JURY HAS THE CASE: Danny Masterson Trial, Day 21, 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.]

Late afternoon session.

Judge Olmedo asks for the jury to come in.

Now it's time for People's closing argument.

Mueller: You've all heard the evidence, you know what the case is about. I am just going to go over some things the defense brought up.

First of all, when we lawyers get up here and give an argument, it's about evidence, but it's not evidence. We are marshalling what has been said in testimony, and what we think it proves. But it's not evidence.

The evidence you have is from those witnesses who have raised their hands, sworn to tell the truth, and testified. And the documents. That's the evidence.

From the defense, I have heard a certain amount of speculation. But I'm going to focus on the evidence.

And there's a word I want you to keep in mind. I'm going to write it on the board. "Reasonable."

That word is reasonable. It's a very important word to keep in mind, especially when you get into deliberations.

You'll see that word in your jury instructions in various places. It's also in our burden of proof. Beyond a reasonable doubt. Why is it there?

Because if there's something you find unreasonable, you must reject it. And so that's something that I ask you always keep in mind, especially when you're going back to consider the evidence in the case.

Now, I took some notes and I apologize I'm going to have to refer a bit to some of the statements made by the defense counsel.

The first thing is consistency. Mr. Cohen talked about consistencies and inconsistencies. This is very important to him. And it is important. But when you see consistencies is when someone scripted something. And when someone tells you the same thing over and over again. Where you have the inconsistencies is a sexual assault victim, someone who has gone through a horrible trauma, they are being called in to law enforcement for the first time And they have to reach inside themselves and pull out that pain and trauma, and bring it out, and talk about it for the first time, multiple times and to multiple investigators. Something they might have kept inside for a long time, and now they have to talk about it. You might see some inconsistencies there, just by the way they have to talk about it. So keep that in mind.

Scientology. He's absolutely Scientology is not in this case. There are no charges against Scientology. But Scientology cannot be avoided in this case. It has played its role in the rules it has in place that has caused these victims to act in certain ways. Fear of going to law enforcement. Preparing or giving certain statements about what is rape and what is not a rape. Don't use that word. Don't report to anyone or you're going to be declared.

There are no charges against Scientology, but you can't avoid it. These victims have spent a certain amount of their life in it. Their friends have been Scientologists. They know people in it, and they follow its principles.

I'm not so sure where Mr. Cohen was going with some of his arguments. He was talking about some of the statements made by people like JD2, and things they said and didn't say or should have said. Things said by JD2's mom. I'm not sure where he's going.

Is he suggesting that these victims are lying? Is he suggesting that they have somehow gotten together and shared these stories and they're now going to get together and make a case against Mr. Masterson. Because if that's where he's going, there's no evidence of that. And there's absolutely no motive that would support that in this case. Why? why would these victims be doing anything like that?

You gotta ask yourself that question. Earlier he said, "blatantly fabricated," saying they lied. Why? Money, revenge, sadness -- he brought up those terms.

He talked about inconsistencies and he talked about bias.

What would be the reason that any of these victims would come up here and lie? And if they had gotten together to make this case against him, then while all the inconsistencies that defense is claiming. Wouldn't they have come up with a better set of facts to support their case?

Why would JD2 say she stayed until 6 am, that she called him up later, and that she hoped there would be a relationship. Why would she say these things if she was lying about the incident?

Why would JD3 only focus on the December 2001 incident, which again is not a charged incident because the law prevents us from filing it. If she was making up a case against him why wouldn't she just talk about the November incident? Because as I said that was normal for her. The December incident was not normal. The November incident was normal, that's why she didn't process it as a rape.

if they' re making it up, why aren't they more consistent/ why didn't JD3 talk about a weapon, or JD2 about strangulation? JD 3 didn't talk about a pillow. JD2 dragged across the floor by her hair? No. JD1 being slapped? No. And how about the bruises. How come only JD1 talked about bruises?

It's because this is not what was going on. this was not three victims who were now going to get together and make this case against Mr. Masterson. That's not what happened.

Mr. Cohen, on a number of occasions, said, is it possible or reasonable that this might be the case or that might be the case. Focus on the facts of of the case, the facts of the case and not on speculation. I know Mr. Cohen would like to pull you out in the weeds and take your focus away from the facts.

Look at the facts and consider the word reasonable. What is not reasonable, you must reject.

The Florida trip. The photos. They are a snapshot of a moment of a trip that was seven days long. Those two photos were a snapshot, and that's it. It's not depicting how Jane Doe 1 was for the remainder of that trip. It was a snapshot. So to suggest that she had this pain in her vagina, so she should be doubled over in pain. She has a smile on her face! Well, she's with her cousin and she's having her picture taken, so she smiled. That's it. That's it. Mr. Cohen has these big blowups. Does this look like this girl who has 10 out of 10 pain? This only represents that this is a moment in time and she smiled for a picture. And her cousin Rachel said her bruises were darker than they appeared in the picture. You can see the bruise on her hip. But you remember that Rachel said she kept to herself and kept covered up, except at night.

