Olmedo Rules: Details of the court’s decision on Scientology in Danny Masterson’s case

[Judge Charlaine Olmedo and defendant Danny Masterson]

On Monday and Tuesday, crucial pretrial matters were hammered out in Judge Charlaine Olmedo’s Los Angeles courtroom, and with defendant Danny Masterson in attendance (even though he wasn’t required to be there).

We now have transcripts of what went down this week in the crucial sessions that determined several important issues before next week’s start to Danny Masterson’s rape trial. We know you care about the details, and looking closer at what happened, we get some really interesting clues as to what’s in store for the That ’70s Show actor. (And we want to make sure readers are aware that some of what follows is graphic descriptions of sexual assault.)

Masterson is facing charges that he forcibly raped three women, all Scientologists at the time, between 2001 and 2003. He’s been charged under California’s strict “One Strike” law, and if he’s convicted of all three rapes he faces 45 years to life in prison. Jury selection in his trial is scheduled to begin Tuesday.

Masterson himself was brought up in Scientology and has been a very visible member of its Celebrity Centre. And when a preliminary hearing was held last year, which included testimony from his three alleged victims for the first time, Scientology turned out to be a major part of the case.

But as Monday’s hearing began, Danny’s criminal defense attorney Philip Cohen made it clear that they want things to be different in the trial itself. In his trial brief, Cohen had argued that there should be no mention of Scientology at all, and he also wanted Judge Olmedo to be aware of a particular situation that was making things even more difficult if Masterson is going to receive a fair trial: the anti-Scientology ads being run by Los Angeles mayoral candidate Rick Caruso.

We wrote about those ads, which attack his opponent, Karen Bass, for giving a fawning speech at a Scientology “Ideal Org” in 2010. But Bass has fired back, saying she now condemns Scientology’s “methods.”

Cohen: What struck me and what obviously concerns me is a couple of things. One, at a time when the left and the right, red and blue, Republicans and Democrats agree on basically nothing, the one thing that they apparently agree upon is that Scientology is an evil criminal organization.

Judge Olmedo: Actually, both Caruso and Bass are running as Democrats.

Cohen: I’m sorry?

Judge Olmedo: They’re both Democrats.

Cohen: Very well. OK. But they certainly have different political leanings…

Undaunted by Judge Olmedo’s trenchant interruption, Cohen soldiered on, trying to convince her that any mention of Scientology is really unfair to his client.

Cohen: The public is being inundated with this. That, to me, is a major problem in the best of circumstances given what the government seeks to do with Scientology in this case. Quite frankly, our position is we want to limit Scientology…If something needs to be referred to, it could be called a church, an organization, a club. There will be many ways to reference any relevant subject matter rather than labeling it Scientology.

When Judge Olmedo turned to Deputy DA Reinhold Mueller for his view, the prosecutor pointed out that although he’d seen the ads, he figured it was something they could take care of at jury selection.

Judge Olmedo, who said she would save her rulings until after getting all of the arguments in, then turned to a witness the defense wanted to exclude. This was the 1996 witness that we wrote about on Tuesday and described this way: “When the DA’s office charged Masterson with raping the three women in incidents that had taken place between 2001 and 2003, the charging papers revealed that the DA had also considered, but didn’t charge, on allegations by two other women. One of those women alleged that she had been sexually abused by Masterson in 1996, when he would have been only about 20 years old.”

Cohen objected to the woman coming into the case, and he began explaining why she was an inappropriate witness for a forcible rape trial. You see, the trial is about whether Masterson raped three different women through “force or fear.” But the 1996 woman, Cohen explained, just drank too much, passed out, and then Danny had his way with her. And that’s just a different thing altogether.

Cohen: Even if assuming [the 1996 witness’s allegations] to be true, what she lays out is an allegation of rape by use of alcohol or drugs. That is absolutely not what Mr. Masterson is charged with. In fact, it is diametrically opposed to what Mr. Masterson is charged with.

Because Masterson is accused of forcible rape, and multiple counts, he can be charged under a law that ignores the statute of limitations. But if he had simply raped these women by getting them blind drunk, then too much time has passed to prosecute him, Cohen explained: “We would love this to be a rape by alcohol or drugs case because it wouldn’t be here,” he said.

Yeah, take a look at that again. After describing Masterson getting a woman so drunk he could rape her without using force, Cohen says he “would love” for that to be the situation with the three women facing him in court next week, because then there would be no case.

