MUELLER BEGINS CLOSING ARGUMENT: Danny Masterson Trial, Day 21, 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.]
Early morning session.
Sartorial splendor alert: So here we were in the hallway, chatting with a fellow journalist, and we were both certain that for closing arguments defense attorney Philip Cohen would dress conservatively.
How wrong we were! Oh joy, what a getup to rule them all! Mr. Cohen is sporting a chocolate three-piece suit with white pinstripes. He's wearing a white or ivory shirt and his tie is a lovely reddish brown color. Brown and white saddle oxford shoes and brown-striped white socks complete an absolutely sumptuous ensemble. (A couple of observers likened it to the 'Al Capone look,' and who are we to argue.)
"Not the color I was expecting today," Judge Olmedo says when she arrives in the courtroom.
None of us did!
And hey, there appears to be some coordination going on today. Danny Masterson is similarly decked out in a light brown suit. It's not nearly as flashy as Cohen's look, but the two of them are complementing each other nicely.
Hey, a bit of news: We just heard that Friday is not a day off as Judge Olmedo originally scheduled, and so that gives us another day to bring in a verdict before Thanksgiving week.
Judge Olmedo begins by going over the specific incidents that are the charged events in the case of Jane Doe 2. Then she makes sure both sides are "argument-ready." She advises them to keep from speaking too fast, for the sake of the court reporter.
She advises the audience that arguments can get emotional, and she asks everyone to keep poker faces, and to go outside if they are getting emotional.
So now we wait for the jury to arrive.
There's a very large Masterson contingent today. Besides the usual characters in the full family section (Mom, Alanna, Jordan, Bijou, Will Masterson and others), there are a large number of people in the gallery. Chris Masterson, Chris Wadhams, Graham Bruwer and at least four others. I put it at 16 people in the Masterson crew today, at least.
Media row is packed.
Judge Olmedo is back, and we're on the record. Jury coming in.
We are getting going at 9:08 am.
The People are up first.
Mueller: Well, good morning ladies and gentlemen. We have made it. We are here for closing argument. And I think we are on target from when we first estimated, and that does not always happen. Closing argument, I will have two opportunities to speak with you. I will have this first opportunity and I will talk to you about the law and some of the evidence in the case. The defense will go after me, and I will have a final chance to come before you and give an argument based on what the defense might have raised in their closing. The reason we get a second chance, we have the burden of proof, and so we get that second opportunity to speak to you.
I first want to thank each and every one of you on behalf myself, Mr. Cohen, Ms. Anson, and on behalf of all the staff. We know you have busy lives, but your service here is important. It's important to the three victims in this case, the three victims who were forcibly raped this defendants, Daniel Masterson, sitting over here. A man who was controlling and a man for whom no never meant no. Now, Mr. Masterson has been sitting here in the court the last four weeks, always well groomed, well dressed. I can tell you these victims have a very different image of him. To them he is someone who was kind of the center of this circular world. The center of this tight group of friends. He was the upstat. The guy who would have the parties at his house and invite you over for a record.
The guy who would spin the records, and if you had too much to drink, he would invite you to spend the night, just to be safe. But if you were one of these women, you were far from safe. Because if you were incapacitated in his bed, he would rape you.
If you were incapacitated somewhere else in his house, he would come and find you. And if you were not yet incapacitated, he would offer you the alcohol to make you incapacitated, and then rape you. And if you were in any kind of relationship with him, he would control you. He felt that he had the right to have sex with you any time he felt like it. And if you said no, he didn't care. Because he feels he's entitled to it. That is the guy that these three victims knew.
We're responsible for our actions. And we are to be held accountable when we commit crimes. You all have the opportunity to hold this defendant responsible, and to show him that no actually means no. That is going to be your power.
I'm going to briefly talk about the law. Same count for all three. What are the elements. First, that the defendant had sexual intercourse with a woman: penetration by the vagina with the penis, and it can be however slight. You do not need ejaculation.
That Masterson and the woman were not married. Even with Jane Doe 3, they had a yearslong relationship, but they were not married.
That there was not consent for the sexual incident. Telling someone to stop, to get off of me, is not acting freely and voluntarily. Pushing someone off is not acting freely. That is not consent.
That the act was accomplished by force or fear. And we're going to talk a little about the force aspect. Essentially whatever is enough force to overcome the person's will. Just enough to break that person's will, to overcome it.
And the fear is accomplished if the victim is actually and reasonably afraid.
