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SCIENTOLOGIST DECLARED HOSTILE WITNESS: Danny Masterson Trial, Day 9, lunch break
[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.]
Jury not in yet, after the morning break.
Cohen: Defense PI. Mueller and Anson aware of it last week. Mr. Mueller appeared to me to act very surprised in body language and his question. One, he wasn't surprised, and that there is something untoward about an investigator talking to him was palpable. He then made a comment that because he didn't have a report...
Olmedo: I struck it immediately even before he finished the question.
Cohen: Mr. Fabos is not on our witness list. To give this, between feigning of surprise and inappropriate comment, "I don't have a report," makes it even more alarming. The clear inference is now that the defense has done something untoward and violated some procedure, when none of that is correct. I don't know why that came out. Mr. Mueller clearly thinks about his questsions and why we have to deal with that.
Olmedo: The court did strike down any gestures were not relevant, and as soon as he said he didn't have a report. I think the inference, I understand your point, but it's not htat the defense did something unseemly, but that the witness, a Scientologist, may be changing his testimony. I have witnesses who change their answers. From the court's perspective nothing unseemly from the investigator, but the witness giving certain renditions at certain times. Mr. Mueller I'm going to admonish you about making hand gestures (He snapped his fingers.
Mueller: I was actually very surprised, today, when I learned Mr Fabos had contact with investigator in the hallway> I had no idea. What I understood wsa tht he had previuosly been contacted by the PI. So when he said it was in the hall, that was a genuine surprise. Especially when we had him in our office at noon going through the audio recording. And then in the afternoon he's in the hallway talkign to a PI. That was brand new information.
Goldstein: Ms. Anson and I discussed this in the courtroom. We discussed, and I belive Muelelr was at the table, the conversation with the defense PI.
Anson: I am aware that happene between lunch and when we had the interview with Fabos, but Mr. Mueller was not aware of that and I did not have a specific conv with him about that.
Cohen: The DA's office is considered one office.
Olmedo: What do you want/
Cohen: I want a mistrial. I think from jury voir dire up, to now point the finger at the defens when the defense credibility is everyhthing, I don't take that lightly. If hte mistrial is denied, two admonittions. There is nothing inappropriate about either side talking to a witness whether on the phone or in the hallway. Number two that neither side has any obligation to turn over statements of witnesses they are not calling. There are certain things to take out of a juror's mind.
Olmedo: I understand your concern. I don't take this as much of a signifcant concern as the defense, I do think the concern is more about the witness than the investigator. I will deny the motion for a mistrial, but I think both parties need to talk each other. Three, finding Mr. Fabos is a hostile witness at this point and you can lead him on questions.
Shaun Fabos comes back in, sits at the stand. Goldstein prepares to cross-examine him.
Goldstein: What I'll distinguish is the coffee conversation (2003) and the recorded conversation (2017). During the coffee conversation, what it regards is a drink, jacuzzi and waking up in bed.
Yes, but I don't remember the jacuzzi portion, back then.
It's been a long time.
Yes, it has.
Something strange is one of the things, or weird.
Pertaining to drinking and waking up in bed.
She never said she woke up next to Mr. Masterson.
Not that I recall.
And she didn't say they talked about what happened?
And she didn't mention a gun?
And she said something like, I never would have done that, he's such a dork?
Sometthing like that.
So she was displeased because he was a dork.
Yes, there was a mention of that. She didn't particularly like him.
She wasn't pleased about waking up in his bed.
Now you don't remember if the coffee converstaion was just before or after the Florida trip.
And later she said that didn't happen.
She said something like she made it up. In a phone conversation a few days after the coffee conversation.
Is it fair today you don't know if she made it up, or if it was truthful?
That is correct.
And she told you she was under a non-Enturb Order and that's why said she made it up
Turning to the 2017 recorded call. You didn't know you were being recorded.
I did not.
You only found out when you went to DA's office you were recorded.
And it was missing portions?