Mueller wasn’t having it, saying that if the 1996 witness was raped as “an unconscious victim or rape by intoxication,” it didn’t affect the evidence code as far as bringing her in. The fact that it showed such similarity to the later incidents was why it deserved to be presented to the jury.

Mueller: There is two acts, separate acts, different times. The first involved the defendant [Masterson] inviting after they finished filming a movie, inviting a group of people over to his home. They had kind of a party. There was alcohol. The victim in that case became intoxicated. He invited people who were intoxicated to spend the night at his home. She accepted to do that, among some other people that stayed as well. She laid down in a separate bedroom and went to sleep or passed out. And at some point during the night, the defendant came in, picked her up and essentially carried her to his bedroom where she went unconscious again. And then when she woke up, he was already on top of her penetrating her. And then she passed out again.

The second incident was sometime later. Somehow he had learned where she was living, her address, showed up at her place, brought a bottle of Jack Daniel’s, they shared a drink and shortly thereafter she became inexplicably incapacitated. Passed out. Same scenario. She wakes up, he is penetrating her and then she passes out again, wakes up the next morning naked. The fact pattern, the manner in which the defendant has assaulted each of these victims is so consistent, it absolutely shows a common plan, a common design.

But Cohen disagreed that what had happened constituted rape because he claimed the witness herself had not called it that.

Cohen: She herself doesn’t characterize it as rape. She characterizes it as ‘really shitty behavior.’ This is coming out of her own mouth.

They then moved on to the defense motion that testimony should exclude any mention of domestic violence in the six-year relationship between Masterson and Jane Doe 3 that led up to her incident.

And we need to pause here for a moment to go over again how the three alleged victims are being identified. When the DA’s office charged Masterson in 2020, they described the three victims as…

— a 28-year-old woman who was attacked in April 2003. This woman is known as Jane Doe 1 in both the criminal and civil cases. She testified last year that she was a part of Danny’s social circle and knew him, but they were not dating when she went to his house and in the early morning hours of April 25, 2003, had a drink in his jacuzzi, felt suspiciously intoxicated, and he took her upstairs to his bathroom, put his finger down her throat to help her throw up, washed her off in the shower, and began sexually assaulting her.

— a 23-year-old woman, who was attacked between October and December, 2003. This woman is known as Jane Doe 2 in both the criminal and civil cases. She testified last year that she knew Masterson socially but they were not dating when she accepted an invitation to go to his house, he gave her a drink, she became suspiciously intoxicated, she ended up in his jacuzzi, and then he took her to his shower and attacked her despite her pleas not to have sex.

— a 23-year-old woman, who was attacked between January and December 2001. This woman is known in the criminal case as Jane Doe 3, and in the civil case by her actual name, Chrissie Carnell-Bixler. Chrissie says she made her name public because when we first broke the story of the LAPD investigation in 2017, Masterson’s publicist gave her name to numerous news websites and she was inundated with calls from media and felt forced to be public. Chrissie was in a six-year relationship with Masterson before her incident, when she told him she didn’t want to have sex and he forced himself on her, she alleges.

A couple of things have caused complications with this naming convention. In court, the two sides use partial real names of the alleged victims to avoid confusion during testimony, and some news organizations have then used those partial names in their stories, to the horror of the women. (Nearly every legitimate news organization has a policy against identifying sexual assault victims in court procedures.)

Adding to the confusion is that in the prosecution’s most recent trial brief, Mueller switched up the names and began referring to Chrissie as Jane Doe 2. We hope Judge Olmedo notices the error and lets him know.

So, getting back to the transcript, Masterson’s defense attorney, Cohen, wanted to keep Jane Doe 3 from talking about problems she had with Masterson over several years of their relationship leading up to two incidents she is complaining about (but only one is the subject of the charge.)

Cohen argued that the incidents of domestic violence she has testified to — Danny spitting on her and belittling her or dragging her out of bed if she wouldn’t have sex with him — weren’t actually crimes, so shouldn’t be mentioned.

Mueller explained why he disagreed and wanted the evidence in.

Mueller: The evidence with regard to the domestic assaults really goes towards her state of mind, toward her behavior in terms of perhaps allowing unwanted sex at times in order to avoid being assaulted…So she took certain measures, in essence, to kind of thwart his assaultive behavior. I think that’s relevant and important for the jury to understand.

Judge Olmedo then turned to the expert that the prosecution wanted to bring in, CSUF psychology professor Mindy Mechanic, who has expertise in how victims of domestic violence may act in counterintuitive ways as they struggle to understand what they’ve been through.

A new member of the defense team, Karen L. Goldstein, argued against having such an expert in the trial.