Now, consent, it's an about exercise of free will. It's a positive act of cooperation. Pushing someone away is not positive cooperation. Consent is voluntary and mutual. It can be withdrawn at any time. Past consent does not mean current or future consent. You have to have consent each and every time. The absence of no is not a yes. There is no consent when there is no force or fear. Current for one sex act is not consent for another. If someone agrees to oral sex -- "I'm good with that" -- doesn't mean you can go on. Or digital penetration. Consent to one does not mean you can just go to the other. Dating is not enough to constitute consent. And we've heard that a couple of times in this case.
(He refers to something Dr. Mechanic said. And Mueller describes a situation where someone is saying no and finally gives up, and then asks for a condom to be put on. Asking for the condom is not consent.)
You can change your mind during the act. So if you're in a situation where you're in sex and the person decides, I need this to stop. You can change your mind. Under the law, if the victim indicates things to get you to stop and you don't, it's a crime.
Words or acts, please stop, it's hurting. Or pushing the person off, trying to get out from under them. If the person doesn't stop, it's a crime.
Physical resistance or fighting back is not required. It's enough that you used your words. Stop, I'm done.
And if a reasonable person would understand and continues, it's a crime.
So force or fear. Again, physical resistance is not required. Fighting back is not required. You will not see that in your jury instructions, that fighting back is required. You need to consider the verbal or non-verbal threats that were made to instill fear. Look at the evidence. Were there verbal threats made to instill fear in the victim? Was there a display of weapons? Anything like that. Hitting, choking, physically restraining.
He puts up a busy slide about Dr. Mindy Mechanic.
I think the labeling aspect is so import. For victims, when we're not talking about a stranger, we're talking about a person we know, the longer you've been in a relationship, the harder it is to process it. But even if it's just a friend, and boom, you're in a situation where he has you in his bed and he's assaulting you. And afterwards you're trying to process this. Was this a rape? I know this guy. I've been in this guy's house multiple times. Was this my fault. Should I not have been drinking?
Under these scenarios, it's not black and white. Everyone processes this differently. Trying to tell someone you know that you're a rapist and I'm a victim of your rape, that's a hard thing. It's not easy. It's different than someone that's jumping out of an alley. It's someone you know, and it's hard to process. And how you do that is how you think about the stranger-danger rape and someone you know. We are human beings, we all will process this differently and take different times to do it. We are not all wired the same way.
So to assume that someone should have immediately gone to law enforcement, how could that person not recognize that it was a rape until years later. It's possible. And in 60 percent of the time, that's the case. It's complicated. It's not black and white, you know this person. You don't want to be a victim and you don't want to call him a rapist, despite the fact that he is.
Compliance and surrender. After you've said no, no, no. Here's my boundary, and he disregards it. He blows you off. And everything you've tried, you surrender. You go, this is what's going to happen, and what's left? You comply. You do so perhaps to avoid further harm. Maybe this won't escalate. Maybe I will preserve my health, my safety. Maybe I'll get an STD, or maybe I'll ask him to put on a condom.
What does the other person have? What comes to mind is Jane Doe 3. Within a number of months into that relationship she was told she had to become a Scientologist. And she did. And then she was told, you now need to disassociate from your family. Because that's what you have to do. And she did. And you need to disassociate from your friends who aren't Scientologists. What she was left with was being in this guy's world. His friends, his circle, and she gave up everything else she had.
And the interesting thing is, she did it willingly, she wanted to do this or at least she did it willingly, because she believed that this church was going to save her life.
You heard evidence about repeat contact. With JD2 and JD3. After these horrible sexual assaults, they went back and called him up. Or, in JD3's case, twice had consensual sex with him afterwards, in Los Angeles and Ne York. Why? They'd just been raped. And now, afterwards they're going back and having sex? What are they thinking?
I will tell you what they're thinking. Especially for JD3. There was the time she was in love with Mr. Masterson. And I think for years afterwards she still loved him. For her own reasons. And she wanted to repair that bond. She thought, you know -- back to the labeling -- perhaps this is something I did. Was this a rape? Did I see this correctly. Questioning herself.
No one wants to be a victim of rape. That's a hard thing to recognize. And then add in it's someone you've been in love with. Someone you do still love. And you have to get in your mind, he's a rapist. He's a rapist (looking at Masterson). And I'm a victim. That's hard, that's hard. And so she tried to repair the bond. It's easier that way. It's not as horrible as what it is. That this guy is really not a monster. That's the place you want to be in your mind. And so what do you do? Maybe kind of test the waters a little.
