LISA MARIE PRESLEY HAD PLANNED TO TAKE 5TH AMENDMENT: Danny Masterson Trial, Day 17

[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.

We're dealing with a very annoying fire alarm in the building this morning. Officer Contreras says the reason for the alarm hasn't been located, but the fire department is on its way to turn it off.

It's still early, but Bijou Phillips is here with her sister.

Judge Olmedo gets us on the record. No jury in the room. She apologizes for the fire alarm, but they aren't going to let it stop us.

She lists that we're going to go over Jane Doe 1's mother and Lisa Marie Presley.

Sartorial splendor alert: It's a disappointing day here folks. Defense attorney Philip Cohen has gone with a very conservative dark grey three-piece suit, and a shirt and tie of the palest blue. The only hint of his usual flair are some brightly colorful blue socks. Is he in mourning or something?

Cohen is discussing things with Mueller and Anson, we're off the record at the moment.

Judge Olmedo asks about the playing of redacted audio tapes for the jury. The attorneys are discussing it.

The alarm finally seems to have stopped.

Judge Olmedo, back on the record: First, as to Ms. Presley's proposed testimony. I know the defense had to spend some time last night on some discovery.

Goldstein: Moving to exclude this witness. She appears to be in relation to the uncharged Sept 2002 incident (of Jane Doe 1). In the interview the DA investigator tells Ms. Presley that the charged incident happened in April 2003, and she clearly doesn't have a memory of that. Ms. Presley being asked by the church to "smooth things over." We have heard extensive testimony about how witnesses reacted based on the church. This is too vague to be helpful and too broad to be probative. And she will testify about a conversation that JD1 did not testify to. And lastly, that Ms. Presley has been on the witness list since 2017, this interview was conducted last Friday. This is a 1054 violation. The only thing that has been provided in discovery before this interview was a 2014 direct message. "So much has happened and changed, and I'm so sorry if I've contributed to those trying to silence you." And she said she was in drug rehab during the time of this message. For all those reasons we are moving to exclude her entirely.

Olmedo: I will take up the issues regarding 402s. But I do want to hear it in regards to [JD1's mom]

Anson explains how Jane Doe 1's is a fresh complaint witness, and they are not seeking to introduce any documents.

Judge Olmedo asks the defense about that.

Cohen: That clarifies it. Whatever prior statements from JD1's mom will not involve hearsay from JD1 herself.

Olmedo: With regard to hearsay, are there going to be any references to utterances by Masterson himself.

Anson: JD1 mom offered a document to the church, and got a response from several people, including Mr. Masterson. But we are not going to ask about the contents of that response.

Olmedo wants the two sides to work together to make sure they know what the parameters are for JD1's mother's testimony.

Olmedo: Any additional witness 402s from the defense?

Goldstein: With regard to Rachel S. Two very inflammatory areas that should not be elicited. One is that she is a former victim of sexual assault herself. Also, that she helps deprogram former members of the church herself, and talks about cults and brainwashing. Just to make sure that there are no open ended questions that bring up those areas.

Olmedo: People, agreeable?

Anson: Correct.

Olmedo: And the taped interview of JD3? You were just going to get the info from the detectives first before seeing if we need the tape?

Cohen: Correct. With regard to Jane Doe 4, it would be limited to the first interaction with Masterson. Just to let the court know there is post-incident contact between them. I had an off-the-record conversation with Mr. Mueller. Both sides may ask about that post-incident contact. I just wanted the court to know.

Olmedo: The subsequent non-sexual contact was after the second incident? Work related? Friend related?

Cohen: Both.

Olmedo. OK, thank you for letting the court know that. People respond on Presley? There are two interviews that occurred, one last Friday?

Mueller: Yes. The investigator was clear about the Sept 2002 incident (Jane Doe 1) and then the April 2003 incident. I'm trying to get into specifics at this time. She did indicate that it was about three months after the 2003 incident that she had been contacted by Scientology because she was friends with JD1. That she was asked to make contact with JD1 and to "calm things down." In the sense that, JD1 was considering going to the authorities, and the church wanted it handled in-house. So she did make contact with JD1 and then had a conversation with her and at some point reported back to the church of Scientology. She provides some more details, she was then asked about, a DM, back in Dec 26, 2014. That was before JD1's case was reopened. And she admitted that this is a message that she had written and sent to JD1. And then she was asked about the contents of the message, where she's apologizing for contributing to quiet her at that time. So this entirely relevant, and it goes to conduct that she took to reach out to JD1 based on the instructions, and by the way that JD1 was looking to go to the authorities and Scientology wanted to handle it in house. So we think it's entirely relevant for the jury to hear.

Olmedo: As it relates to Ms. Presley's conversations with JD1, separate from the church, are there prior consistent or prior inconsistent statements in relation to the 2003 incident? Are there statements you are going to elicit?

Mueller: Yes.

Olmedo: As it relates to the 2014 DM, that you are going to introduce a printout of it?

Mueller: Yes.

Olmedo: Under what hearsay exception? (She goes through a list of the exceptions.) The DM itself doesn't seem to qualify. You are seeking to bring it in as it relates to Scientology's actions to JD1, which is more relevant to the civil case than this case. (She says she has allowed exceptions only to the JDs state of mind.)

Mueller: So then we would at minimum to use the message to refresh recollection or to impeach any response she makes.

Olmedo: The defense is indicating there is a 1054 discovery violation. I don't know of any case law that the People can't conduct additional interviews even in trial and turn them over. So I don't think there's a legal violation as long as they didn't sit on the interview, which it doesn't sound like they did.