Goldstein: The evidence about mental state, while it might be minimally relevant, in no way ties into whether a forcible rape was committed….This kind of testimony is so dangerous because juries really give what I would call unmerited credibility sometimes to somebody who speaks as an expert.

Mueller said Mechanic’s testimony would be important for the jury to hear to help understand not only Jane Doe 3’s post-attack behavior, but also with Jane Doe 2.

Mueller: Well, also [Jane Doe 2] because she did testify that, after the assault, that she was still trying to process what had occurred because this was not coming from a stranger. This was an acquaintance, somebody she had known, to some degree, perhaps, was interested in starting a relationship dating relationship and this happened…I think she testified to the fact it took her a while to even recognize that what happened is a rape.

I think both of them — [Jane Doe 2 and Jane Doe 3] — were struggling with self-blame. Was this a rape? Did I do something wrong to cause this to happen? …Also, there was continued post-sexual assault contact with both [Jane Doe 2 and Jane Doe 3]. Jurors might wonder, why are victims doing that? They’d just been raped… This expert is there to kind of disabuse and explain perhaps why that occurs….I think it’s extremely important that this expert be able to testify.

The prosecution wanted to bring in another expert as well, to help the jury understand the arcane ways of Scientology. They were proposing to bring in former Sea Org official Claire Headley.

Goldstein also handled this for the defense, arguing that Claire’s description of her expertise included her “escape” from Scientology and that she and her husband Marc Headley help others “escape from Scientology and start their lives over.”

“This is clearly not an unbiased person,” Goldstein said.

From the prosecution, Mueller’s co-counsel Ariel Anson said that they would not be putting Claire on to talk about her own escape about Scientology or feelings about it, just to help the jury understand the complex rules that the alleged victims would have been operating under and that kept them from reporting the crimes earlier.

Then, there was an interesting aside from Cohen about Scientology in the trial. We say interesting, because it was pretty obvious he was referring to the way the previous defense team, Tom Mesereau and Sharon Appelbaum, introduced Scientology materials at the preliminary hearing and it backfired disastrously.

Cohen: I was not involved in the preliminary hearing. And the fact that something was mentioned or questioned about or brought up at the preliminary hearing, I would ask the court and the government, has no connection to what the defense seeks to do at trial.

Then it was time for a short break.

Once they got going again, Judge Olmedo moved on to what are known as “fresh complaint witnesses.” These are witnesses who would have been told about the assault by a victim around the time it happened which would otherwise be considered hearsay but can come into sexual assault cases under certain circumstances.

They discussed a male friend of Jane Doe 1, who she told what Masterson had done. Another potential witness is a female cousin of Jane Doe 1 who saw her in the days immediately after the incident on a family trip in Florida.

Another witness they discussed is Jane Doe 1’s mother, who learned about the attack from her daughter in December 2003. “From then on, the mother had written all these reports to the church and literally laid out a full description of every detail that [Jane Doe 1] had described,” Mueller said.

Another witness they want to call is Jane Doe 2’s mother. “[Jane Doe 2] had called her on the phone. I believe it was a phone conversation, and she described that, it was graphic, that he was pounding into her from behind and hurting her and she didn’t like it. She told him to stop,” Mueller said.

Another witness is an actress friend of Jane Doe 2, and also another female friend of Jane Doe 2. “[The friend] at the time when they were talking had noticed a personality change in [Jane Doe 2]…that she just seemed dazed and weirded out by this thing that happened. [Jane Doe 2] wasn’t sure how to describe how this thing happened between her and Danny. She just described it, he demanded she go over and see him, and she was kind of weirdly intrigued by it, so she went. She said that he demanded that she drink. And she said, ‘I really don’t want to sleep with you.’ She said, ‘Please, Danny, I don’t want to have sex.’ And then he just had sex with her. Then she said it was very, very violent and that he was like a jackhammer,” Mueller said.

And there is Jane Doe 3’s husband. She told him about a year after they were married in 2009 about the attack. Mueller read from Jane Doe 3’s testimony at the preliminary hearing: “He instantly said, ‘He raped you,’ and I defended him. I said, ‘No, no, no it’s not rape.’ My husband said, ‘he raped you.’ I kept defending him. I didn’t want to think about this. I wanted to keep it buried. I defended him. I said he saved my life because he got me into Scientology.”

Judge Olmedo then moved on to the evidence of harassment and intimidation that the alleged victims have been through since they came forward to the LAPD in 2016. This is also the subject of the civil lawsuit, which was filed in August 2019.