You want to make things better. Maybe I'll see him again. Maybe we'll have sex again. Maybe I'll feel the love. Maybe it will be better this time. And what did she recognize in New York? That he hadn't changed. She wanted it to be different, 'I still love him, but he hasn't changed.'
She's in a hotel room naked, he takes a picture of her, naked. She asks him please, Danny, please delete it. He says no. She recognizes that he's not going to change. She never saw him again. Not any relationship like that.
You've heard that there was reporting. Multiple interviews. As far as consistencies, Dr. Mechanic told you that the minor details should be expected to vary. You are in a situation where you have different questions posed by different interviewers at different times. We know it's not comfortable. When you go to the police department, and you have to tell them you've been forcibly raped. It's not an easy conversation. You do the best you can.
This is the first time these women had to do something like that. You're talking to a detective, talking to a DA, doing the best you can. And you're kind of guided by what they ask. There are going to be minor inconsistencies. But the major stuff? It was consistent.
SEPTEMBER 2002 slide.
Let's talk about Jane Doe 1. This is the Sept 2002 incident. This is not a charged event. You remember she was out with this circle of friends for which Mr. Masterson was the center, he was the upstat. They would all go out together. She had a couple of these greyhounds, grapefruit and vodka, she got intoxicate. He said, Brie called and you can't stay there, come crash at my place. So she did. And as she gets to his house, she tries to go to the guest bedroom. He says no and takes her upstairs. She's drunk, broke the heel of her shoe on the stairs. She thinks it's a joke, she's laughing. They're kissing. There's vaginal sex. And then she realizes there's pain in her anus. She grabs the sheets to pull herself forward to get away from him. She initially considered this consensual -- she still considers the vaginal sex to be consensual. The anal part she has a problem with. There was no consent for that.
The issue is, when she disclosed to her friends what happened, everything blew up. Her best friend Brie got really upset. Brie was Masterson's assistant. Brie had this Knowledge Reports written up. They're like tattle-tale reports in the Church of Scientology. you give a cop to the person you're writing on, and one to the church. And then you're called in and you're "handled." They have you go through programs. The bottom line is, everything blew up.
She was pressured to take responsibility for what she did. That she "pulled it in," that it was her fault and she caused it to happen.
Then, going to April 25, 2003. She was out with friends, including Mr. Masterson. At 1 or 1:30 she goes to his home. She was again supposed to spend the night at Brie's, and she went there to get keys to Brie's gate.
Luke Watson did not have the keys. Mr. Masterson gave JD1 a drink. She had not had any alcohol prior on that night. Within 20 to 30 minutes she began to feel intoxicated. Masterson grabbed her and began to pull her inside. She sat down to keep him from pulling her, he picks her up and carries to the backyard. He tells her she has 15 seconds to take off what she wants before he throws her in the jacuzzi. She starts to have these symptoms fifteen minutes after being thrown in. Vision problems, breathing problems, feeling nauseous. She thought she would throw up. She hadn't even finished that drink.
He takes her upstairs to his bathroom, he puts his fingers down her throat and she vomits all over herself. She laid down on the cool tile and she felt safe. She just wanted to stay there. He says "you're so fucking disgusting," and he pulls her into the shower. He soaps up her breasts. At one point he pulled her up by her hair. And she slumped back down and passes out.
She wakes up on his bed. He's on top of her, his penis is inside of her. She describes the feel of his skin. The weight on her. His penis inside her.
She grabbed a pillow and shoved it into his face, but he pushed it back down on her face. She could not breathe and she passed out. When she came to he was still on top of her and inside her. When she tried to push him away, he pinned her hands with one hand, and with the other choked her and she passed out.
When she comes to, she hears the sound of someone outside the room. He pulls a gun out of a drawer. he doesn't point it at her, but he says, "Don't fucking move." She passes out again. When she comes to, she crawls into a closet and passes out again.
By the way, those actions are force. if you're going to force a pillow down on their face and put your body weight on them, that's force. This is a forcible rape.
Later that same day, she wakes up, Masterson is somewhere, not in the bed, next to the bed, she leaves the house, goes to Brie's to get her overnight bag, and runs to her parent's house. It was her father's birthday. She missed the birthday barbecue. later that day they took a red eye to Florida. She described having diarrhea, and pain to her vaginal area and anus, and seeing bruises within 24 to 48 hours.
This is someone who went to Masterson's house solely to get some keys so she could spend the night at Brie's in order to give Brie a ride to the airport early int he morning. And then to make it to her father's birthday barbecue.