Yes. (Obj, stricken.)
You told the DA there seems to be things missing?
Yes I did.
You were asked a lot of questions about that interview with DA.
You spoke to them twice.
First time just listened to recording.
Not asked any questions.
(Goldstein goes very fast, tough to keep up.)
Goldstein: Second interview, was Thursday afternoon. Asked questions.
Yes, because I was asked in the hall.
Yes, in fact, you wanted both sides to have as much information as you had?
While you were in that DA interview, second one, did you feel that words were placed in your mouth at any time?
There was a moment about the plane time, what time, he threw an answer out and I said yeah. I just said the morning.
And at that point did your attorney object? (Obj, sustained)
Goldstein: Did you feel that the DA was trying to get you to say something?
I just thought it was strange because I thought I'd answered it. How could I remember 20 years ago what time the flight was. I was trying to be helpful.
And you provided a question and contineued questionsing and that was confusing for you?
Yes it was.
About this trip to Florida, has anyone asked you about it the last 20 years other than this question in the hallway?
Correct, only time I've been asked about it.
You went on two trips with them?
Parasailing with her daughter, that was memorable.
You were on the entire seven days.
About that, he says.
And you were there to care for her daughter.
That was my sole duty.
And you saw JD1 on that trip?
Yes, I did.
And the DA asked you about it, and you said it wasn't unusual not to be with JD1
That's true. I was off doing things with [the daughter].
And you remember spending time with JD1 and her cousing Rachel.
At the beach, drinking.
And there might have been other times but you just don't remember.
And you were subpoenaed the DA, not the defense.
In that 2017 recorded, I'd like to ask you about the discussion of bruises in that call.
As we heard in direct testimony, JD1 reminded you that she had burises all over her body in that 2017 call?
From the transcripts, yes, but it's ahrd for me to remember it.
But those are her words. She remineded you, "I had bruuises all over my body."
Did you ever see bruises on her body when you spent seven days in Clearwater?
Switching back to the coffee conversation, did JD1 show you bruises anywhere on her body?
Did you comment on bruises during that conversation?
And by the way, after the 2017 call, did you get a call from the press?
Yes, I did. It was a harassment call.
Was it your understanding JD1 had given your number to a reporter?
You were asked about your religion?
Has anybody from Scientology told you what to say?
Has anybody from Scientology told you what to remember?
REDIRECT from Mueller
Mueller: During the coffee conversation, what JD1 told you, drink, jacuzzi and waking up.
JD1 also told you there was foul play (asked and answered) When she told you that what she told you was not true, she clarified that right? (Asked and asnwered). She told you she had just made it up.
When JD1 told you why she made it up, she gave you reasons why she did?
When, the phone call?
Anytime. She told you why, you know why she made it up. (Obj sustained)
Olmedo calls for a sidebar.
Mueller continues redirect.
Mueller: JD1 said there were certain things that would happen to her if she continued to tell you, that she needed to stop talking about it.
From the recorded call, yes.
Not from the recorded call, but from your memory?
It's hard to remember. I heard it on the recording, I got that.
But you remember from the recorded call that you remember that.
From the transcript I read, yes.
You don't dispute that, do you?
In fact she told you that she would end up dead if she didn't stop talking about that.
From the trasncript yes.
And you don't dispute that.
You told JD1 at the coffee shop, "You knew I was ready to kill him, and you knew I would kill him."
Well, those are the words you used.
Yes, I did say that, if that had happened to anyone I knew that would upset me.
You never, after listening to that record, you never told anyone in our office that you remember going to that trip to Florida?
You never asked me.
You never told us. You never told anyone in the DA's office that you remember being on that Florida trip.
And yet in that recording there was a mention of that trip.
Is that a yes?
I'd have to see a transcript, I don't remember.
You knew this investigation was going on for several years.
You didn't know it was going on?
Other than when you subpoenaed me, no.
Did you have a conversation with JD1's father (Obj, sustained)
So you didn't know an investigation was going on (Asked and answered.)
