THE JURY HAS THE CASE: Danny Masterson Re-Trial, Day 19, morning break

Morning session, Day 19 (Day 15 since testimony started), Danny Masterson retrial.

Much smaller crowd this morning after yesterday's full courtroom.

There's some consternation among the media folks this morning. The AP apparently said in a story yesterday that the jury was made up of seven men and five women, when we reported originally that it was the other way around, seven women and five men, and all original 12 jurors are still in place. (We've only lost a single alternate juror who left to be with his father in the hospital.)

So we're going to make a check today of the jury to confirm what the lineup is.

SARTORIAL SPLENDOR ALERT: Um, WOW. Defense attorney Philip Cohen has saved the best for last. His entry was so dramatic this morning, he actually got catcalls from some of the people in the courtroom. The man is dressed to kill today, no doubt. Did we miss the porkpie yesterday? Well we got it today, and its brim matches the metallic purple three-piece suit Cohen is showing off, a shimmering new number we haven't seen before, and with a white shirt, lavender tie and pink pocket square. He made an effort today people, he really did.

The Masterson section has more family friends today and fewer family members that we recognize: Bijou Phillips, and Alanna and Jordan Masterson.

Judge Olmedo is here, and checks to see if the attorneys are ready.

There was apparently a pool this morning, and Judge Olmedo points out that a DA investigator had predicted Cohen would be in purple today.

"Got a few catcalls this morning," Cohen says, proudly, and shows off his porkpie.

Judge Olmedo: "Just guessing here, did you go to school with a uniform when you were a kid?"

"No," Cohen says.

A woman arrives in the audience with her tiny Yorkie in tow. No one bats an eye.

The jury comes in. And yes, it's seven women and five men.

Continuing the final rebuttal for the government by Deputy DA Reinhold Mueller.

Mueller: Good morning everyone. (Good morning, from the jury.)

Yesterday Mr. Cohen spoke to you about inconsistent statements. First of all, whether it's KJ, JD1 or JD2, when you have someone taking a report, you have someone giving a summary of what that person told you. It's that person's interpretation of what they told them. So it's not going to be word for word. It's a summary of a report. So the general content, substance will be there and some details may not.

At some point, very soon, 12 of you will go into that jury room and begin your deliberations. You all have your notebooks. Chances are when you get back there, there will be things in your notes that you will question, and you will not have every word for word comments made by the witnesses. Your recollections might be different. Your summaries might be different. But that doesn't mean you're a liar. That doesn't mean you weren't here to hear this testimony, or that that testimony did not occur.

It's just the nature of taking notes. The defense wants you to hold these victims to an unrealistic standard. And you understand this.

Also, it was interesting, Mr. Cohen yesterday said, you know I don’t want to say there's this grand conspiracy. I found that interesting, because he thought you might not like that characterization, because there is no evidence of a conspiracy at all.

But he tried to downplay it a bit, saying there might be version that are "tweaked or maneuvered." Don't be fooled. He wants you to believe there's a grand conspiracy. And if there is one, how does that happen?

Folks, each of these victims told their stories long before they spoke to one another. They each individually told someone what happened long before they knew about each other. So how is it possible that you have a conspiracy? And keep that in mind over and over as we talk about some of these things the defense brought up. The each disclosed what happened long before they spoke to each other or to law enforcement. There is no conspiracy.

If you believe that JD2's mom, Rachel S, Jordan Ladd and all of the other witnesses, if you believe them, that they have disclosed this long before ever talking to one another, then there is no "tweaking." We don't need the tweaking. He's guilty. If you believe them beyond a reasonable doubt.

Mr. Cohen on his poster board brought up this #224, circumstantial evidence, and said if you can draw two or more reasonable conclusions and one points to innocence and another to guilt, you must accept the one that points to innocence.

However, when considering circumstantial evidence you must accept only reasonable conclusions.

First of all, folks based on this evidence, there are not two reasonable conclusions. There is only one: That this defendant drugged and raped each of these victims. That's the reasonable conclusion. And that word up there [“REASONABLE” on display], I want you to keep that in mind. It's not reasonable that there was tweaking, it's not reasonable that there was a conspiracy -- the evidence doesn't support any of that. So when you get back in the jury room, you must reject that. And you're left with only one reasonable conclusion, that he drugged and raped these victims.