Goldstein, for the defense, said this blurred the lines with the civil case, and if the prosecution really planned on bringing in 22 examples of harassment that they mentioned in their trial brief, then the defense would need to bring in 27 witnesses to rebut them, and there goes the idea of a one-month trial.

Mueller countered that it was established during the preliminary hearing that the court would consider the state of mind of the alleged victims and what caused them to wait to report. The women said they feared retaliation by Scientology, and so actual evidence of that retaliation, even if it couldn’t explicitly be tied to the church, would go to supporting their state of mind.

Mueller: The People are not looking to try and introduce every single alleged incident by these three victims. There are — between two of the victims, I think there are five incidents, in particular. The death of the family dog [of Jane Doe 3] while she was in Austin, Texas under very suspicious circumstances. Yes, she took the dog in for an autopsy. Yes, they determined the throat was crushed. There was an event that happened just shortly before that where [Jane Doe 3] was followed. She had to go into the police station. The person who had been following her left. She then went home and found her dog severely injured. That incident not only raised a lot of fear and concern for her and still does today, but also was the impetus for her to move then, to move from Austin, Texas to Los Angeles. While here in Los Angeles, they had a repeated incident. And I believe the court’s probably aware, but there was a big chunk of hamburger meat, raw hamburger meat, thrown over the gate into their backyard. There was a big blue cube of what was determined to be rat poison. The dog ate it, died. There was a veterinarian, they did do some toxicology reports and determined there was a rodenticide, rat poison, that was the cause. Again, very traumatizing incidents for [Jane Doe 3] and her husband. It’s on her mind. It’s causing fear. It’s causing concern among other things. But there was then the other day which, we sent to defense counsel a recent Instagram threat and it said: “You’re a fucking liar and a piece of shit kind of person for lying about Danny Masterson. I hope you burn in hell. I hope you find a fucking deep grave and just fucking jump in already because me and a group of people are publicly shaming you. We will make sure you pay for the lies. We know the truth, all because you didn’t get the money you wanted. You’re a fucking Ho’. The public shame will not stop until Danny gets justice. If you are ever going to be anything in life now, you’re not now.” It goes on and on and on with threats. This was probably maybe five, six days ago that she received that.

Mueller also referred to a woman going through Jane Doe 1’s trash in the middle of the night and pointing a flashlight into her windows, but otherwise they only intended to bring in a few examples.

Goldstein countered that the defense was arguing there was no evidence that any of these incidents had any ties to Scientology or Masterson.

Goldstein: All of this evidence invites the jury…to convict based on guilt by association. Just to give the court a sample…one of the incidents the state mentioned, the city attorney’s office already rejected due to insufficient evidence. This woman who was supposedly going through somebody’s trash has mental health issues. She was interviewed. This is the kind of thing we would have to do. We’d call the LAPD officer who took the report. We call the woman with the mental health issue. With respect to the Instagram post, we looked at said Instagram post. This person also follows “It’s That ’70s Quotes,” which is about “That ’70s Show.” That person also follows Topher Grace, who is a celebrity. That person follows Leah Remini — we know who that is — and Wilmer Valderrama. We would go down this rabbit hole of nitpicking war of attrition.

Judge Olmedo then moved on to the question of firearms owned by Masterson. The prosecution wanted to bring in evidence of his ownership of a single firearm at the time of Jane Doe 1’s 2003 attack. She testified last year that he brandished a weapon when he threatened her to keep quiet about what had happened.

What the defense objected to, however, and what the prosecution agreed not to bring up, was a statement by Jane Doe 3 that, when she was in her six-year relationship with Masterson, he owned “hundreds” of firearms.

The defense objected to any evidence being presented that the alleged victims had been drugged by Masterson. Both sides ended up agreeing that the women can describe feeling suspiciously intoxicated after a single drink, but because there is no specific evidence of drugging, they should not claim that it occurred.

The defense said it didn’t want Masterson’s former DJ name — DJ Donkey Punch — and its sexual meaning mentioned during the trial, and the prosecution said it would only try to bring it in “if it becomes relevant or the door gets opened somehow.”

The prosecution then moved to an issue about Jane Doe 2’s past. She had gone to the church for a prior rape, and how the church handled it convinced her not to go again to the church when Masterson attacked her.

After lunch, the defense said it wanted the jury to know about the California law that would give the women a year after conviction to sue Masterson for rape. (They are currently suing Masterson and Scientology for the harassment, not for rapes.) The defense wants the jury to consider whether that is a motivation for saying something that isn’t true, that the women would then cash in if Masterson is sent to prison.

