JANE DOE 4 CAN TESTIFY: Danny Masterson Trial, Day 16, end of day report

[This report was produced live during a court hearing with a lot going on. There will be typos. Please don't email us about typos that you find.]

After lunch

We have a feeling this will be a pretty short session. Judge Olmedo seemed to indicate that she would give her ruling on Jane Doe 4, and then they would come back tomorrow morning at 10 am to deal with some admonitions regarding Lisa Marie Presley and Jane Doe 1's mother.

And there was Cohen's mysterious mention of a last-minute recorded interview with Lisa Marie that only took place in the last day or two or something. What was that about? We may not learn anything more about it until tomorrow morning.

The jury will return after the lunch break tomorrow, and we'll get back to testimony. We would guess that means finishing up Det Reyes and Det Vargas. And then that would leave Wednesday and part of Thursday for Jane Doe 1's mother, Rachel Smith, Lisa Marie Presley, and perhaps Jane Doe 4. So much to cram into these final few days!

As for the defense, we seemed to get mixed signals this morning about whether Cohen will call one or all three of his experts. We thought we heard him say that he was willing to call only one of them, but then later it sounded like he might call more.

If we had to guess, we suppose it might go Monday and Tuesday for defense witnesses. Wednesday for closing arguments. And then Thursday and Friday (the 18th) for deliberations? We know that Judge Olmedo (and everyone else) is hoping that this concludes by the 18th and doesn't go into Thanksgiving week.

Sartorial splendor update: We want to add a couple of details that we missed this morning as we were rushing a bit. It's a brown porkpie hat, navy coat, purple shirt and tie, checked tan vest (not a sweater vest), and tan slacks. Cohen maintains his standards on this drizzly day in Los Angeles, and we are happy that he has.

A quick note before we begin: If Judge Olmedo's ruling is like the ones she's issued before (like on Oct 4), there may be a lot of case law and we'll be struggling to keep up. So probably some paraphrasing will be coming up.

Judge Olmedo has returned.

She's carrying an armful of documents.

Judge Olmedo: Anyone want to say something?

Cohen: Over the break I went back through JD4's materials and transcript. Mr. Mueller has indicated that she was going to take a half a day on Wednesday.

Cohen says if JD4 comes in, he would not only an extensive cross, but he would need to recall JD2 and one of the detectives. And it would require calling the toxicologist. So as far as consumption of time, I wanted to make you aware of it. We had filed a 402 initially as to why she should be excluded, none of those issues were about what we were arguing, in other words, none of it presumed that certain areas we weren't going into. I believe Ms. Goldstein and I have stayed in the parameters and tiptoed a number of areas. I see it as a due process issue, as there were areas that were verboten, and as far as JD4 being admitted, there was no indication what those areas would be. This is obviously critical witness, and if the defense believed what it said might bring her in, we would have adjusted our defense. If we had been told to argue collusion would bring her in, we could have steered clear of that area. Credibility is everything for a defense attorney.

He's arguing that if there were doors that could be opened to allow in JD4, if the defense had known that, they could have steered clear of those.

Mueller: I don't want to argue what I previously argued, but if the defense is going to take an all three victims and with a broad stroke say they tried to collude, based on their interviews with law enforcement, then for the jury not to know about another victim who was out there with similar experience with Mr. Masterson who also was interviewed by LAPD and DA's office and has none of that, what the defense is claiming, I think the jury is entitled to hear this other victim to make that determination.

Cohen: Again, this issue of collusion is nothing new to this trial. At prelim, in opening statement. If that's the government's position, I feel sandbagged. (That it could have been ruled on earlier.) And the defense could have abided by that ruling.

(Just from the tone of their voices this is a BIG one for both Mueller and Cohen. Have rarely heard Cohen arguing this hard to Olmedo. He usually tries to have a more casual tone of voice.)

Cohen: To sit back and say nothing and then to say the entire defense opens the door, I say that's a due process issue...and now in the eleventh hour to say, a-ha, now we should be able to bring her in.

Mueller: The only other thing I would bring up is the toxicologist. I don't see how JD4's testimony would not be any more inflammatory than the others.

Olmedo: The court denied JD4's testimony in the People's case-in-chief on Oct 4, primarily under 352 (consumption of time). The People are saying the defense's cross-examination is raising differences from previous attorneys (and opens the door).

She cites several cases regarding consumption-of-time statute and sex offences.

In this case, two things have happened that the court did not anticipate. Rather than asserting that the women have a vendetta for Scientology, the defense is choosing to stay away from Sci largely. And is laser focused on inconsistencies in statements and on collusion as well as differences in changing statements, and that the witnesses have ignored admonitions to not talk to each other.