He brought up the toxicology expert and he challenged her experience. She is experienced. She's the top toxicologist in that unit, she's been in it for many years. She's trained in drug-facilitated sexual assaults. She knows what symptoms relate to a drugging. And she told you in each hypothetical I provided to her, that based on those symptoms, they are inconsistent with the amount of alcohol they had. They should not have been experiencing what they did from what they drank.

Something was in that drink. And you know what, you don't need the toxicologist to tell you that. You can use your common sense. Nothing says when you get in here you have to give up your common sense. Think about it, if you were on the street and four women came up to you, four women with no medical issues, and said this guy gave me a drink and twenty minutes later I was wrecked, I have never experienced such a reaction in my life, and certainly never with the amount of drink that I had. And you know what? Afterwards, while I was that way, this guy raped me.

You all, your commons sense would tell you, without a toxicology report, you'd say to yourself, girls you were drugged.

Now let's break it down a little bit. If that were one woman telling you that, you might think maybe that was an unusual circumstance, a one-off. Well if all four came to you and said they had medical conditions, they were sick, there might be another reason why they experienced these things.

But you don't have four women coming to you with another explanation. Healthy. Young. No medical problems. A small amount to drink, and within 30 minutes are absolutely wrecked. Unlike anything they experienced before. How do they explain that?

What is the reasonable explanation, and how many are there? There's only one — these women were drugged. And by the way, what happened after they were drugged? Did they sleep it off? No. What happened after they were drugged, they were raped, by this man over here [pointing]. They were raped.

Some of them waking up with vaginal pain, anal tear, bleeding. They were drugged and they were raped. That's the only reasonable conclusion.

Mr. Cohen mentioned some things about JD3 in her report with Det. Reyes that, if you look at the report there's no statement of penetration. There's a statement of "trying to have sex." First of all, that statement didn't come from JD3, it came from Det. Reyes. "So he was trying to have sex? Uh-huh." That's Reyes saying that, not JD3. And these women, they're not lawyers, they don't have jury instructions with them. What all of these women are doing is just responding to questions posed to them as best they can, as accurately as they can. They're not trained in this. For some of them it's the first time they have reported and they are nervous.

So in a first interview they are going to give you the general description of what happened. And unless the investigator drills down a little bit, those details are not going to come out yet. (Lists several questions an investigator might ask.)

When we're here in court, yeah, the questions get very specific. Now we're talking about elements. There's no thinking of elements when they are first being interviewed. But the substantive content of what happened is in those reports.

JD1, Mr. Cohen brought up again these two photos, she's supposed to have 10 out of 10 pain, why is she smiling? All I can say, it's a photo, it's her father's birthday, she can smile for a moment for a photo with 10 out of 10 pain. But what's interesting about this photo, both JD1 and cousin Rachel, they can see those photos. Who gave law enforcement photos? The two of them did. Now, if they were trying to hide something, why turn those photos over, if they tend to show only a minimal amount of bruising -- then why turn them over? They didn't have to, but they did.

I'll tell you what that's evidence of, it's evidence of integrity, not dishonesty. If it was dishonesty, they wouldn’t have provided them. By the way, Rachel also told you that when she was there to see JD1, what she personally observed was that those bruises were darker than what you see in these photos. That's not hard to understand. That was a snapshot, a moment in time.

JD2, Mr. Cohen mentioned this exchange they had after the rape, Mr. Masterson saying you're a passionate person and she said you are two, and at some time they JD2 or Mr. Masterson at some time didn't think this was a rape. First of all, it doesn't matter what JD2 thought of it or not. Because when you drug someone, you take away any consent. There is no consent for the act.

It's for you to determine that this was a rape. When she says she was processing it, that might have been happening, but that doesn’t take away the facts of what happened, and that's why you’re here to determine if this was rape.

Had Mr. Masterson called her and said yeah, let's date. And if they had even got married, had kids. That doesn't take away from the fact that she was drugged and raped. It doesn't matter.

Look at JD3, she was assaulted, she was raped. What did she do, she stayed in the relationship. Does that change what happened? No, it's a rape. And Dr. Ziv says that's not unusual. [A relationship] doesn't mean that they haven't been raped.

Mr. Cohen was bringing up JD2 and this moment when Masterson had brought her a towel to get cleaned up. And he said, if he was pretending to be a gentleman, might he have been a gentleman?

