Morning session, Day 17 (Day 13 of testimony) Danny Masterson retrial
Your proprietor has delivered copies of Scott Pilutik's letter to Judge Olmedo (through her clerk) and the four principal attorneys for the defense and prosecution.
SARTORIAL SPLENDOR ALERT: Oh, joyous day! Defense attorney Philip Cohen is replendant in a coral three-piece suit that really only he could pull off. It's set off by silver-grey shoes and a tie that one court observer tells us is a "kaleidoscope of jewel tones."
We're on the record.
Judge: We're going to deal with the tweets first. But we can deal with it when we deal with exhibits.
Cohen: It might come up in our case. Are the people going to rest?
Judge: We still have some other issues to deal with. Have the two parties worked out a stipulation regarding the article?
Cohen says no, they haven't worked it out.
Judge: People?
Mueller: We've gone through the article and we have provided a redacted version that contains items we can stipulate to, but the defense doesn't agree.
Judge: I do have a letter I received from Mr. Ortega's attorney, Mr. Scott Pilutik. According to California law, reporters are entitled to five day's notice. So if the two sides can't work this out we'll recess until Wednesday and push back arguments and everything else. (She says the California Constitution is very clear about the rights reporters have to that process.)
I will tell you, Mr. Ortega, the case law refers to unpublished material, not published material, so have your attorney address that.
She then again tells the two sides to work something out or we're going to have to delay things until next week.
Judge: The article says what it says, the witness says what she did, and this seems like a very simple matter to resolve.
Again, she says she will recess the trial until late next week if they don't come up with a stipulation.
She says she's going to give the two parties time to work something out, and she leaves the courtroom.
The four attorneys huddle.
Judge Olmedo is back after several minutes. We're back on the record.
Cohen: We're ready on the stipulation we were talking about. He reads it aloud: On Oct 17, 2021 Kathleen J made the following statements to Mr. Ortega in a published article: 1. She remembered it was Masterson who chatted her up and offered her a drink and the next thing she remembered was waking up in a hotel room in terrible pain. 2. When her husband asked her why, she broke down, couldn't bring herself to tell him, but did years later. 3. She said perhaps Masterson and others raped her. 4. That she stated Gerard Butler and others invited her up to his suite.
Judge: Any reason to call Kathleen J back?
Cohen: No.
Judge: Next witness?
Anson: No other witnesses. But we have the stipulation for the gun.
Judge: And for the defense?
Cohen: Could I have a few more minutes to talk to Ms. Anson and Mr. Mueller about another stipulation?
Judge: Yes. (She then tells Masterson that before the defense case begins, she will formally ask him if he will be testifying.) How much time do you need?
Cohen: If you could give us to 9:15, it would save us a lot time.
Judge asks about an attorney in the audience, Dominic, who is a Marsy's Law lawyer for the victims, we think. We're not sure what involvement he's going to have today.
Another sidebar.
The Marsy's Law attorney Dominic is apparently here to put something on the record regarding the leak of discovery materials we reported on Wednesday. So we'll be interested to see what that is. Judge Olmedo tells him that they will get to that at some point today.
Now, something else...
Judge: Back on the record. There's a man in the front row that Mr. Masterson feels was staring at him inappropriately. Mr. Masterson, the man can remain as long as he abides by the rules of the courtroom. With that said, she admonishes the person (describes him), and instructs not to stare at Mr. Masterson...
Man: I can't help how he feels.
Judge: I understand but you can't give hard glares non-stop. She tells him to keep a poker face. I was notified that you are the husband of one of the victims.
(The man is in the DA's row next to the Marsy's Law attorney.)
Cohen: Wants to add that the bailiff had noticed the stares.
Judge asks her bailiff if that's true, and he says yes.
After a few minutes, the man in the front row leaves with the Marsy's Law attorney.
Judge: Back on the record. So, Mr. Masterson we should be getting to the defense portion this morning. You have an absolute right to remain silent, and an absolute right to testify on your own behalf.
She asks if she's talked to his attorneys about it.
Masterson: Yes, your honor.
And you've come to a decision?
Yes, your honor.
And what is that decision?
Not to testify.
She then quizzes him and Cohen to make sure that he has made this decision on his own.
She says the People will rest, and then moving into defense. Calling any witnesses?
Cohen: No. But the two stipulations are about the gun and the statements to Mr. Ortega.
Judge: You can read the stipulations.
Cohen: So then the defense case will be me reading that stipulation and then we'll rest
Judge: So we will give the jury Monday off and then closing arguments will be Tuesday and will maybe go into the next day?
Cohen: I would hope we could get them done in a day.
She asks them to please share with each other your charts, etc.
She tells Dominic that she notices the man has left and she wants to make it clear that she did not exclude him. Dominic says he understands that.
Bringing the jury in.
Judge: Thank you for your patience. The attorneys have been hammering out some stipulations. We will go through this morning and you will get more clarification on how this case will proceed from this point forward.
Anson: It is stipulated on April 25, 2003, Mr. Masterson owned a registered firearm.