Mr. Cohen was talking about the elements of a forcible rape. He was saying that if the defendant believed the other person was consenting, he's not guilty. But actually and reasonably believed, there's that word again. There is no way that anyone is going to reasonably believe that JD3 was consensually having sex as she's telling him no, telling him get off of me, as she's moving her body to get out from under him. As she's pulling his hair and pulls his head to the side. That's not a reasonable belief that it was consensual.

Jane Doe 2. She's saying no and he flips her over and over, and jackhammers her until she vomits in her mouth. There's no reasonable belief that he has consent.

Jane Doe 1. She's vomited all over herself, and he tells her she's disgusting. And in the bed there's the pillow and choking. There's no reasonable belief that there was consent. No way.

Mr. Cohen brings up the three-page report that JD1 gave to Det Schlegel. She wrote this up in December 2003, quite a while before going to law enforcement. He says there's nothing in here about being dragged or pulled. But he didn't really show you the bottom of this page, where she said, "Danny repeated what he said, and he grabbed my arm, and kept pulling me" and she was going in the jacuzzi. That is in there. I encourage you to review this document when you're in deliberations.

The other thing is that's been admitted is the video segments, from Det Reyes, and our interview with Det Vargas of JD3. I invite you to look at those two. If there are any issues about any questions and answers, review it. It's there.

I told you I would keep this short, and I will. Because I know you're ready to go back and deliberate.

I will tell you, for each of these victims, they've had to come up here and testify to something that is very painful in their life. They've had multiple interviews with multiple investigators, Det Schlegel, Det Reyes, Det Vargas, and me. That's a lot of interviews. And each time they have to unearth the things that happened to them, and they get asked different questions from different investigators, and they did the best they could.

They've gone through a preliminary hearing, over several days. They've indicated, in terms of their fears of testifying. Harassment, stalking. And they've had to testify at trial.

It's not an easy thing to do. And again you're here in front of strangers, and you're being asked about the most intimate details in your life. Did he insert his penis? Where? And what did you do. It's not easy, but they got up here and they did it.

Ask yourself why they did that. Is it because they just blatantly fabricated? Why? There's motive here for them to be doing this. Other than to get justice. And that's what you're all here to do. You have the opportunity to go back there, to review the evidence, to consider what is reasonable and what is not, and to give these three women their justice.

Because based on the evidence that's what they deserve right now.

So i urge you to go back there, talk amongst yourself, judge what is reasonable, and you come back here and you find this defendant guilty. Because based on the evidence, that's what you need to do. Thank you.

Judge Olmedo thanks both attorneys. She asks the jury to go back into the jury room. And we will go back there to give you some more instructions just in how to get access to exhibits. And alternates, you need to go into the hallway and you will get further instructions.

If you want to review clips or transcripts, and then you will be brought back out to review them here.

So take your notebooks with you and go back there and we'll be there in a minute.

Jury leaves. Alternates go to the hallway.

With that said, the clerk swears the bailiff to take control of the jurors.

For the attorneys, I assume the clerk has your cell phones, and you are no more than 15 minutes away. And Mr. Masterson you have to remain in the courthouse. Not 15 minutes away, but somewhere in the courthouse.

Asks the attorneys to review the verdict forms.

Cohen: During our 402s I had requested the court take judicial notices of (code). It says, a criminal charge (including rape) this is for bringing a civil lawsuit after a conviction. I argued that earlier. And Mr. Mueller says there is no financial motive, but this law directly addresses this.

Number 2, Mr. Mueller mentioned with respect to JD3 the December 2001, that the law prevents us from filing. There has been no testimony on that. The statement having now been made, causes significant confusion, speculation by the jury, and opens up a whole Pandora's Box with statute of limitations, etc. I don't know why that statement was made. I made no mention that the Jane Does' testimony changed to fit in a statute instead of one that has run.

So with that said, I don't think I've made a motion for a mistrial in at least two days, so i am going to make a request. I think it's a significant error.

Mueller: With regard to the December incident, the defense has been heavily arguing how this incident that JD3 has focused on it over and over again. The jury would be inclined to question why that Dec incident had not been filed, that the people didn't believe her.

Olmedo: The problem is, it's not in evidence, so why did you argue it?

Mueller: Because it had been argued so much and there is a question why we didn't file it.

Olmedo: All right, as to the first, my ruling stands. With regards to Mr. Mueller's statement. That statute of limitations of that incident is not in evidence. With that said I have admonished that what the attorneys say is not evidence. I have given them an instruction about that. and I am happy to bring them back out and tell them that is not in evidence and it is stricken.

Cohen: I appreciate that, but I think it may cause more harm because it makes them wonder about it.

Olmedo: I just said I would sustain an objection, and I would do it even now if the jury wishes.

Cohen: No, thank you.

Olmedo: The court will be open. The family can wait here. The public can wait her if they wish. The court will be open its normal hours.

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