That is so insulting. I almost don't have words. When he, Mr. Masterson, offered to take JD1 upstairs to the bathroom because she wasn't feeling good. She couldn't see, was barely breathing, ready to vomit. Was he a gentleman when he said, I got this, my homie. Was he a gentleman when he took her upstairs, holding her head in the toilet while she's vomiting, taking her in a shower, telling her she's disgusting, then takes her into the bedroom and she wakes up to him penetrating her, was he a gentleman then?

When she tried to use a pillow in a desperate effort to get some distance from her and him, to push him back, all the while he's penetrating her, was he being a gentleman then?

When he pushed the pillow down on her so she passed out, was he being a gentleman then?

When he pins her hands above her head with one hand uses the other to grab her throat, was he being a gentleman then?

What about JD3? In November 2001. When she's home, she's tired, she falls asleep. she wakes up to him penetrating her. She tries to get him off, no I don't want to have sex. He continues, she’s having pain, her body was not prepared for that penetration. It was painful. And boy, that's quite a description, that's quite a detail for someone to say who's just making this up.

When she had to forcefully grab his hair to get him off, and what does she get return? She gets hit in the face. Was he being a gentleman then?

What about when he finally got off and spit on her and called her white trash, like he had many times. And when he pulled her hair when she was naked and pulled her across the hall and slammed the door on her because she wouldn't have sex with him? Was he being a gentleman then?

You know, from this evidence, it is absolutely obvious and beyond a reasonable doubt that this man drugged these women and he raped them. And he did it to take away their choice. When he takes away their choice, it gives him the opportunity to do what he wants. If he wants anal sex, he'll have it. And that's what he did, in each of these cases.

By the way, this is not like a spur of the moment thing. It's not like he's suddenly in this situation. And they're no, no, no, and he's like, I'm just going to finish anyway. No, this is a plan. It's a plan. He had a plan for each one of them. He had to get the drugs, right? He had to think of the way to administer those drugs. He had to put the drug in the drink. He had to get that drink to them. He had to insist that they finish it.

And ladies and gentlemen, in all that time, there was an opportunity for him to recognize what he's doing. Each one of those moments I just told you about was an opportunity for him to say no, I am not going to do this, this is not right (Obj, admonishment to jury: what attorneys say is not evidence.)

It was an opportunity each time for him to stop it, to recognize the wrongfulness of it, but he went forward with his plan. This was a series of choices, ladies and gentleman, and when each of these victims came to him, when JD2 came to the house, there was a plan for her. That she was going to get drugged, that she was going to get raped -- there was a plan.

When JD1 got to the house and she had to stay over, there was a plan. She was going to get a drink, she's going to be drugged, she's going to get sick, and he's going to rape her.

With JD3 when they went out to dinner at La Poubelle and there was that glass of wine. There was a plan. She was going to get drugged and she was going to get raped.

He made this choice ahead of time, and he followed through with all of that. Think about it, the steps involved.

There was a fork in the road. You put the drug in the drink, that's a fork in the road. You think, am I actually going to hand this to this person. As you hand it to them and see them put it to their lip, there's another fork in the road.

You recognize the wrongfulness of it. You could put a stop to it. But he didn't. There's a series of choices and he decides to go all the way -- I’m going to drug them, and I'm going to rape them.

You know what, it is time to hold Mr. Masterson accountable for what he's done. In a moment you will all have this case. It's going to now essentially be turned over to you. It's coming from us to you. We've handled it up to this point and it's now going to be yours to deliberate.

And you know, it's never easy but it's important. And there may be some of you might think, well you know, it's been a long time ago since this happened, does this really matter at this point?

The answer is yes, absolutely it matters. It doesn’t matter how long it's been. What matters is justice. What matters is consequences for actions.

These victims who have come up here to testify, they have had challenges just getting here. It's never easy for a sexual assault victim to have to disclose some violent things happening to their body, to strangers, it's hard. And they have to answer the most detailed, intimate questions. It's hard.

They reported their incidents to Scientology, and what happened? They were punished for it. They were told it's their fault. You pulled it in. You must have done something to cause this to happen.

When they finally learned they were not aloe, that was very impactful for them. It's a moment that changed everything. For JD3 in particular. When she said she found out there are others after her -- one before, others after her -- she felt that guilt, that responsibility. Why hadn't I come forward sooner? Maybe there might not be other victims. That was a big change for her. It was significant for all of them.