Mueller: Did an attorney on your behalf speak to investigators on this case? (Obj, sustained)
Mueller: Did you ever convey to anyone to let law enforcement that you had nothing to add to this conversation.
My attorney made a statement for me. (Move to strike, sustained)
Were there ever any detectives in this case that left a busienss card at your home to contact them?
My attorney did.
But you did not?
That was done through your attorney?
No further questions.
RECROSS by Goldstein
Goldstein: Over the previous 18 years the DA's office never asked you if you went on this trip to Florida.
RE-REDIRECT by Mueller
Mueller: But you never independntly came forward to say that?
Shaun Fabos is done and leaves. Next witness.
Next witness is Rachel Dejneka. She's sworn in. Pronounced "Day-NAY-ka"
Questioned by Ariel Anson.
Anson: Shows photo of JD1. Do you know that person?
Who is that to you?
Are you older or younger?
Younger, by ten years.
Are you familiar with Church of Scientology?
Are you a member now?
Were you ever a member?
How do you feel about testifying today?
How was your relationship with JD1?
What do you mean.
We talk, not as often as before, but we have a relationship.
Stayed in contact over the years?
More before than later.
10, 20 years ago.
In April 2003 did you go on a trip with her to Clearwater?
A bunch of family members.
Not exactly sure, more than 10.
Were any non-members there.
I believe there were family friends. But mostly family.
Do you remember who they were?
I can't recall.
Were you going for a reason?
Any other reason?
Back in April 2003 were you living in Los Angeles?
Did you spend time with JD1 and her family?
Yes, we lived on the same property.
How did you get to Florida?
You flew with the family?
When you traveled to the airport and went with JD1, was there anything unusual?
She was covered up, with a scarf. Long sleeve shirt, pants.
Anything unusual going to the airport?
More quiet, less energetic. She was usually talking.
And on the plane, same thing?
I wasn't seated next to her, so I can't say anything to that.
When you went to Clearwater, where did you stay?
I believe we had a block reserved, the same section together.
What type of property.
It was C-shape property, a beachfront.
Did you stay in a hotel
About how long were you on this vacation.
I believe it was maybe five days.
While on the trip, did you get the chance to observe JD1's body that wasn't covered up.
And you could see it, was there anything unusual?
Where did you see bruises?
On her arms, and on her hip area. And she didn't come out during the day, but she came out at night and that's when I saw her.
How much time did you spend with her on that trip?
Quite a bit. Maybe forty, sixty percent.
And mostly in the evenings?
When you noticed these bruises, what was reaction?
What happened to you, did you fall? It was very apparent bruising?
And what was her demeanor when you asked this?
I think she was taken aback, sad, confused.
What about you observed about her tone of voice that made you feel that way?
She was very quiet. She's a very outgoing person, but she was, I want to say scared. She's a very stand-up person and the way she aws was very strange to me.
Did you ask her more than once how she got the bruises?
More than once.
Did she indicate where she got them and say something different, or was she consistent.
She was consistent.
What did she say.
She doesn't remember exactly how, but when she woke up from a moment in time, she noticed them.
What were the circumstances
I can't remember exactly, but she was on a couch or a bed and woken up.
What did she say about it?
She said she was in a jacuzzi and was handed a drink.
Did she indicate how many drinks she had.
She had been to a dinner with friends, and when she was at the jacuzzi she had one drink.
When did you have this conversation with JD1.
The night after after the incident. We had flown in that morning, and I didn't see her until the evening.
So she was telling you what happened the night before.
What did she say happen after the drink.
She becamse dizzy and wasn't feeling well.
Did she say whose house it was?
I can't be certain. She may have said a friend.
The bruises. When did you first notice them?
When we were hanging out by the pool. First time she was in a bathing suit.
And did the bruises change later?
Were the bruises noticeable on photographs you took of that trip?
[Photo of JD1 in bikini with waiter]
How do you recognize this?
I took it.
