that Jane Doe 1 said he pushed her arms back at a 90 degree angle?
JD3: No sir.
Cohen: You said he had put his elbow and forearm down on you.
JD3: Yes sir.
Cohen: In June 2017 did you tell Mr. Mueller that?
JD3: I don’t know.
Cohen: When you testified yesterday, you said you were able to get your left hand free.
JD3: Yes sir.
Cohen: Do you remember that happening?
JD3: Yes sir.
Cohen: When you spoke to Mr. Mueller in 2017 did you say anything about breaking your hands free?
JD3: Yes, I remember telling him that I pulled his hair.
Cohen: We’ll get to the hair-pulling. But did you tell Mr. Mueller that you got your hands free (Next question) You testified that you were screaming. Did you tell Mueller that?
JD3: I don’t know.
Cohen: You also spoke to Det Reyes in January.
JD3: I think I spoke to her first in December 2016.
Cohen: Yes, I stand corrected. I’m going to ask you the same questions. Were you truthful with Det Reyes?
JD3: 100 percent.
Cohen: Were you about to give her all your recollection of incident
JD3: I just remember being terrified.
Cohen: Terrified of Det Reyes?
JD3: No, of meeting with her. I didn’t know how that, this thing, how it works. And so I was answering her questions the best I could.
Cohen: Did she ask you, "ma'am, tell me what happened?
JD3: I don’t know, maybe.
Cohen: Did you Det Reyes that in Nov 2001 Masterson had pushed your arm back as part of a forcible rape?
JD3: I don’t think Det Reyes ever asked me.
Cohen: When you say Det Reyes never asked you, is it your position she never asked you, tell me what happened? (Obj, sustained, rephrase.) Did you tell Det Reyes everything you could recall about the incident?
JD3: I just remember answering her questions the best I could and being really scared.
Cohen: Did you ever tell her any time about a rape occurring in November 2001?
JD3: Yes sir.
Cohen: What did you tell her about a rape occurring in Nov 01 (Calls for narrative.) Did you tell her he pushed your arm back?
JD3: I don’t know.
Cohen: Did you tell her had pushed your arm into a 90 degree angle?
JD3: No, because I didn’t know that was a 90 degree angle.
Cohen: Did you tell her anything about what Masterson did with your arm?
JD3: I don’t know.
Cohen: Did you tell her that he put an elbow and arm down on you?
JD3: I don’t know.
Cohen: Did you tell her that he put his arm down on your arms?
JD3: I don’t know.
Cohen: Did you tell her that you got a hand free?
JD3: I really don’t remember her questions, I’m sorry.
Cohen: I’m more concerned with your answers than what she asked you.
JD3: I don’t remember what she asked so I can’t remember how I answer her question.
The court reporter now needs to consult the attorneys before continuing, and so Judge Olmedo excuses the jury for lunch.
One thing on the record. I think there was that brief portion that the judge had not wanted read (about the Dec 2001 incident) tht was read by the court reporter anyway. Oh well.
We'll be back at 1:15 pm.
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This survivor is so brave. Thanks for another beautiful sartorial splendor update. An interesting combination
JD3: He was on top, and I woke up and he was putting himself in… (emotional), I’m really sorry. No, I’m ok, I’m really sorry.(Judge Olmedo asked if she needs a moment.)
Does the court reporter read that Jane Doe 3 is emotional? And that the Judge asks her if she needs a moment?