MISTRIAL AVERTED AGAIN: Danny Masterson Trial, Day 6, Morning break 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. We are reporting live from an ongoing trial and we do not have time to make such corrections.]

Day 6 (Day 2 of testimony)

Morning session

(Please note. Sometimes we are simply typing "Mueller" or "Masterson," when the person said "Mr. Mueller" or "Mr. Masterson." Please don't assume that they were being rude and not using those honorifics.)

So far this morning only Bijou and Chris Wadhams are here for the family, and Lois Heaney, the jury consultant.

Jurors not present yet. Judge Olmedo wanted to give Cohen an opportunity to be heard.

Cohen: I would like to supplement the issue I brought up yesterday. The judge has made clear that this case will not be about Scientology. In Mr. Mueller's opening he brought up two things the case is about. First, three different sexual assault victims. Second, also certain policies that the victims were operating under. I find it problematic for a number of reason.

The court made it clear that this case was not going to be about Scientology and not about policies. In fact the court has limited the policies that might come in. The jury is not tasked to determine if those policies are right or wrong or inaccurate. But Mueller tells them that the case is about two things. And I don't think it takes a great leap that the jury then takes that in, we have to take in facts and determine two things. So I find it very problematic and it is contrary to the order of the court. That opening also mentions that we then we then heard from JD1 yesterday, when Mueller says, based on certain acts that other members of the detach from you, and you become an enemy of the church. That's a pretty strong word and I don't remember hearing that word in this case before. Then lo and behold, we hear the unexpected testimony of JD1, if you're a Scientologist and in contact with friends and non-Scientologists or wogs, you are fraternizing with the enemy. So this concept of enemy comes up in opening after the jury is informed that one of the things the case is about is the policies of Scientology. And what JD1 says is evidence, the concept comes full circle with her indicating no fraternizing with the enemy. I take the court's point that other religions also have something like that, but "enemy" is a strong word.

I think I made clear in my opening, delayed opening is not a part of my case. Whatever was done in prelim was done in prelim. That wasn't me. It seems to me that late reporting is a significant part of this case, then the balancing of how much we need about the delay, when it's not a part of the case?

I made a motion yesterday for a mistrial, I think it puts the defense in a difficult position. You told me that I knew Scientology was coming up, yes I did, but I thought it was according to the court's rules. But now it has come up in a different way than the court anticipated.

If the court was to deny the motion for a mistrial, I have a request...I take Mr. Mueller's word that he admonished his witnesses about Scientology.

I don't think the general admonition is sufficient given what I've laid out. I would like to lodge with the court a number of articles that came out yesterday afternoon, evening. The people tasked with saying what happened yesterday is the media, and I know the jury aren't supposed to look at. For many of these articles, the take away was that the case is all about Scientology.

Judge Olmedo: Perhaps that's because both lawyers seem to be talking about nothing but Scientology.

Cohen brings up again his motion to take out Scientology entirely.

Olmedo: We're not revisiting that again.

Cohen says it was necessary for him to try it. He wants to lodge the articles with the court.

Olmedo: You can lodge whatever you want. I don't know what import the media is supposed to have on the court. But if you want to lodge it you can.

Mueller's turn: People are entitled to bring in evidence to show why these victims had taken some time to law enforcement (whether or not it's part of the defense's case, because the jury will be thinking about it.)

Mueller is saying the Scientology content is directly related to why these women did what they did and didn't report early.

As for the concept of "enemy," Jane Doe 1 talked about that in the prelim (Mueller cites the page and line of transcript.)

She said being declared she would be "labeled suppressive and an enemy."

She talked about her parents disowning her. "Everyone who I considered a friend would consider me an enemy."

It goes toward the consequences and why she decided to do certain things and not other things.

So this is not a surprise, and the use of the word "enemy" has come up at least twice with JD1. Mr. Cohen should not be surprised about this. And she's not making a general, sweeping claim. She's saying this is what what happen to her if she did certain things.

Cohen's turn: He wants to submit his proposed admonition. It is taken to the judge.

Cohen: What JD1 testified to yesterday was more than what would happen to her.

Both sides submit.

Judge Olmedo: I want to remind both sides what the court's ruling was, so we don't have any more questions about that in relation to Scientology. On Oct 4 ruled, the court will allow testimony about Scientology in the following topics. To explain the victims delaying reporting. To the victims' belief of what other Scientologistst believe about reporting. Also about fears about harassment and retaliation.