Are you able to observe the bruises you saw?
Can you describe wehre they are?
On her arms and on her hips. The pelvic area.
Did the bruises look different in person?
They looked darker in person.
[Second photo of JD1 and Rachel in bikinis]
Are there any bruises that you observe?
On one of the arms.
The one holding a cup.
Her right hand?
Does that accurately depict it?
In person it looked darker.
When JD1 was talking to you about the night before, did she say who she was with?
The defendant, and a couple of friends. Maybe a Brie?
When you say the defendant can you describe him?
Over here wearing a suit. (Olmedo: Indicating Mr. Masterson)
Did JD1 indicate to you whether the amount of alcohol was consistent with what she was feeling?
Inconsistent. She was dizzy and wasn't feeling well.
What was her demeanor when she was telling you this?
She seemed afraid, not herself. Not energetic. Concerned. I'd say scared. (Obj, speculation, latter part struck.)
Do you know Shaun Fabos?
How do you know him?
He's a family friend.
Do you remember him being on this trip?
No, he wasn't there. I don't believe he was there.
What was your memory of him?
Really great friend of [JD1]. He had gone on some trips to Florida, we took multiple trips. But I don't believe he was on that trip, that year.
After 2003 did you relationship with him change?
Him and I started hanging out I want to say eight years ago, within 10 years, and without JD1 hanging out with us. There was a time when there was a disconnect. But then we saw each other in a bar and started hanging out again.
And did that change?
And when the case had started up again, he said he wanted to talk to me in person. And when I was trying to coordinate that, he didnt' resopnd anymore.
Had you and Shaun Fabos been Facebook friends?
After he indicated he wanted to meet and then it didn't happen, did something happen to the Facebook friends?
Yes, he blocked me.
No further questions.
CROSS from Cohen.
Cohen: You indicated you used to be real close to JD1, about 10 to 20 years ago. From I take from that you're not close to her today?
We are not as close. We used have a lot omore family gatherisngs, and it wasn't until her parents moved out of LA that that dwindled. So I didn't have much interaction.
The fact that you were close 10 to 20 years ago, we shouldn't take from that that you don't still have a relationship. You love her very much?
Yes, of course.
Well, not of course, some family members don't.
I love her very much.
You understand that this trial means a lot to her.
After the trip to Florida and today, have you spoke with her about what happened?
And she indicated what her recollection was?
And she told you what she remembered telling you?
And she told you her recolections, like how she felt?
Like what she was wearing?
Could it be that your recollection of what in Florida in 2004, may have been impacted by what she recalled?
Sure. Is it your position that you have a clear, detailed, specific recollectin of what JD1 told you in 2003.
Detailed and clear, but I coudln't vocalize exactly what she said. I coudln't quote her.
I"m not talking about quoting. Is it your position you have a clear recollection of what happened.
JD1 has spoken with you since then.
And fairly recently.
When was the last time you spoke to her about Florida.
I can't recall, it's been multiple years.
How about 2017?
I can't remember the specific years.
You spoke to a detective in 2017.
I can't say the year, but I spoke to someone.
Det Vargas with LAPD.
Prior to speaking to Vargas, you spoke to JD1 about Florida?
I may have, yes. Yes.
In fact you spoke to JD1 on multiple occasions prior to speaking to Vargas.
And on those occasions, JD1 told you about what she recalled.
So 10, 20 years ago, your relationship with JD1 was as close if not closer than today, and that love existed.
You and she would do things togehter, laugh together.
How old were you then?
17 or 18
And she was 27.
And this was while JD1 was a Scientologist, and you were not?
And despite that you always found her to be candid with you?
The typical JD1 that you knew 10,20 years ago was very outgoing and energetic.
Liked to have fun.
You would see her doing those things.
You had mentioned that on the flight to Florida, JD1 seemed sullen?
Kind of quiet?
Did she seem hungover?
Had you seen her hungover before? (Obj, stricken)
You said she was covered up. That's unusual in LA in April.
