JUDGE REBUKES 'INCREDIBLY CONDESCENDING' COHEN: Danny Masterson trial, Day 8

[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.]

Morning session, starting late at 10 am

Cohen wants to be heard.

Cohen: Asked JD1 a question about 2002, was his penis touching her anus accidental. Court sustained objection that it called for speculation. But I'm not asking what Masterson was thinking, but conduct that the witness experienced. Wants the court to consider that. 1. Did allow JD1 testimony that she thought she was going to die during choking. Caused her to speculate about what he was going to do, but court allowed it. I don't think it isn't different.

Olmedo: I think it's greatly different to say that JD1 thought she was going to die versus what she thought Masterson was going to do. One involves herself and one involves someone else. When its someone else it's sepculative.

Cohen: When JD1 was asked about the apology, she says she's referring to an apology months down the road. Let me read to you what Det Myers...

Olmedo: The way to do it then is call Det Myers and she can testify to the inconsistency.

Cohen: I agree but her conclusion that it was accidental comes right after the apology. The conclusion of the apology is crucial...

Olmedo: Ruling stands, not going to let you ask her if she thought it was accidental when he touched her there. I will allow you to ask about what her reaction was when she cried out in pain and contrast that to what she said to Det. Myers.

Olmedo: Got a note from a juror that she can't attend on Oct 31 because of her 4 year old, so the court will likely be dark that day.

She says that when we get to redirect and recross, do not ask the same thing you've asked before. She warns them she'll be quick with the asked-and-answered objections.

Continuation of cross-examination of Jane Doe 1

Cohen: After court yesterday or before this morning, have you spoken to anyone at DA, law enforcement about your testimony?

Nope.

Did you and Masterson have mutual friends in 2002-03-04 time period?

Yes.

And a mutual friend meaning someone you hang out with. Someone that you like.

I guess.

And were a number of these mutual friends that you shared, non-Scientologists?

A number of them? I didn't have any non-Scientologist friends that we shared. I believe I was acquainted with some non-Scientologist friends that he had.

Didn't you tell the LAPD in the 2004 that you had mutual friends?

Yes.

Did you tell the detective that not all of your mutual friends were Scientologists?

Yes, probably.

When you say probably...

Well, that's true, so I probably would have said that.

At some point, did you ask Det Reyes for a copy of your police report?

I feel like I did.

And did Reyes indicate to you that she wasn't necessarily comfortable with you having it?

The first thing she said was she coudln't find it?

Did you get a copy?

In June (2017) when I talked to Mueller. I told him I didn't have a copy.

Did you then release that report...

No.

Wait for the question. Did you release that report to anyone in the press or media?

No.

Did you cause it to be released?

No.

Did you ever see it in the media? (Obj, sustained)

Cohen: Did you take any steps to see if it had been released to the media (Obj, sustained)

Cohen: Following the interview with Mueller, indicated by Vargas that there are some inconsistencies between what you told Mueller and the 2004 reports.

[The court will allow this line solely for effect on listener, not for truth of matter.]

Cohen repeats the question.

No.

Is it your position that there was never any communication betweeenn you and Vargas wherein it was discussed that there were inconsistencies?

I initiated that with Vargas and Mueller.

You reach out to Mr Mueller?

Correct.

And you tell him that there are inconsistencies?

No, I said I looked at the 2004 report which was sent to me first time ever, and it was an "injury report" not a rape. I was very upset. They had the 2002 and 2003 events mixed together. The witness list out of order. I was very upset. Mueller said he would have Vargas call me about it.

So you were then asked to correct the 2004 report.

No.

Did you have a discussion with Det Vargas with July 13, 2017 wherein you told him that you had been asked to correct the 2004 report?

No.

Did you tell Det Vargas that Mr. Mueller had asked you to reach out to Det Vargas about corrections.

Yes.

Did you tell Det Vargas that Mr. Mueller wanted you to talk to Vargas and tell him what those corrections were?

Yes.

Now, the reason believe the 2004 report needed correcting is that you had a vivid memory as to what you told them then and it was different from teh report.

No.

Did you have a vivid memory of what you told them?

Yes.

So when you read the report you thought the LAPD had misstated what you had said? (Overbroad.)

Cohen: BAsed on your vivid recall, when you read the report it did not accurately represent what you said?

Olmedo: The desk report or the detective log?

Cohen: Did you review both the Schlegel and Myers reports? (Olmedo tells him how to ask it.)

Cohen: How many reports did you review?

One

Which one?