She refers to the 2004 settlement and Jane Doe 1. But not to refer to the civil lawsuit filed in 2019 (Judge Olmedo always says 2017 here, but it was definitely 2019.)

JD1's letter to IJC is allowed.

Regarding any other Scientology-related document, they need to be ruled on before being given to the jury.

Those are my specific rulings. The use of the word enemy on its own is not prejudicial. The concept that any religion or other group is insulated against outside groups, is not unique to Scientology.

The renewed motion for a mistrial is denied.

I do not find that the government has violated the court's ruling. What concerns the court is that there's a point when Scientology evidence will become cumulative and unduly time-consuming. I'm allowing it, but it doesn't give the govt the opportunity to use it explain any witness's state of mind.

If you're bringing in Scientology, make sure it's related to the charges. It may be relevant that Scientology has control over everything this woman does, but this is a rape case and Mr. Mueller you need to clarify in your questions that these are her beliefs only. It is irrelevant what Scientology's policies are. What matters is her state of mind. You need to be more specific and precise in your questioning. Otherwise this becomes cumulative and I will rule on that.

She's bringing up the JD3 brought up wog and wog law in the prelim, and she's not going to limit that, if a witness has disdain for the criminal justice hearing.

I did review the prelim transcript, and JD1 did use those words.

She's saying that there's a distinction between evidence about state of mind and evidence about the church. She's saying that she will make sure she will admonish this repeatedly.

So that's where we are for that.

Cohen: Can I give a request? Can I ask that the admonition be given at the beginning of each session?

Judge: That would give it too much prominence. She will give it at the beginning of each new witness.

Cohen: And if the court could just remind the jury not to look at any press.

Judge: I will remind them of that every time.

Mueller asks about a specific part of Judge Olmedo's Oct 4 ruling. He asks if JD1 can testify that she was paid $400,000 from Masterson in the 2004 agreement.

Judge Olmedo says that is relevant for both sides and admissible.

Mueller brings up the "Lilly" rumor, and Judge Olmedo reminds him that the Lilly thing will not come in at all. There's no evidence of it.

We're in recess. Jury still not here.

While all that was going in, more Masterson family members came in.

Danny's father Peter Masterson is now sitting next to Bijou in the front row. Alanna arrived, and Christopher.

After a short break, we're waiting for Jane Doe 1 to come in.

So, the upshot this morning was that Cohen was objecting to "wog" and "enemy," but both Mueller and Olmedo pointed out they were both used by the victims in the prelim.

And Mueller just needs to be more careful.

Jane Doe 1 is here. Before the jury arrives, Judge Olmedo tells her that there's been discussion about Scientology. And that it's important that she listen carefully to the question and not go beyond what's being asked. And lets her know to stay away from the Lilly rumor or any other women involving Masterson. And if she has questions to tell the judge she doesn't quite know how to answer something. She says she understands.

Jury is brought in. Jane Doe 1 is on the stand.

Mueller continues direct of Jane Doe 1...

Yesterday we left off, Sept 2002, you had been to def's home. And the incident there.

Correct.

You had woke up that next morning and Masterson was not in the home. You left.

Correct.

Where did you go?

To my car and to my home.

How did you get to your car?

A friend picked me up.

Who was that?

Vanessa Poole Mooney.

When she arrived, did you tell her what had happened?

Yes.

When she picked you up, how were you feeling?

Hungover.

What about with regard to what happened?

Embarrassed. Really ashamed. I didn't understand why I let that happen.

Did she inquire why you were there?

Yes, it was discussed.

Did you tell her how you got there and what happened?

Yes. I don't know how much detail. It's hard to talk to a friend in that situation.

After she picked you up, did she take you directly to your car?

I am not sure. I remember getting to my car.

Then what did you do?

I remember being at my parents' house.

Did you disclose what had happened to any of your friends. (Obj, overruled)

Yes.

Who did you tell?

I told Paige Dorian. Lisa Presley. Luke Watson. Brie Shaffer.

Who was the first person you told?

I don't recall.

You told Lisa Presley. Was she a friend of yours?

Yes.

What did she say?

She said, no way, you wouldn't do that.

Objection, sustained, stricken.

As a result did it have an effect on that relationship with Lisa?

No.

As a result did it have an effect on other friends?

Brie was upset because it was her boss. And others wrote reports were written.

How do you know reports were written?

I received copies.

What kind of reports?