It was late at night. It was cold.
Was that why she was covered up? It was cold, right?
It wasn't cold, cold. It wasn't hot. Our flight was in the vening.
Did you think she was wearing more clothes than usual.
She was covered with a scarf. Other people were wearing lighter clothes.
Did you ask JD1 why she was covered up?
Not on the flight. I wasn't sitting next to her.
Did you ask her on the plane why are you all covered up?
No I did not.
Since the plane flight, in other conversations, did you ask her why she was covered up?
She wanted to cover up bruises.
So JD1 told you she already had bruises?
When did she tell you the reason she was covered up, was becasue she had visible bruises?
She didn't tell me that she was wearing the clothign becasue of the buises. I asked her about them when I saw her that evening.
I asked you a little while ago, if you had ever asked her about why she was covered up on the plane. When did you ask her why she was covered up?
I didn't ask her why she was covered up.
So she volunteered it to you.
She was just covered up.
I unddrstand that. My quesiton is, when JD1 tell you that the reason she was covered up was for bruises?
I can't say for certain.
Give me an approximation.
A few days. I can't say for sure.
Give me a year.
So in 2003 JD1 she told you she covered up because on the plane she had visible bruises.
Yes, she had bruising and she chose to cover up.
That's what she told you?
No that's what I'm saying that.
Why are you saying that? (Lower tone of voice.) Where are you getting that inforamtion.
I saw her covered up. My question is, where do you get that part from?
She had bruising and she wanted to ocver up, she told me.
So my question, is when did she tell you that.
When we were at the pool.
So she told you then that that's why she covered up.
(Asked and answered, Judge Olmedo calls for a sidebar.)
Cohen: When you and JD1 got to Florida. Her appearance in term of mood continued to be sullen, quiet, sad.
She appeared to be in pain.
She was quiet.
I understand that. Did she appear to be in physical pain in Florida?
Did it appear that her level of discomfort, was it 10 out of 10?
Did she walk or move as if -- and I know this is going to sound like a strange question -- as if her vagina had been punched?
So she was sullen, but physically was normal for JD1.
Did she appear as if she wasn't really open to having fun.
She wasn't around family during the day, and in the evening that's when we spent her time.
When she wasn't around the family, you didn't know where she was.
I believe she was in her hotel room.
And why do you believe that?
Because she didn't want the family to see the bruising.
And how did you get your information? Did JD1 tell you that she was spending her days in the hotel?
Did you see her with shorts on over her swimsuit?
I believe she was sharing something to come to the pool, but she didn't just walk out with her bathing suit.
During the day?
I didn't see her much during the day.
So you didn't know what she was doing. I want to be fair to what you actually knew. You didn't know where she was.
Did you ever see her sullen before that trip?
So you had a scale to gauge her?
Did sullen look like [the photo of her in bikini with drink]?
Is any of your testimony being shaded or impacted by your relationship with JD1?
[Bringing up the blown up photos]
This is a picture you took, correct?
Right after this photo was taken, did JD1 go back to sullen?
We were talking.
Right after this photo did she go back to quiet, sullen JD1?
Second photo, is that you?
Is that quiet, sullen JD1?
When you spoke to Det Vargas in 2017, did you tell him that JD1 had bruises all over her body.
Not all over her body.
So you never made that statement?
I said I saw that she had bruises on her arms and hips and pelvic area.
When you spoke to Det Vargas, and let me be clear you spoke to JD1 and then to Det Vargas in 2017, did you tell him that she had bruises "all over her body" (Asked and answered.)
Cohen: Let's talk about the origin of these pictures.
Says he's going into a new area that will take longer than five minutes, so Judge Olmedo says it's time to take lunch break.
Jurors out. Cohen asks to approach. Sidebar.
Goldstein: Incredibly improper for the state to ask Fabos questions...
Olmedo: No 5th Amendment right for Mr. Fabos as a material witness in a criminal trial.
We are at recess.
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