Then, they got back to the subject of Scientology.

Cohen: I think that the information that we provided with our moving papers certainly gives rise to a concern regarding empirical data regarding Gallup polls that sought to get people’s take on traditional Catholicism, traditional religions and, it turns out, Scientology nevertheless went out as the most notorious or nefarious of religions.

We’ve only added to that with the information from this morning, which I think is credibly illustrative and demonstrative because it doesn’t come from the defense. These are objective, I don’t know if ‘objective’ is the right word, but they’re certainly unrelated, independent people — they happen to be mayoral candidates — that believe the more that they they can attack the other side to Scientology and distance themselves from Scientology gives them a better chance of getting elected with the voting public of Los Angeles…

I think every time the word ‘Scientology’ is mentioned in this trial, it becomes harder and harder for Mr. Masterson to have a fair trial on what he’s actually charged with, which is, again, a simple case. Not simple in terms of not important and not simple in terms of the gravity of what’s alleged and misconduct that’s alleged but simple in terms of basically he said/she said….

Judge Olmedo: I understand there may be some negative information out in the public sphere as it relates to Scientology, but sometimes being negative and something being inflammatory are two different things…

Cohen: We’ve submitted a number of different articles. We’ve submitted a number of different studies….How the general public views Scientology, it appears to be more negative than really any other religion, apparently, traditional or otherwise.

Judge Olmedo: Putting aside the effectiveness or the veracity of negative political campaign ads, how is Scientology — the things related to Scientology we’ve been discussing — how is that more inflammatory than, let’s say, evidence concerning street gangs, prison gangs, white supremacy, outlaw motorcycle clubs, which evidence comes in all the time and it certainly is negative. Evidence of a serial killer, you know, Richard Ramirez the Night Stalker, being a Satanist. Negative evidence comes in all the time, whether it’s organizational-related or individual-related, if there is a relevancy to it. And I know you’re going to argue it’s not necessarily relevant, but I would think some of the things I just mentioned are far more negative and potentially inflammatory than Scientology…and as I said, they’re not so inflammatory that they’re excluded from court…And those cases are tried all the time, and we find jurors. Especially in a county the size of Los Angeles, we can find jurors that can evaluate that type of evidence objectively….The problem I have with the argument is the presumption that the mention of ‘Scientology’ — even the word itself — would so inflame a juror that emotionally they would just say the defendant has to be guilty if Scientology is mentioned or there is a connection to Scientology.

Judge Olmedo then asked Cohen about the argument in his brief that mentioning Scientology would violate Masterson’s 5th, 14th, and 1st Amendment rights.

Cohen: Well, I think the 1st Amendment is again…I think it would be problematic — let’s step back and think about some other trial and the defendant was a Jew and every witness that takes the stand is asked are they a Jew. That’s a problem, and it has no place in a trial. It shouldn’t matter whether they’re a Jew or not, or a Catholic or Muslim or any other religion. It shouldn’t matter whether they’re gay or not. There are certain things that the law specifically tells us and the jury instructions specifically tell the jury, you are not to consider. So to treat Scientology differently than you would Catholicism, Southern Baptist, take your pick, and ask every witness who gets up there ‘What is your religion?’ and how that apparently affects the guy sitting next to me, I think is problematic. So I think there is a significant risk of 1st Amendment concerns and violations…

Mueller: I just couldn’t disagree more. To make a comparison if this was a Jew and somehow a temple were to hold themselves out the way the Scientology organization holds themselves out in terms of how they direct their members to do certain things or not do certain things, then that would be relevant as well. But there is considerable probative value here. I mean…the court has had the opportunity to hear these witnesses over the course of three days or four days, whatever it was. And it’s not just about disclosure or the delayed disclosure, but, you know, it’s their entire state of mind. It’s their entire behavior. Some of these are second generation Scientologists, so it has been part of their life. They are, the have to behave a certain way. If something happens between one member and another, there are certain individuals they have to report to. And then once they report that, then there are special ways of handling that person for reporting. They’re told, ‘In this case that what happened to you it’s not rape. Don’t use the ‘R’ word, you can’t say that. You can’t report to law enforcement.’ You’re instructed not to report….

Look, Scientology is not on trial here. The jury is going to understand that. The jury will be told. I would probably even say that — well, I would say that even myself in opening statement.

Before allowing Cohen to respond, Olmedo pointed out a problem: The defense wants to impeach the victims on the civil lawsuit, but how do you do that without mentioning that the lawsuit is against Masterson and Scientology?