Knowledge Reports, KR.

What are they?

(She asks the Judge if she can ansewr: As it goes to your believe, Judge responds)

JD1: They are reports about things that are not ideal and to make us aware of it and stop so it won't happen again.

What's the consequence to you of these KRs?

I was summoned to Julian Swartz, ethics officer.

He was who?

Works for Scientology, oversees moral infractions. Gives out punishment, that you put yourself through, steps.

So you saw KRs written about you in regard to 2002 incident, and you were called into Julian Swartz's office?

Correct.

And were there consequences to you, as a result being called in to his office?

I spent some weeks doing some ethics programs. Conditions. I don't know how to answer this. I'm trying to translate it.

Did you go through certain handling as a result?

Yes.

And the handling is certain things that you have to do given to you by staff officials of the church of Scientology? (Obj, overruled)

Yes.

And how long did that take?

A few weeks.

What about the relationship you had with Masterson in that time. Was that affected by the friends reaction?

Yes, I no longer felt that we had a friendship. My best friend Brie was very upset with me.

And again that was his personal assistant?

Yes.

Did Mr. Masterson say anything to you about what happened?

Yes

What did he say?

He called, he said he fell off a raft and hit his butt on a rock on a trip with Ashton Kutcher and he was sitting on a donut, and so now he knew what it felt like and so we're good now, right? (She's getting emotional relating this.)

Did the friendship continue?

No, I was made to "bury the hatchet." Pressured to say it was all good.

How were you pressured?

Initially with Julian Swartz and then with Brie Shaffer.

The handling by Swartz: JD1 is saying that she was taught to believe that anything that happened to you was your own fault.

Did you feel that it was your fault what happened?

Yes.

Do you still feel that way today?

Partially.

Why?

I drank, I didn't have a plan. I didn't stop it. I went through all of this and what I could have done to stop it.

You also felt pressure by Brie? How? (Obj, overruled)

I wanted to be her friend. She was upset, said her life was hell, because I had told Lisa, and Lisa was not cool with Danny, and it was affecting the whole group.

Did Mr. Masterson have to go through any handling with the church? (Obj, sustained)

Mueller: Did Mr. Masterson ever tell you he had to go through any handling?

In that phone call, he told me, we're good now, and that was it.

So was there a period after the incident that you didn't have contact with Masterson?

A long period. Through December.

What about Brie?

No, she was just real upset with me. Very uncomfortable but she didn't stop speaking with me.

I want to bring you up to April 25, 2003. On that date were you at this man's residence?

Yes. I was dropped off by Luke to pick up a set of keys so I could get into Brie's house.

Where was Luke's house?

Luke and Brie lived in Silverlake.

So you arrived about 1 or 1:30 am to pick up keys. What was the purpose?

To get through the gate and front door to Brie's.

Why?

That's where I would be sleeping and in the morning take Brie to the airport.

So you arrived solely to pick up the keys?

My plan was to pick up the keys and/or Luke and go to his place.

Did that happen?

No, Luke didn't have the keys, he said.

Then what happened.

We formed another plan. That we would wait for Brie, and we had friends. Luke was staying. There were guest rooms. We were staying.

Mueller tells the judge he has some photos to introduce as evidence.

Puts up photo of street entrance to Masterson's house at the time. 6227 Hollymont Drive.

Now a photo of some stairs.

JD1: After you go through the door at street level, you go up these stairs to the house.

You testified that in the 2002 inciddent, you were going up some stairs and broke your shoe's heel. Are these those stairs?

Yes.

Now another pohto at the top of the stairs, a front door with some ceramic pots on either side.

When you arrived, Luke Watson was there, were there others?

Fifteen to twenty.

Do you know the purpose of the gathering?

Just normal for him. He was DJing in his living room.

When you first got there and talking to Luke about going to Brie's house. Where did that occur?

As you look at that photo, to the right of that door was a circular table and two chairs.

So somewhere here on this landing? Just you and Luke?

Yes.

Had you seen Masterson at this point?

No.

Did you see him later?

Yes, while we were sitting there, I saw him talking to Jenni Weinman, his publicist, inside.

By the way, how did you get to the house?

Jenni Weinman drove me, from West Hollywood. There was a DJ at a coffee house, hard to get in, and she got us in.

So earlier, on April 24, you were out with Jenni Weinman?

Yes

Were there others?