Mueller: After Ms. Presley was served, she had retained a lawyer. We were contacted by a lawyer that she had received the subpoena and may be taking the Fifth Amendment. So inquiries were made why that may be. With this DM, we thought she might be concerned about evidence that she had dissuaded the witness. We told them we believed it was beyond the statute of limitations, they asked about immunity, and we agreed. And at that point they agreed to an interview on Friday morning. By Friday afternoon we had a copy of that interview and immediately gave it to the defense. It was the earliest we could get that after she expressed concerns.

Olmedo: JD1 has testified at length at the prelim and here. And the court has given her plenty of leeway to bring up situations. And at no point did she bring up Ms. Presley. So Ms. Presley's actions are only relevant in the criminal case in relation to JD1's decision to go to outside authorities. Her testimony may have more relevance to the civil case. Her conversation to JD1 may be relevant to prior consistent statements, in relation to Apr 2003. If there's some ambiguity to that, that might go to admissibility. (Describing that Presley might testify about talking to her about going to authorities, but as to specific Scientology actions that might be more relevant to the civil case.)

Goldstein: Starting with the 1054 issue, it's a due process issue. JD1 mentioned Presley in 2017. That gave them years and years to follow up. And whether she had an attorney or not seems irrelevant. And they chose to follow up in the middle of trial. It's not just 1054, it's much broader, to be able to provide a vigorous defense.

Olmedo: Has the defense tried to interview her since charges were filed in 2020?

Goldstein: No, because we weren't intending to call her.

Olmedo: The defense will often reach out to witnesses on the other side.

Goldstein also makes the point that the witness list was submitted 30 days before trial. Says it's a disadvantage to their client that the interview is coming in so late. We're asking for a jury instruction on this.

Olmedo: Did you want to weigh in on the court's of difference to relevance to criminal or civil?

Goldstein: The defense agrees with the court in several aspects. Masterson and the church are not on trial for what's in the civil case. None of those allegations are relevant here. it's another way to backdoor in that there's something the church did that is obstruction of justice that should be imputed to Mr. Masterson. As for Presley giving a prior consistent statement, it would be hearsay. When it is first raised in the interview, the investigator says let's talk about the Apr 25, 2003, and she responds 'I don't recall being told about the incident. It's very very vague.' Ultimately she does discuss something that's very vague. So, number one, it's hearsay, and two it's not a prior consistent statement. It's minimally probative.

Mueller: In terms of the timing of the defense getting this statement, there are many times that witnesses are called out without being previously interviewed. Here it wasn't until we recognized there was a Fifth Amendment concern from her that we decided to get a statement from her to find out what that concern was. So I do not see this as any kind of a discovery violation -- it was the first we learned about it and we immediately turned it over. As for the statements made by JD1, I disagree with Ms. Goldstein about prior consistency. There are things she says that are consistent with the April 2003 incident. When she was asked when she made contact, she said it was a few months after the April incident. She starts out by saying she didn't remember and things were cloudy, and I have some questions about her willingness to be forthcoming, but as the interview continues she opens up and starts saying things that are consistent with what JD1 said.

Olmedo: It seems to me whatever actions Scientology took, there would have to be attribution to which person that was, and then we'd have to go into who was that person. And any silencing of JD1 are much more relevant to the civil case. I've allowed the named victims to testify about their reasons for delaying, and JD1 never said she had a conversation with Presley and because of that decided not to go forward. So that conversation has not had any impact on her going forward. And the only reason I've allowed any of that in is state of mind, not for what's in the civil action.

Mueller: What about in relation to JD1's interactions with the church.

Olmedo: You have a letter the IJC. I don't think that's going to be contested. (Again she says the Presley statements are going to be tough to bring in because JD1 never mentioned her.) I do want to review the statement to see if it qualifies as a prior consistent or inconsistent statement. So we'll take a break. But for now I don't think there's been a discovery violation, and I don't think a jury instruction is appropriate. But putting that aside, if the People choose to call Ms. Presley, it will be for the limited purpose of prior consistent statements by JD1 in regards to both the Sept 2002 or Apr 2003 incidents. The court will allow her to testify that she was instructed to call JD1 by others, but she won't be allowed to identify by whom or go into that further. Nothing more as far as Scientology's actions.

Mueller: What about that she then reached back to...

Olmedo: What's the point of that? That may have great relevance to the civil action and to Scientology or Mr. Miscavige, but in this criminal case we are limiting it to the JDs state of mind, not Ms. Presley's state of mind, and again if JD1 had said she had a conversation with Presley and it affected her decision to go forward, that would be a different story. But she didn't even mention Ms. Presley.

Goldstein brings up the immunity granted to Ms. Presley. Olmedo says that won't be brought up.

They turn to the tapes briefly. Then to stipulations they are working on. Judge Olmedo says she will type up a page of admonitions and stipulations for the jury to be able to review.

We will resume with jurors at 1:30 pm.

Wow. Well, the jury in this case may not hear about it, but Deputy DA Mueller has revealed that Lisa Marie Presley was willing to testify that she was used by Scientology to try to obstruct justice, with the church asking her to dissuade Jane Doe 1 from going to law enforcement after the 2003 incident with Masterson.

And Presley was so concerned about her role in that, when she was subpoenaed to testify about it in this trial, her attorney said she planned to take the Fifth Amendment until the DA’s office granted her immunity.

Amazing! But unfortunately, that won’t be an issue in this case. Instead, it’s a huge development for the civil lawsuit, which is currently on hold.

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