Cohen answered that if the judge agreed to keep the word ‘Scientology’ out, he wouldn’t bring up the lawsuit.

Cohen: It is disingenuous to say the government is not placing Scientology on trial. Yeah, they’re not on the verdict form, they’re not in the complaint. But listen to Mr. Mueller’s statements: ‘Their entire behavior was controlled by the church.’ ‘They had to behave a certain way.’ ‘Their entire being was wrapped up in this church.’ Do you think Mr. Mueller is saying that because that’s a good thing that their entire being was wrapped up in the church? I don’t think so. He’s saying that’s a horrible thing. They’ve been brainwashed and controlled since birth. That’s not putting the church on trial?…Why does he want them to know we’re talking about Scientology? For the exact reason that the candidates want the electorate to know.

It was the end of a long day, and Judge Olmedo spoke directly to Masterson.

Judge Olmedo: Mr. Masterson, my last order was for you to be in court starting October 11th for jury selection.

Masterson: Yeah.

Judge Olmedo: You probably will be curious about my rulings tomorrow. But if you want to be here, you can be here. If you don’t want to be here, my order for you to be present actually starts October 11th. I didn’t want you to think you are required to be here now if you didn’t want to.

Masterson: I appreciate that. I’ll see you tomorrow.

Judge Olmedo: OK. Then we’ll see everyone at 8:30 in the morning.

DAY TWO (Tuesday)

Cohen started out the new session by saying he had a problem with them having five separate witnesses all testifying to what Jane Doe 2 said to them after her attack. One or two is sufficient.

And one of these statements was in 2016, 13 years after the attack.

But then Mueller took that up and described that incident, and it was fascinating.

It involved two women we are not naming for now, but they are well known in certain circles. (They will be named if they testify.)

Mueller: [Witness 1], I think, had a dinner invitation at her house. She had known [Jane Doe 2] for some period of time. [Witness 2] had never met [Jane Doe 2] before. During that dinner, at some point, because [Witness 1] is or was at that time a part of the Church of Scientology and knew Mr. Masterson, the topic came up. His name was mentioned and apparently from the statements that had been given by both, [Jane Doe 2] burst out and she was very emotional. I think she was crying. She shouted, just shouted, that Mr. Masterson had raped me, then she got up and walked out or ran out of the home….

There is an email that [Jane Doe 2] had sent to [Witness 1] apologizing for her outburst, that she did it in front of her children. There is a message from [Witness 1] to [Jane Doe 3] where they’re talking about something unrelated, and she just happens to mention that [Jane Doe 2] had been over to her house and this sudden outburst that Mr. Masterson had raped her. And that’s how [Jane Doe 3] found out about [Jane Doe 2]. That’s how [Jane Doe 3] then contacted our investigating officer and said, “I just learned there may be somebody else.”

We hadn’t heard that story before, and it stuns us. Wow. (How Jane Doe 3 had, shortly before this, found Jane Doe 1, is another rather amazing tale that we hope to tell before too long.)

It was now time for Judge Olmedo to begin giving her rulings, and she apologized that they were so lengthy, but she knew that the case would be seen by a higher court at some point, and she wanted her reasoning to be spelled out in detail.

She warmed up with some case law parameters that were guiding her. Then, she took up Masterson’s request for a delay because of the Rick Caruso ads.

Judge Olmedo: The defense request for a continuance of the jury trial is denied…The court finds that the sheer size of Los Angeles County and the use of the jury questionnaire along with voir dire addressing both the potential jurors’ exposure to the political ads which mention Scientology is sufficient to ensure that both the defendant and the people are able to select a fair and impartial jury for this case.

The mayor’s race is for the city of Los Angeles. Our jurors are drawn from the county of Los Angeles. The county which is comprised of not one but rather 88 independent cities. And while some of the general public may hold disfavorable views of Scientology, there is no evidence before this court to suggest that everyone holds negative view of Scientology or that any individual would be unable to set aside any negative views and objectively weigh the evidence presented to them with an open mind.

Now, as for the 1996 witness, the woman who woke up twice while drunk and found Masterson penetrating her.

Judge Olmedo: The court is not going to admit that in the People’s case-in-chief. The People can reraise the issue in rebuttal depending upon what has been admitted or testified to in the defense case-in-chief…With regard to additional witnesses who aren’t charged, the court is concerned under 352 regarding an undue consumption of time. Also, the uncharged incident took place…four to six years prior to the charged conduct.