The evening started much earlier at a restaurant and there were 20 or 30 people. Brie, Danny, Eric Balfour, Jenni Weinman, Jen Brill, Paige During, others. It was a celebration of Eric Balfour's birthday.

Brie was there, did she leave earlier that evening?

She left before me and said she was going home. She was packing for a two-week trip.

Later, getting the keys. Why did you need to go to Brie's house?

She explains she had left her own keys at Brie's house when they had left early that evening.

And you were going there because you were spending the night there?

Yes. To get up at 5 am and take Brie and her fiance to the airport.

So it was Jennie Weinman who drove you to Masterson's home. You had seen him at the house.

What happened when you saw him?

He was speaking with Jenni Weinman.

Did he make contact with you?

Later. 15 minutes, maybe. What are you drinking something?

What did you say?

Vodka something.

What did he do?

He brought me a tumbler with a red drink.

How big was it?

Like 8 ounces, 6 ounces? Just something you could hold in your hand.

Did you drink some of that?

Really sweet and really fruity.

You've had vodka, was it in there?

Yes, there was an effervescence of it, but it was mostly sweet.

Was that brought to you by him?

Yes.

You were out on the landing?

Yes.

What did he do?

He went back inside.

Had you had anything to drink before that on that evening?

No.

So what happened then?

I stayed outside with Luke. There were people around, saying hi. Luke and I were having a discussion about Lisa and this tour we were supposed to go on. Smoking cigarettes. I remember sipping the drink - I don't drink fast. We didn't tend to get along, but we were agreeing on several issues. That's what I mostly remember about sitting there.

Did you see Masterson again?

Yes, he stepped out that door and said, my last name, which was what people called me, and so-and-so is going in the jacuzzi, to the others out there.

So there were other people there?

There were at least two or three standiing there.

I said no, and Luke said we're talking. And Masterson said she's going.

What happened next.

Luke was saying no, I was saying no, and Masterson started to drag me. I sat down to pull my weight against him, but he was pulling me, and I started to go along with it because it hurt.

Mueller puts up another photo, of a hallway, and she explains that it shows some steps leading to the backyard. It was in this hallway that she was trying to sit down while Masterson was dragging her.

Mueller: How much of the drink did you have at this point?

About half.

How did you feel?

I felt weak. I was trying to sit down and I had no strength. He had all strength. I was confused why I couldn't pull my wrist from him.

By the way, how old were you then?

27

What happened next.

He started carrying me, saying, you know the rule, 15 seconds.

What did that mean?

Danny, beefore he throws you into the pool, you have 15 seconds to get rid of cell phones or whatever, or it's going in with you. I didn't have a cellphone, but i was grabbing for my leather boots because I didn't want them to go in.

What were you wearing?

Black slacks and a black tank top.

[Another photo, closer up on those stairs and back door.]

Did you go through that back door?

Yes.

How?

He carried me. I didn't get pulled up the stairs.

What did you tell him at this point?

No, no, I don't have clothes. I'm cold.

How did he react?

Nothing.

Was your body fully off the ground when he was carrying you?

Yes.

Other than feeling weaker, anything else you were feeling at that moment?

The overwhelming feeling at that moment was panic. Adrenaline.

Why were you feeling panic?

This is dissater. If get thrown in this jacuzzi in my only set of clothes. I have to be up at 5 to drive to the airport. This is the worst.

When you got to the backyard, what happened?

He threw me in. He picked up me up to the edge (it's above-ground jacuzzi) and pushed her in.

What were you wearing?

I remembered getting the boots and the pants off. I didn't want them to get wet.

Belongings?

Nothing on me.

Did Masterson say anything?

No.

Was anyone else in the jacuzzi?

Yes, two girls. And James Debello with them or standing outside it.

Anyone else in the backyard?

No.

[Photo of the backyard. Recent, furnishings are different.]

She points out where the jacuzzi was.

[Photo of the area where the jacuzzi was.]

What happened after you were thrown into the jacuzzi?

I sat there and Luke Watson appeared soon thereafter

What happened next?

Luke said, I'm sorry, I'm so sorry. I'll go get our cigarettes.

How did you feel?

Not good. I was looking over at the two girls. I couldn't engage. I wasn't seeing them well. I felt like I could just fall asleep and slip under the water. I thought I shouldn't be in there.

Had you been in that jacuzzi before?

Yes. Four or five times.

Temperature of the water?

Warm. Not too hot.

Was it different than before?

No.

Judge Olmedo decides to take morning break.

---

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