Late morning session, Day 11 (Day 7 of testimony), Danny Masterson retrial
Jeffrey Augustine has joined the audience.
Cohen: We have an issue to take up.
Judge: OK.
Cohen: The first time I heard anything about Vicki Podberesky by the DA's office was yesterday.
Judge: (Juror 49 in seat 15 does need to go to the hospital. Both sides excuse him.)
Cohen: Yesterday first heard about Podberesky from Ms. Anson and Mr. Mueller, and I was told about the hair flipping. That's why I asked when JD1 told them. Because I don't think we or the court were told about it even though she had said something Friday. I asked Ms. Anson yesterday to please put together a report. I was very surprised to hear from JD1 that they heard about it on Friday. I conferred with Ms. Anson. On Friday JD1 said to Ms. Anson, I don't want Vicki here. No other mention of her conduct. Then on Monday she testifies. I think that's very relevant, because the way she gets rid of her, on Friday, is what she said on Monday. So I would like a report prepared, I don't want to make Ms. Anson or Mr. Mueller a witness, and I would like a stipulation is that the only thing JD1 said on Friday was that she did not want Vicki here.
Judge: We'll break for lunch early and take care of this then. I don't know any law of the government to do a written report, I'm not ordering them to do a written report, if you know any law that says that show it to me and I will reconsider. When I said I would allow the testimony about Ms. Podberesky, I was not excluding her. She can come to court if she wants to.
Cohen: I didn't say that. I never said the court excluded her.
Judge Olmedo said they'll take up Ms. Anson's response when they break a little early for lunch.
Jury comes in. She informs them that Juror 49 in Seat 15 has been excused
Continuing the cross-examination of Jane Doe 1.
Cohen: Sticking with Sept 2002, would it be fair to say the level of drunkenness was consistent with the amount of alcohol you had drunk.
Jane Doe 1: I feel that way.
When you get into Danny's room, the two of you started kissing in the bed?
Somewhere in that area.
Do you realize what's going on?
That we're kissing.
When the two of you start having vaginal intercourse, do you realize what's going on?
At times.
Do you mean you didn't know what was going on?
At times I didn't know it was him.
Didn't now it was him? Would you say at times you were "out of it."
I knew it was happening, I was confused. At times I would see his face, and that's when I would say these stupid things.
When you talked with Mueller in 2017, I understood what was going on?
I don’t recall saying that, but it would be accurate.
Would it help to refresh...
The only reason I'm saying no is that I agree with what I would have said. It's accurate.
So you did tell Mueller that in Sept 2002 during intercourse that you understood what was going on?
I don't have a memory of myself saying those words, but that's accurate.
Would it help to refresh...
You can try. I think I'll feel the same.
(Brings her a transcript.) Does that help refresh your recollection?
It doesn't. I think you’re portraying it accurately.
Did you tell Mueller that you understood what was going on?
I'm confident I did.
Was that a true statement?
That's a true statement.
Did you also say that at no time were you "out of it."
I think I have a hard time with that question without clarifying it.
You're indicating you read where DA Mueller asked if you were out of it.
I said I wasn't unconscious, not that I wasn't out of it.
So at no point Sept 2002 do you go unconscious.
No that's not true. I fell asleep. Is unconscious the same as asleep? I at times fell asleep, but I was not unconscious.
So at no point in Sept 2002 were you unconscious with Masterson?
Correct.
And at all times you knew and understood what was happening.
I knew the activity that was occurring on my body.
When you spoke to Officer Schlagel, June 6, 2004. You recall that conversation?
Parts of it.
Some parts you do and some you don't?
It was a conversation interrupted many times, but I recall some of it.
And some you don’t?
That's accurate.
And that's not because you were drinking, that's just based on your memory?
Yes.
Did you make any claim to Schlagel that you had been drugged?
Not that I recall.
Is that now your position?
I have no reason to believe that. I was drunk.
You said the second drink was bitter? Had you ever described it as bitter before?
I've probably been interviewed for a 100-some hours, I couldn’t be sure.
Anyone tell you that you used the word bitter?
No.
You don't know if the first time you used that word was yesterday in court?
I don't recall.