The one marked injury report. A male wrote it, I guess Schlegel. The problem is you have the reports and dates wrong. (That last part stricken.)

What did you tell the officer on June 6, 2004 with respect to Masterson's use or possesion of a gun.

I told him that I didn't know if he wanted to included because i didn't know if we could prove it because C of Scieno had spent a year telling her he didn't have any guns. Schlegel said something to me I didn't understand and I said, 'they lied.'

So let me break that down. You recall telling Schlegel that he had a gun.

Yes.

Did you tell him how Masterson had held that gun?

I don't recall that.

I thought you had a vivid recolleciont (Argumentative.)

How was he holding it?

(Emotional, describes how it was held)

Olmedo asks the jury to go out. Asks JD1 to leave the courtroom.

Cohen: I was going to ask that the witness be able to stand so the jury can see where Masterson was holding his gun. I don't believe the motion she's making that the jurors can see it.

Mueller: My objection was to allow the witness to finish her answer before cutting her off.

Cohen: If I did, it wasn't intentional.

Olmedo: (Very calm, measured.) My observation was that she interrupts him in answering with regard her emotional state. What I did want to put on the record that things seem to be a bit emtional or heated between witness and Mr. Cohen. I know there are some statements given that you may have an issue with, but getting into an argument with her over your knowledge of the case is not appropriate, and you did move on and I appreciate it. But there are asome ways you put things that are not only argumentaigve but also incredibly condescending and I don't know if that's beneficial for you. So I would ask that you bring down your tone as you speak with the witness.

Cohen: Thank you, your honor.

Asks to bring back in the witness.

Olmedo: It's really important that you only answer the question asked even if you think there's related information. OK?

JD1: Yes.

Olmedo: I know it's not how we talk in real life, but it's imperative that you wait to answer until after he's finished his question. And finally even if you feel some frustration, and that's normal, that you keep it to yourself and just answer the question. For example you indicated to Mr. Cohen that he doesn't have his dates clear. Just answer the question.

JD1: Yes, your honor.

Olmedo: I know it can get difficult and heated, and sometimes we just need a moment.

Brings jury back in.

Cohen: Based upon your recollection of the gun, if you would stand up and show us how Masterson held the gun.

She's standing, leaning over, with her right hand cocked at the elbow, pointing the gun down. Cohen comes over to point out where things are in relation to where the bed would be.

Judge Olmedo describes the position of her hands for the court reporter.

Cohen: And all of that is your vivid memory based upon how difficult to have this happen.

Correct.

So you saw the 2004, no mention of gun.

Correct.

Vargas asked for corrections. This was your opportunity to tell him what you told Shlegel.

Correct.

And that's what you did, you told him what you told Schlegel?

No. That's not how the conversation was.

Did you tell Det Vargas that Masterson had pointed the gun at you?

No.

Did you get a chance to review any writing that Det Vargas had made from his discussion with you about these corrections?

Which discussion?

We're talking about now you talking to Vargas for correcting Schlegel's report.

I'm asking which time.

Did you speak to Vargas more than one time about correcting Schlegel's report?

No.

Well that's the only time I'm asking about which I believe was [July 14 2017]

Incorrect.

So you didn't have a conversation with him on that date?

I did.

You had a telephone interview July 14 2017, to correct what was wrong with 2004 report?

No, it was the Reyes interview of 2017.

Did you speak to Vargas at any point about corrections to 2004 report?

Yes.

After you spoke to Vargas about corrections to 2004 report, did he give you any writing to review so you could see the corrections?

No.

Do you believe based on your interactions with him that he was listening to what you were saying? (Obj sustained)

Cohen: When you gave these corrections to Vargas, did you tell him that your correction to the 2004 report was that Masterson pointed the gun at you?

Can you be more specific in the beginning of the question?

You have a discussion with Vargas and the purpose of that discussion to correct the 2004 report?

Yes.

And you were part of that discussion and Vargas was part of it.

Yes.

Was that July 14, 2017.

Incorrect.

When was it.

I know for a fact it was in June.

Was there a discussion on July 14, 2017?

Yes.

During that discussion did you go over corrections to 2004 report?

No.

Whenever you spoke to Det Vargas about corrections to 2004 report, did you speak to him about corrections regarding the gun?

No.

You did not tell Vargas about the correction that needed to be made regarding the gun? Ever?

Yes.

You did tell him about a correction regarding the gun?

Yes.

When did that discussion take place.

July of 2017.

July 17, 2017?

Yes.