So the 1996 witness won’t be part of the prosecution’s main case, but may be able to come in on rebuttal depending on what the defense does.

As for allowing in prior evidence of domestic violence in Jane Doe 3’s relationship with Masterson, Olmedo will allow it.

On the prosecution’s expert:

Judge Olmedo: The court will admit the testimony of Mindy Mechanic. The court finds her to be foundationally qualified as an expert. Any further objections to her qualifications go to weight, not admissibility and can be brought forth in cross-examination. Mindy Mechanic may also testify to the areas proffered by the people including short-term and long-term memory implications from alcohol consumption and victims’ counterintuitive behavior. The court finds such testimony is outside the common knowledge of the jury and such testimony would assist the jury.

For fresh complaint witnesses, Judge Olmedo laid down some parameters to keep their testimony tightly focused.

Regarding Claire Headley, Judge Olmedo said she was impressed by the ability of the alleged victims to explain Scientology policies during the preliminary hearing, and so she didn’t think an expert was necessary: “The court found their testimony to be more than adequate to explain some of the internal workings of Scientology. And I understand that the defense is going to challenge them, but, again, this is not going to become a trial on Scientology.”

As for the evidence of threats and harassment that the alleged victims say they’ve been going through…

Judge Olmedo: The court is going to allow some testimony regarding harassment and stalking from the victims only in general terms…For instance, the People may ask and/or the witnesses may testify that they delayed reporting the incidents due to a variety of reasons including the fear that they would be targeted for harassment by Scientology members and its Fair Game process as they understand that. But generally, and when they began cooperating with outside law enforcement in 2016 and 2017, they believed they were experiencing harassment and staking in a number of incidents which continues up to this trial or five or six days ago. But questions either on direct or cross-examination concerning specific instances will not be allowed…

Judge Olmedo will allow evidence of Masterson’s ownership of a firearm at the time of Jane Doe 1’s 2003 attack, but not the statement by Jane Doe 3 that he owned hundreds of guns.

As for Jane Doe 2’s prior incident: “The court will allow the People to elicit from [Jane Doe 2] that she was the victim of a prior rape and to explain her conduct of going to Scientology and reporting it and what their response was and how that impacted what she did in this case and why she took the actions that she did or didn’t take actions, more appropriately, after the charged incident. The court is not going to allow the People to go into specifics about the prior rape, that’s irrelevant. What is relevant is her state of mind explaining her conduct.”

After a few more minor matters, Judge Olmedo called for a break before making her big ruling: How Scientology would be handled in the trial.

Then, she summarized the defense’s argument for keeping Scientology out.

Judge Olmedo: If the defense argument had merit, it would stand to reason there would be no reason for a gang member, a serial killer, a white supremacist to obtain a fair trial if gangs or white supremacy or multiple murders were admitted before the jury regardless of the evidence’s relevance to the issues…

I find the admission of Scientology evidence in certain aspects, as I’ve already indicated, to be more probative than prejudicial, and the court will allow its admission as I will explain…

Scientology evidence is relevant in this case to explain and/or evaluate: One, the victims’ delay in reporting the crimes to LAPD or authorities outside of Scientology; two, the victims’ credibility on the stand and any fear of reprisal such as harassment or excommunication for reporting the crimes to outside authorities; the victims’ conduct before the crimes charged including why the victims were at the defendant’s house, how they knew the defendant, the nature of the relationship between the defendant and the victim, and the victims’ conduct during the charged crimes, including accepting drinks from the defendant and submitting to defendant’s verbal commands and the victims’ conduct after the charged crimes, including staying with or contacting defendant, going to Scientology officials for assistance, and delaying the reporting of the charged crimes to the police.

Scientology evidence is also relevant to evaluating the victims’ credibility on the stand as they expressed a fear of retaliation and of excommunication from family and friends. Scientology evidence is also relevant to the defense proffered evidence including the admission of evidence of the civil suit filed by the victims against Scientology, David Miscavige and the defendant, the [2004] settlement agreement signed by [Jane Doe 1]. And defendant as well to evaluate the credibility of the defense witnesses who are also members of the Scientology organization, presumably.

I don’t actually know who the witnesses may be as far as the people who were present at the defendant’s house on the night of [Jane Doe 1]’s incident. I believe some of those individuals are or were Scientology members…

(And with this reference, we want to point out that a number of witnesses who are going to be called, as Judge Olmedo says here, weren’t discussed at all during these two days. As we said Wednesday, we learned that one person the prosecution informed the defense that it intends to call is Lisa Marie Presley. There are also other important witnesses we know about, including those who were, as the judge indicates, there at Masterson’s house the night of Jane Doe 1’s incident.)