After the Sept 2002, you said you had a lot of pain in your anus.
Yeah.
You described it as an injury to your anus?
I don't know if I said that in court, but it was really injured and I was in a lot of pain.
I think you mentioned there was some kind of oozing.
There was like a diarrhea.
And you had gone to see a doctor.
I did.
Because of any injury to your anus?
No.
Do you have any medical records from your visit in 2002?
Yes. I have provided the information from my doctor to (defense and DA attorneys).
Did you tell Det Myers you had gone to a doctor for any pain regarding your anus?
I don't have a recollection.
Do you remember what you told her why you went to a doctor?
I don't have much memory of that conversation.
Did you tell Det Myers you saw a doctor for a spasm in your belly?
I don't remember saying that.
And for an STD check?
I don't recall saying that.
Would that be something you would typically is to see a doctor if you're having some kind of pain or medical situation? (Obj, narrow question) If you have a medical condition in 2002, you go to see a doctor? (Overbroad) Did you have any hesitation about seeing a doctor in 2002?
Yes.
Did you see a doctor in 2002?
I did.
The first person you told about the sex or interaction with Masterson in Sept 2002 was Annie, is that right?
I don't know anyone named Annie.
Was there a friend who picked you up in 2002?
Vanessa
Is the first person you told about the interaction Vanessa?
Yes.
You had a discussion with Paige Dorian about it?
That's correct.
Did you tell her that Masterson had raped you?
Absolutely not.
When Masterson's penis touched your anus, did he immediately apologize?
No.
Did you tell Det Myers he apologized?
No.
That interaction in 2002 led to some problems was the friends circles?
I think I said camps.
And so there was some tension that you felt, stemming from this interaction?
I think I would say pressure.
And it was uncomfortable.
For whom?
For you?
That's not how I would describe it.
I mentioned the word friends circle. You and Danny had mutual friends.
Yes.
And some that were not Scientologists?
I can't think of one.
When you interviewed with Det Myers, did you and Danny have mutual friends that were not Scientologists?
No.
And following Sept 2002, you said you did not think Danny was "safe" anymore.
Correct.
Would it be fair you did not feel comfortable being around him after that Sept 2002 incident.
I don't mean to nitpick, but I would be more specific.
Post-2002 sex, you believed it would be potentially dangerous for you to be around Danny?
Safe is the word.
So it would be un-safe.
But I'm using unsafe different than dangerous.
Would it make you feel uncomfortable around him after that incident? (Obj, sustained) Did you take steps to avoid him?
Yes.
You said Danny called you and said he had, "got his motivator:
Yes
When?
Two weeks. Could have been a month.
You remember him telling you that he had gotten his motivator.
That was something he often used.
And you connected his motivator with what he did to you in Sept 2002.
I don't understand.
Is it your position he said, "I fell on this rock, it went up my butt, I got my motivator."
That he had to sit on a donut that the rock had damaged his anus.
Did you tell Det Myers that you had heard Danny fell on a rock. And that you had called Danny.
No.
When you told Det Myers about your call, did you mention to her anything about "motivator."
I don't know.
Would it help to refresh...
(Brings her Myers report) Does that refresh your recollection?
It does not say "motivator" in here.
My question is does it refresh your recollection of that conversation.
No.
After some months, following sept 2002, you and Danny start, I won't say hanging out, but you're more comfortable to be around..
I made an effort to be.
In spite of that, you still considered him unsafe?
I never felt safe, just he and I.
In April of 2003, you talked about you and a slew of people went out on a Thursday night, April 24, your intent was to wake up very early in the morning on Friday.
Correct.
We talked about tolerance of alcohol in Sept 2002, would it be fair to say you still had a low tolerance in April 2003? (Obj, overruled)
Not anywhere like September. I had now had drinks.
So just to be clear, after September you start drinking more and more.
it's not like that.
If our tolerance was better in April 2003 than Sept 2002, how did it get better?
Well, I no longer was abstaining for nine months at a time. I regularly had drinks after that.
Given what happened in 2002, did you have any concern about drinking?
Not when I was with people I felt safe around.
Knowing yourself, do you think at times you may underestimate how much you've had to drink?