When you spoke to Vargas on July 17, 2017 it was for the purpose of making corrections to the Shlegel report, correct?

No.

Again, let's throw dates out the window. Have you ever told Vargas that Masterson had pointed the gun at you.

No.

Nothing further, your honor.

REDIRECT

Mueller: You testified that initially, you had believed that the 2002 sex was consensual, initially, but sometime in 2018 you believed it was non-consensual.

You said 2018? Correct.

Was there a difference for you in 2002 in the act of the vaginal penetration and the anal penetration.

Yes.

How so.

One I felt could be my fault and the other I was certain was not my fault.

In 2002 which did you feel could be your fault.

The vaginal.

And what were you certain was not your fault.

The anal.

And why did you make that distinction in your mind?

Because I had had vaginal sex, and I didn't have and was terrified of the other, and I believed our church was against it, and I was extra terrified of the consequences in our religion.

And when you say your religion, you're referring to Scientology (Asked and answered.)

Mueller: What changed in your mind that made you consider it non-consensual. (Objection. Overrurled, but overbroad.)

In 2018, did that belief of the vaginal sex being consensual change?

Yes.

What changed?

I had my first therapist and... (emtional)

Let me stop you there, I don't want to get into...

I just didn't have to carry...

Did the views in regard to your religion change?

Yes.

How so? (Objection>)

Sends out jury and witness for morning break.

Cohen: This trial is not about Scientology. Any reference to any practices should be very limited. Here is the conundrom that the govt puts me in. JD1 considered 2002 vaginal and anal to be consensual to 2018

Olmedo: I disagree with that characterization, but it's up to the jury to decide her teestimony.

Cohen: But now it's being used as another opportunity bring in religious doctrine into the case. The court ruled that where it was relevant it could be used on a limited basis. I don't see the significant or any relevance to the change of her mind in 2018. When she spoke to Mueller in 2017 she made no mention of 2002 anal being non-consensual. So now the argument that from 2017 to 2018, then followed by a civil lawsuit which talks about 2002 incident, the policies/practices have now suddenly worn off many years after she has left the church and no longer dealing with the church. Number one it just begs logic, number two it is being used as another opportunity make this about Scientology. Number three the other reason given by her is speaking to her therapist. I believe...

Olmedo: You cannot possible submit that someone says they went to a therapist, that breachses the paient tprivilege

Cohen: It's not that she was asked...

Olmedo: Bring me a case that says when someone spoke to a therapist that makes the conversation non-privileged.

She asks for the record to be read back of what JD1 said about the therapist.

Olmedo: Mentionoing that she went to a therapoist breaches the privilege? Mr. Mueller immediately stopped her. If you are going to make legal arguments to me, you know me well enough that I have researched this... You are going to have to bring me a case that even mentioning going to a therapist breaches and opens up the entire relationship.

Cohen: I didn't say the entire...

Olmedo: Yes you did...It's not admissible.

Mueller: The defense has opened this door, they're goig down this road that law enforcement and DA is directing JD1 what she should say and she's now sasying something different after talking to LAPD and DA. That's the insinuation through all this questioning....

Olmedo: Look, I understand why her view changed in 2018. What I want to know is why you would ask something to broad as what changed for you and how did it affect your faith. I told you to lead. I don't want to know all the reasons why she left her church.

Olmedo: I'm a little concerned about both attorneys' questions and trying to move forard. I told you I allreday understood that the chruch controlled her life, accordding to the prosecution and that changed when she left. But that doesn't mean were not going to get into all of those specifics about what changed for her. It makes common sense as to why she changed and I will give you a little leeway.

Mueller raises something from the prelim. Olmedo says she was ruling at prelim and now it's a jury, very different.

Mueller says JD1 said at the prelim that what changed for her was that Scientology was no longer telling her what to do or think. Can I lead her to that testimony?

Olmedo: I will direct you to lead with a question about her views changing when to leaving, but not what she believed or what they believed. I have given you some leeway, and that's what you can do. Mr. Cohen, you can make a record of your objection, but as a vexatious litigant, I don't need to keep hearing about your original objection. Scientology can come in. (Rereads her Oct 4 ruling.)

So to argue with me that Scientology was going to be kept out for the most part, I will read this ruling again every day. Go ahead and make your record.

Cohen: My only point is about change of mind in 2017 to 2018.

Olmedo: That you want to ask that?

Cohen: But I don't want to do that because...

Olmedo: Your strategy and tactics are your own business. Both sides, tighten it up.

(She steps out, we're in recess.)

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