As for the defense arguing that witnesses should not be asked if they are Scientologists, Judge Olmedo cited case law to the opposite. “No case or statute that I could find or cited by the defense holds it is improper to question witnesses about matters that don’t relate to religious practices such as how they know the parties involved, the nature of the relationship of the parties and that they belong to the same organization, religious or not. The court will allow such questions as long as it doesn’t go to some more broader stereotype or bias type of argument,” she said.

As for 1st Amendment concerns, Judge Olmedo said she had a question about standing: “Who has proper standing to raise this argument?”

She questioned whether Masterson himself had that standing, and cited a number of cases, and she has come to the conclusion that Masterson’s rights are not going to be violated.

Judge Olmedo: The court finds the admission of Scientology evidence in the case a criminal rape jury trial does not implicate the 1st Amendment.

While the defense asserts that the admission of such evidence, in essence, puts Scientology on trial and is, thus, unconstitutional, the defendant first looks back at cases involving the ecclesiastical extension doctrine. That doctrine grew out of so-called church property cases.

However, those cases involved internal church disputes and is noted in Roman Catholic Archbishop of Los Angeles versus Superior Court — the case I cited in our last hearing and I encourage the parties to look at…The court in that case held the constitutional rights to freedom of religion does not bar disclosure of criminal grand-jury subpoenaed, internal documents. The 1st Amendment embraces two concepts, the freedom to believe and the freedom to act. The freedom to believe is absolute. The freedom to act cannot be absolute as conduct — even religious conduct remains subject to regulation for the protection of society…

Although the 1st Amendment does prohibit a jury from considering the truth or falsity of a religious belief as held in United States versus Ballard, a case cited by the defense…it does not prohibit the jury from considering whether a person’s actions were sincerely motivated by a particular religious belief. (United States versus Rasheed, a ninth circuit case.)

In addition, the rape prosecution of Warren Jeffs, the self-proclaimed prophet of the Fundamentalist Church of Latter-Day Saints, Jeffs was accused of raping two girls, 5 and 12. Both girls believed they were one of the many wives of Jeffs. In addition, a few older women who also believed they were the wives of Jeffs assisted with the rapes of the two young girls.

Evidence of the tenets of FLDS was relevant and admitted for numerous purposes at trial and explained why the two girls submitted to the rapes, believing they had been legally wed to Jeffs, although they were not; and that, as wives, they had to submit to their husband’s sexual wants; and to explain the language used during the rapes that was heard on audio tapes of the crimes including the phrases “Heavenly comfort” and “Heavenly sessions” to refer to sex acts.

Judge Olmedo cited a number of additional cases, and then one involving Scientology we hadn’t heard about before. It involved a 1977 killing by a man named Dale Dean Thompson who confessed “to a coworker who was a Scientologist and told the defendant he had reached the level of Operating Thetan.” The point, for Olmedo, was that evidence about Scientology’s practices were testified to in open court.

After several more cases (Judge Olmedo really studied the subject in impressive depth), she asserted that Masterson could not wrap himself in the Scientology flag.

Judge Olmedo: Defendant does not stand in the views of Scientology. Scientology is a separate entity and in a separate cause of action. This is, at its core, a rape case. Moreover, the proffered evidence admitted for the reasons previously stated in no way interferes with the defendant’s practice or beliefs of Scientology….

Nothing about the admission of Scientology evidence prohibits the defendant, as I said, from believing or practicing whichever aspect of Scientology he wishes to do so.

More importantly, as I already indicated, Scientology evidence is not being admitted for the truth of the matter asserted…The court has made clear the purposes for which Scientology is being admitted. Nowhere and at no time has the court indicated that Scientology is being admitted to evaluate the truth of its principles and the morality of its belief system…

In sum, the defendant lacks standing to raise a 1st Amendment claim on behalf of Scientology.

Wow, wow. She concluded with a few more details about specific evidence that might be admitted, then wrapped things up.

She asked the parties to be back in the courtroom at 10 am on Monday to discuss the jury questionnaire. Then she turned to Masterson, to order him to come to court the morning that jury selection begins on Tuesday.

Judge Olmedo: Mr. Masterson, you’re ordered back here Tuesday, the 11th, let’s say, nine o’clock in the morning.

Masterson: 9?

Judge Olmedo: 9.

It’s really here. More than five years after it all began, at least for all of us here at the Underground Bunker.

Whew.

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