No, I don't have a reason to think that.
You went into detail about this "key" issue... You went to Danny's house looking for, or as part of getting these keys.
That's where it led us. We were supposed to get the keys way earlier.
So it wasn't your idea to go there?
No.
Weren't you uncomfortable being around him?
I wasn't scared of his house with people around. (She describes saying in a house with Masterson's family when they got snowed in. [Utah?])
When you talked to Ofc Schlagel on June 6, 2004, Did you make any mention to him about having to go to Danny's house surrounding this whole key issue? Did you tell him I went there to pick up keys.
I probably did say that because that's why I ended up there.
Did you make any mention to Schlagel about keys.
I feel strongly that I would have?
Did you tell him that you decided to go to party or get-together at Danny's house?
Those aren't the words I used.
When you got to Danny's house, you saw that he was there.
Correct.
And you have interaction with him
Correct.
At that point did you feel any sense of not being unsafe being in a house nearby to Danny?
I had zero fear of anything.
You indicated that at some point you were on a porch with Luke talking.
Correct.
When you say porch, (shows photo) are you talking about this area?
Yes, at the top of the steps. (She uses a pointer to show where the landing or porch was.)
When you were speaking to Luke before you spoke to Danny, is that the porch.
Yes.
You're talking to Luke on the porch and Danny comes out and says, "What are you drinking."
Yes, almost exactly.
About 2 in the morning.
No, earlier. 1:15 to 1:30.
Do you remember Det Reyes that you had gotten to the house about 2 am.
I might have said 2 am.
And then you're talking to Luke for some time?
Correct.
And then more time passes before Danny comes out to offer you a drink.
Correct.
And your response was vodka something?
Correct.
It's at last 2:30 to 2:45 at this time?
No.
You're supposed to get up at 5. You were supposed to be taking Brie at the airport at 5.
I said we had to be up at 5 to go to the airport. I was expecting to be at my parents at 7;30
Why are you drinking at 2:30 if you're taking Brie at 5?
I wasn't. Best of my recollection, I got there about 1:30, within a few minutes, I saw them speaking, she came out (Jenni), she left after conversing with Luke, a few more minutes go by and then he comes out and asks what are you drinking, I'm estimating about 1:45.
Would it help to see what you told Det Reyes about this porch?
When I said "about 2 am."
Then it's after 2 am when Danny comes out and asks what are you drinking?
No.
If you had to get up really early in the morning, why did you take a drink
So I could go to sleep. It was really loud. I had to lay down in the guest room, I wanted to relax. I didn't plan to finish it. I'm a sipper. Also he puts a lot of pressure on me.
Judge Olmedo says we're going to break early, also the jury will be provided lunch in the jury room.
Jury goes out. Jane Doe 1 goes to the hallway.
Judge Olmedo: Mr. Cohen had indicated his concern, I'll let Ms. Anson respond.
Anson: Friday, after lunchtime, I observed Vicki P in the audience up to lunch. When I went out to the hallway she was way down the hallway near JD1, JD1 said why is she here, I don't want her in the hallway. I realized she wasn't coming back and I said let's go back inside. That was the extent of our conversation. She did not indicate to me anything about the hair flip. It was later that I heard about that. And we provided that information yesterday.
And what is your position on a written report.
What I was told on Friday is what I'm putting on the record now.
Judge: So it's not your intention to put something in writing.
Cohen: Given what I think is an important issue, I don't want to misspeak. It would be very helpful for me in examining JD1 to have a report to work off.
Judge: Dailies are provided, so the judge will ask the court reporter to provide print out what was said yesterday, and later tonight what was said today.
Cohen: I appreciate that. I would query of Ms. Anson whether there was any mention made to the DA support person on Friday about any type of eye-roll, stare, whatever it was. I think it's part of the DA's office and discoverable.
Anson: Mr. Cohen asked me to inquire of the victim advocate during the break. She said that Ms. Podberesky was mentioned, but not the hair flip or eye-roll.
Judge Olmedo says the two sides can work out a stipulation (rather than call Ms. Anson as a witness).
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I wonder why her medical records were not subpoenaed. It would have been the logical thing to do.