It is not reasonable to believe that JD1 is so sick coming out of the jacuzzi, that she is so sick she needs to have someone stick their fingers down her throat. And she knows she has to be up at 5 am to take Brie and then to see her dad. It's not reasonable, who has thrown up all over her hair, that she would be feeling romantic. It's a perfect time to haves ex. And by the way, knowing that just a few months earlier, her whole world had blown up for having sex with him. That KRs were written about, that she had to have an ethics program for. Relationships broken.
she's going to take that moment to say, yeah, that is a good time, let's have sex? No, not at all reasonable.
When she was in Florida, you know she began to develop some bruises. We wish we had some more photos. But that was in 2003, when they were still having negatives, and we have the photos we have. The best photo shows bruising on the hip. But we know from Rachel what she saw. She testified to the bruising.
When they got back 7 to 10 days later, she went to Julian Swartz. He was the guy she had to go to report these things. Again this is Rachel's testimony: she observed bruising on hip and arm area. And there was a disclosure that JD1 made, that she had one drink and it was inconsistent with the symptoms she was having.
Yu heard from Shaun Fabos. Not going to spend much time on him, but he was a family friend. he was the one there was a recorded phone call. On it he acknowledged that JD1 told him about what happened that night.
So when she comes back after talking to Mr. Fabos, she goes to talk to Julian Swarts. He tells her she can't use the word rape and you can't go to the police. It's a high crime if you do so, and you'll be declared a suppressive person. We've heard from these victims what that meant from them. The disassociation. The excommunication. So she complied.
Then in April 2004, she wrote a letter to Mike Ellis, the IJC, the guy you go to if you want permission for something like this. To sue a church member civilly or if you want to request permission to go to the police.
He responded. When she went in to Mr. Swartz, she wrote this Knowledge Report. Three pages, you have it in evidence. Three pages that explain everything that happened on April 25, 2003, and the one leading it up to it.
He was correcting her (Swartz), telling her she had to take out the word rape, that the gun didn't exist. He told her he didn't own a gun. And that she needed to remove any emotion from it.
On April 13, 2004, she wrote to Mr. Ellis, asking for his assistance. She wanted to report. Can I press criminal charges without fear of losing my family? This letter is also in your evidence. "I'm writing to you for help."
The response said she needed to decide for herself. He refers to an HCO Policy Letter -- Suppressive Acts. He tells her she needs to make her decision carefully and if she does go to the police she'd be in violation (Objection, overruled).
Despite this, she does go to report, to Officer Schlegel. And she brings him this three-page document. And also a copy of a Non-Enturbulation Order, which is like a gag order from the church
An investigation began, no charges were filed.
In July 2004, there was a meeting. And because JD1 listed Julian Swartz as a witness, the police did contact him and he got extremely upset about it. She had been told not to report it, and she had put his name on the list.
So this Kendrick Moxon shows up, attorney for Scientology, JD1 already knew there was this declare order waiting for her. Swartz had called her, saying he had been called by LAPD "You are in so much fucking trouble." he told her to come down. She knew a declare order was waiting for her.
Moxon said, you can sign this NDA and shut up about this, and you'll get some money, or your alternative is to go see Swartz and pick up your declare order. She was working for her family: She would lose her job. Her nine year old daughter was in a Scientology school, there would be consequences for her daughter. That wasn't much of a choice for her. So she signed it. There was $400,000 paid by this defendant to JD1.
She remained silent after that. She knew the consequences of this order if she'd talked about it. It's a non-disclosure order, so she did not disclose. Until she was contacted by Det Reyes in 2016, she learned there were other victims.
One was Jane Doe 3. With her you heard about two incidents. The one that is charged is from November 2001. You also heard about an incident in December 2001 when she woke up and she was bleeding in her anus. That is not the charged incident. The charged one is the November 2001.
You heard that she was in a relationship with Masterson. That first year, everything was splendid. She thought he was charming. It changed. she recalled physical abuse, emotional abuse. She recounted an incident when she came back from Paris, she was tired, she said no sex. She described when he grabbed her hair, pulled her out of the room. That is not a charged incident.
Then there is an incident in 2001 with Jennifer Esposito, and she says this changed things for her. Why? She was in public with him, holding his hand, he made some sexual comments to another female. It led to a big fight, and she abandoned him and went home. She thought he is not the same guy. He made this comment while he was holding her hand and they were walking down the street.
So then comes November 2001. Again, she is in bed sleeping, she woke up with him on top of her, inside her. This is the charged incident. She told him no, I don't want to have sex. Many times. He would not stop. Again, no does not mean no for this guy. He put his body weight down. It was painful. She said as a woman, my body was not prepared. I thought it was pretty significant when she said that. I think it shows the immediacy, the suddenness when this happened. This was not a foreplay workup. This was a tired woman, asleep, and she wakes up and this guy is on top of her, penetrating her. Pushed her arms back, put his forearm down on one arm.