So yes, collusion has always been a part of the defense, but the defense is now saying the victims are almost exclusively focused on a monetary motive and is focused on collusion and changing statements.

But besides that change, what is almost important to the court, the defense was almost exclusively focused on consent. But after the motions in limine, the defense is also going to argue that some of the acts never occurred. That caught the court by surprise. (Cites a transcript on Oct 22, that the November 2001 event never took place.)

Both of these things have changed, and it has changed the court's assessment. The court now finds that Jane Doe 4's testimony is more probative than prejudicial.

(She goes through some similarities between Jane Doe 4's allegations and the testimony of the others.)

2. Not inflammatory. 3. Not too remote -- only a few weeks before Masterson started relationship with JD3. 4. And not too time-consuming. If Vargas does need to be called back, he still has to finish cross anyway. And JD2 if she does need to be called back can be done quickly.

The court finds that Jane Doe 4's testimony is allowed, and finds it more relevant to motive and intent.

The court has always kept open the possibility of revisiting the Oct 4 ruling.

Cohen: As I indicated earlier, the issue with respect to JD3, whether it didn't occur, the issue is this November date. From the prior statements, there's no mention of November ever. (Going to ask Vargas about it tomorrow.)

Cohen goes back through the November thing again, but he comes back around to his earlier argument, that they were never told what areas would allow in JD4, and they would have stayed away from them. He's just arguing again what he said earlier.

Again I come back to this due process issue. Had there been any indication that if you went into this or that, the defense would have complied.

I'm also troubled by the fact that after opening statement this issue was not raised, because opening statement brought up exactly what the court is talking about. And if that had been done

He moves for a mistrial. Expediency and efficiency should not be the goal of a trial over guilt. And this is now coming in as a result of what the defense has said, and its 25 percent, as a fourth victim. It's a big deal. I would argue for a new trial to begin over with Jane Doe 4.

Olmedo: The court finds all of those issues have been dealt with. The court denies the mistrial and does not find that there is a due process issue.

(Again she brings up the moment they said the November event didn't happen, and that shifted the ground.)

Cohen asks if he can bring up an evidentiary issue.

Cohen: I asked a question of JD1 if she had told the detective that she had peed in the street. The court sustained an objection because I was getting into prurient issues or was trying to embarrass her. The reason I brought in the question was then to make the argument that she was drinking before going to Masterson's house. The court sustained it. Given now what I suspect is going to be JD4's testimony, with the government never saying the word "drugged" or "drugging," but the testimony that they all felt different after drinking. What I am asking the court is to revisit the ruling on whether that testimony can be elicited. One or two questions of Vargas.

Mueller: It's entirely irrelevant and improper to whether or not she had peed in the street has nothing to do if she drank alcohol or drank water. We stand on that.

Olmedo: There's certainly plethora of case law that alcohol use of sex assault victims is not admissible. And the reason I sustained the objection and will continue objection is that drinking of alcohol is not required from peeing in the street. So in light of case law of what can be admitted, that is the court sustained.

Cohen: Just to be clear, it's not to show that she was drunk. The government asked if she had been drinking any alcohol. And it's not dispositive, but can it lead to a reasonable inference. But she told Det Vargas that she peed in the street, it goes to credibility.

Olmedo: But did she tell Det Vargas that she drank alcohol and then peed in the street?

Cohen: No, the opposite. And if she peed in the street does it necessarily mean she drank alcohol? No. But can it lead to an inference that she drank alcohol and therefore was not truthful to the jury and to Det Vargas? Is it the only inference? No. Is it dispositive? It's a reasonable inference. Again, I did not raise the issue, the government raised it. (that she didn't drink) And I think it handcuffs us, the inference that she must have been drugged.

Olmedo: The People are not going to get up there and argue that any of these victims were drugged. And I want to know about JD4, according to People's proffer, her testimony was that she was voluntarily intoxicated (in first incident.)

Her ruling about the peeing incident remains. As to JD4, there are two separate incidents, and she will take it under submission that they need to be considered separately. Let me do a little more research. Court will definitely allow the first incident, and will think some more about the second incident at her house.

[Sidebar]

Judge Olmedo: After talking both sides, the court is allowing JD4 of allowing first incident at Masterson's house but not the second, at her house. It is factually more similar.

Uncontested in the first incident that she ingested what she did and is not alleging any potential foreign substance. That's the order. Recess until tomorrow morning.

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