Because they weren't just raped, they were drugged and raped by the same man.

Nobody signs up to come hear and tell the world they've been raped. Nobody signs up for that. And especially if you have a billion-dollar organization retaliating against you for doing so.

To suggest as the defense has that there are some ulterior motives other than these victims seeking justice, you know what, it's just further blaming of these victims. Because there's no evidence, at all, to suggest that there's any other motive than to seek justice. (Obj, overruled).

They were raped, they were punished for it, and they were retaliated against. Scientology told them there's no justice for them.

You have the opportunity show them there is justice for them. It does exist.

There were no consequences for Mr. Masterson from this internal church justice. You have the opportunity to show that there are consequences for his actions, they do exist.

Not about women seeking money. They came here to be heard. They sacrificed their dignity, their privacy, and their peace for that prospect, of having their voices heard.

And I'm hoping you have heard their voices. And they're hoping that their voices will be enough for justice.

Based on the evidence in the case, I ask that you give these victims the justice they are looking for, that you find this defendant guilty of the charges of raping each of these victims. Find him guilty and give them their justice. There is only one verdict in this case, and it is guilty. Thank you.

Judge Olmedo: One more instruction: When you go to the jury room, you should choose a jury foreman. You should try to agree on a verdict if you can. Only after you have discussed the evidence with the other jurors. Keep an open mind... stating your opinions too strongly may interfere with others... Cautions them about acting as an advocate for either side. And repeats the admnition about not discussing the case except in the jury room.

Now she's describing exhibits, and how they can communicate with her, ask questions, etc.

You must reach your verdict without any consideration for punishment.

Now going over verdict forms.

Bailiff now taking his oath to take charge of the jury.

Judge: Will our 12 sitting jurors take your notebooks and go into the jury room, and will our alternates remain seated for one moment?

The seven alternates are told they will be going to a separate jury room. She asks them to go into the hallway temporarily. All jury is now out.

Cohen: Obviously the court is aware of what the charges are and what they are not. In Ms. Anson's opening close, she said that they were drugged, they were raped. I objected when that was raised. Mr. Mueller then spent virtually the entirety of his rebuttal arguing that the Jane Does were raped, and numerous mentions of drugging.

Drugging does not constitute forcible rape. I have objected a number of times. What I see this as a sort of reverse jury nullification. The government's primary focus, there was nary a mention of force. In fact, the La Poubelle incident was raised, even though it isn't charged.

Number one, there is a motion for a mistrial. I don't know why that argument was made. It's contrary to the charges in the case. I don't know how it's remedied. In the alternative I would ask of one or two things -- a sur-rebuttal, to make it clear what the charges are, the elements. In the alternative to that, I would ask for a special jury instruction, when the government takes the overt steps in this case to make the charges something that it is not. So, mistrial, sur-rebuttal, special jury instructions. That rape by drugs is not the charge in this case.

Judge: People?

Mueller: I do not agree with what Mr. Cohen has put forth. I think that these jurors are clear of the charges, I don't see this as any kind of jury nullification. They are aware of the law. And my argument was based on the claims in his closing argument.

Cohen: I don't think it was based on my argument at all. I went through the force arguments. I said that drugging was not the charge in this case. And I guess the response is yeah, wink wink, it’s not about drugging, but here is argument about drugging.

Judge Olmedo: Looking at the court's ruling of March 28, 2023, that the government can make the argument the victims were drugged, what you are arguing that it's one or the other, either rape by drugging or rape by force. But to read from my order… (reads from order, court admits evidence of drugging)

(From the ruling, she made the point that as long as the defense is making arguments based on what the women could and couldn't remember, then the evidence of drugging can come in. And she made the ruling that the drugging can be involved in the force. And more about how drugging can be involved in the question of consent.)

She says it's detailed in jury instructions what the law is. And she points out that she didn't interrupt Cohen during his argument but she did during Mueller’s presentation to admonish the jury about being arbiters of fact.

She denies a mistrial and the other requests.

She asks the attorneys if, in the case of a jury asking for a readback, whether they want it in open court. Cohen asks if that can be something they can determine for each request. She says yes.

She tells Masterson that during deliberations he needs to be in the building, but he doesn’t have to be in the courtroom. The lawyers can leave the building.

The jury has the case.

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