She felt trapped until she got an arm free, and then pulled his hair and tugged his head. She pulled it hard. All the while he's still inside her. He hit her on the cheek, she described kind of a loosely closed fit. She used the word hit, and there was argument if it was hit or a slap. Who cares. He hit her on the face.
She screamed for him to get up. And when he did he spit on her, as he often did, and then called her white trash.
Then the incident in December 2001. There's been years of this emotional abuse, years of physical abuse. How could this man treat me like this. And now a month later comes Dec 2001. This is not a charged incident. At La Poubelle. The last thing she remembers is leaving the table. Then she wakes up in the bed. She's alone, confused. Her whole body hurt. The back of her head hurt. She had intense anal pain.
So she went in the bathroom to find what was wrong. There was tearing and bleeding. She went downstairs to confront him. She asked him what happened last night. And he told her he had sex with her there while she was unconscious.
She said, it broke my heart because I trusted him and I didn't think he would take it that far. And that's why she reported it the next day to the Church of Scientology. She believed the church had a justice system that could handle this. You report this. There's a handling process. he's going to get help.
she wanted him to get help. That's all she wanted. Well again, as you've heard. It's your fault, you pulled it in. You were out of exchange with the defendant. Meaning, he's providing a roof over your head, he's financially supporting you. So in exchange, you give him sex whenever he wants. If you don't, you're out-exchange.
That was confusing for her. She believed what these ethics officers were telling her. They were saying, it's not a rape. She believed them when they told her, you can't report this to the police. But she also believed them when they said this was your fault. So look to yourself, girl, it's you’re fault. And she believed them.
She was shown some policy letters, and letting her know if she didn't follow the rules she would be declared SP. And remember, she was in his world. Everything she knew would come apart. So she complied.
she didn't tell anyone until she married in 2009 and two years later told her husband Cedric. And what she told him about is this Dec 2001 incident. she mentioned some other things that were happening, but she mainly told him the Dec 2001 incident, because that stood out for her. Why? Because the Nov 2001 incident, that was normal.
This man she trusted had flipped her over and had sex with her while she was unconscious. That was such a violation, that made such an impact on her, she couldn't shake it. The rest was normal. The getting on top, saying no no no, having sex anyway. I gave up, he overcame my will, so I let hm, That was normal for her. Again, it's this processing. What she recognized as normal, this December stood out as so different. And that’s why you hear her talking about it. You hear her saying, this is my rape.
But you know what, that Nov 2001 incident is a forcible rape. Not someone who is unconscious, it's a forcible rape. he's on top of her, she's telling him to stop, and it's not until she grabbed his hair -- no touch face, no touch hair rule -- and that's what got him off of her.
That's why you're hearing about the Dec 2001 incident, because it was so impactful for her. The other one was part of the normal times.
When she asked Masterson to go to ethics program, let the church help, he blew her off. And that was for her again a decision-maker for her. If he was not at least going to get help from the church, then she's done.
and by the way, she went through weeks of programs. Reading books, what did you do wrong. get inside yourself and figure out what you did wrong, girl. She went through weeks of it. He didn't, why? Because he's an upstat, and there are different rules. That upset her. Her words: That forced me to make my decision. And that's when she left, Feb-Mar 2002.
Yes, they met up and they on two occasions had consensual sex, in LA and New York. People want to repair the bond. They have been in a relationship. and that year or so when things were good? She said, this is the guy, this is my guy from that first year. He was charming. And that kind of solidified for her. That embedded those emotions in her. This is the guy I want, the guy I remember. Not the guy who in Nov and Dec 01 was raping her. She was not ready to accept that.
(Before he starts Jane Doe 2, Judge Olmedo suggests the morning break.)
Thank you for reading today’s story here at Substack. For the full picture of what’s happening today in the world of Scientology, please join the conversation at tonyortega.org, where we’ve been reporting daily on David Miscavige’s cabal since 2012. There you’ll find additional stories, and our popular regular daily features:
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This is heartbreaking - hearing about all of these events in ine fell swoop. Thank You, Tony. We see how hard you’re working on behalf of all of your readers but also on behalf of the four Jane Does and also Masterson to bring us such a detailed account day by day.
You are quickly becoming a more prolific writer than Hubbard. Carry on and thank you the updates! Let justice be served.