Mueller: Subject to exhibits being received into evidence, the prosecution is resting its case.
Judge: Mr. Cohen?
Cohen reads the stipulation about the Kathleen J article, and then the defense rests.
Reminded by Shawn Holley, the Judge also tells the jury that the statistics about false reporting in Dr. Ziv's testimony is being stricken.
Judge Olmedo now explains that she is going to let jury go early today, and that they will have Monday off, and they will be back Tuesday at 9 am for jury instruction and arguments then.
The jury leaves.
She asks the attorneys if they want to jury instructions and exhibits this afternoon or on Monday.
Cohen: Same jury instructions as last time? Judge Olmedo says yes.
She says they need to go over a number of exhibits, and it will take longer than jury instructions.
Judge now asks Marsy's Law attorney Dominick.
For JD1: As the court is aware there was a leak of the DA's material in this case. This leak is a clear violation of Marsy's Law. Throughout this trial, JD1 has said multiple times
This leak puts her and her family at risk. That Scientology has documents it is not entitled to.
This is further evidence of tactics that Scientology will go to.
Asks for preservation of evidence of Podberesky and defense counsel.
[We had a hard time keeping up with Dominick, who spoke quickly, but we’ve requested a copy of the statement and we expect to receive it soon.]
Holley: We stand by our position that we have not provided the information
Judge: We meaning you and Mr. Cohen.
Holley: Also that there was no protective order in place, and that Mr. Mesereau asked for an order and the DA didn't agree to one. Nothing untoward has occurred, and Ms. Podberesky is willing to come to court to say so.
Judge: Did Ms Podberesky tell you how she came into possession of the discovery?
Holley suggested that it may have been disclosed in a civil proceeding. There's no leak, nothing nefarious as far as we have been able to tell.
Mueller: We'd like to reserve statements at this time. It’s very troubling that in the midst of this trial that the People's redacted discovery, a large portion of it is turned over to Ms. Podberesky or anyone else representing the Church of Scientology and ends up talking to Chief Michael Moore with certain requests regarding witnesses in this case. I just find that to be a violation for a number of grounds.
Holley: I don't think anything was turned over during trial. I think if anything was turned over it was before trial. And it was redacted.
Mueller: One of the letters from Ms. Podberesky she indicates documents of the People's records were recently obtained by Ms. Podberesky were "recently obtained." I don't know what that means, but it's troubling.
Judge: The court did issue a protective order. The court will issue a preservation order, (she asks Dominic to prepare one to sign.)
It is an interesting issue. The discovery provided was solely in a criminal case... The law is there to protect victims and witnesses. She's citing more law. With that said the right for the accused to obtain discovery is not absolute and the court has wide latitude to govern it.
With that said, the CA Constitution under Marsy's Law does hold (that the court can protect a victim from harassment through the criminal justice process.)
She refers to private messages, texts. The court has been going through days of subpoenas from the defense asking for private communications and the court found the defense wasn't entitled to them. The defense couldn't overcome that. To the extent that there might have been that material, that does cause the court concern. But I'm not aware what happens if a party in a criminal action under a criminal statute weighing a criminal defendant's right to a fair trial, against the privacy interests of victims and witnesses...
It's a very different discovery process than in civil. I appreciate that there was no protective order, but I don't think that presumes there was no violation.
Be that as it may, not going to address that issue today. She will look into her jurisdiction on it. The people ssaid they were making a referral to law enforceemtn?
Mueller: We're still assessing that, moving forward.
Judge: Will there be referrals to the state bar? Not prepared to say that yet?
Mueller: Correct.
Holley: Ms. Podberesky willing to come, is there a day she could come to address this?
Judge: The People are still assessing what they are going to do. And she makes it plain she's not saying anything about the attorneys currently before the court. Talking about going through the material still. She's going to give the DA some time to go do that. But right now they have a lot of work to get ready for closing arguments. So it will be after they get the case to the jury. I suspect that this will be a much bigger issue in the civil case than here in the criminal case. What the disclosure may mean for attorneys in the civil case, but that is not my concern. We will go forward here, and after we get the case to the jury we can look more into these issues. But right now there is nothing before this court regarding the attorneys before this court or Mr. Masterson had anything to do with this disclosure.
She asks them to come back at 1:30 to work on jury instructions.
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I don’t want to get too encouraged here, but I sure hope scientology overplayed their hand so far that the jury can’t help but notice.
My husband, who really doesn’t know much about scientology or what I did while in has a peripheral interest in this trial. We are traveling right now and I’ve told him about the leak and the subpoena in tel time. His response? “Harassing little sons of bitches aren’t they.” Yup. Scientology in one brief sentence.
Masterson doesn’t dare get on the stand. From my observation Hubbard talked about courage and yet he was a devout coward. Scientology cultivates fear not bravery. Miscavige only increased the fear factor. And since the fish stinks from the head no wonder Scientologists are so craven. Danny, abusing people weaker than you is over. Let’s see where your karma leads.