WE LOSE A JUROR AS CROSS RESUMES: Danny Masterson Trial, Day 7, Morning break report

[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. We are reporting live from an ongoing trial and we do not have time to make such corrections.]

Morning session

We'll be continuing with cross-examination of Jane Doe 1 this morning by Danny Masterson's defense attorney, Philip Cohen, which began late yesterday afternoon.

Judge Olmedo arrives and calls the attorneys up to the bench.

Yesterday, Judge Olmedo told us that there would be an earthquake drill this morning. The clerk just told us that the plan is to take the morning break early, at 10:15, so we can go out in the hall and follow whatever the deputies instruct us to do.

She's handling another case briefly. Pending sentencing.

We're on the record. Jury isn't here.

Judge Olmedo: I did fashion a couple of admonitions after discussing with both parties. And both parties have made some stipulations.

Cohen: Based on testimony that came in yesterday from Jane Doe 1 about the specifics of the 2004 settlement agreement, I proposed this stipulation to the govt. 1. In 2004, JD1 retained a lawyer and sent a draft complaint seeking damages. 2. In 2004, and in response to draft complaint, JD1 and Masterson entered into a "confidential settlement and NDA." I think it gives a much more accurate, fair indication of what the document is. 3. Settlement indicates that JD1 and Masterson are represented by separate attorneys (Novek and Singer) and any potential breach would be resolved through arbitration. It's a true statement: binding arbitration through California arbitration program. I think the way the testimony came in yesterday, this is accurate and relevant given a fairer, unbiased, factual indication of what the document actually contains. Given the court's ruling that we're not going to get into specifics, and JD1 was admonished but chose to get into this, in all fairness, it requires a balancing in what I've proposed.

Mueller: The proposed stipulation, the only thing we agree on is the title. With regard to the phrasing that JD1 through her lawyer sent the draft complaint seeking monetary damages, is problematic. I don't think that's her testimony. She testified that she was unaware of the draft complaint or that it had been sent, so it's misleading. And as for them both signing is misleading. JD1 signed in response to her understanding that there was a declare order and she needed to sign or the order would be issued. And then lastly, as to the NDA that JD1 and defendant were represented by attorneys and any breach would go to arbitration gets into the details of it too much and we weren't going to go there.

Cohen: Number one, there's a signed retainer with Novek...

Olmedo: I don't think that's the People's issue.

Cohen: The fact that JD1 has testified to something doesn't make it true.

Olmedo: We're just making stipulations. I understand you both want to argue different motives.

Cohen: Let me just say one thing. It is unfair to have JD1 testify to things that should not have been testified to and then not let the defense respond.

Olmedo: So I called up both sides to talk to you. I have crafted some admonitions: Evidence regarding prior civil litigation has been admitted to allow you to judge the motives a witness and not for the truth of the matter.

Also, No evidence has been provided that Masterson is involved in any harassment or stalking. This evidence is being admitted not for the truth of the matter but to judge the state of mind.

Olmedo says Mueller asked JD1 what she feared, not about the settlement agreement itself. And one of the things she feared was being liable for a large amount of money because of the settlement.

The court has tried to fashion something on the middle ground for both sides. That on a certain date JD1 and Masterson signed an agreement and Masterson received a draft civil complaint.

Mr. Cohen, you can ask JD1 about the pending 2019 harassment lawsuit and if she is seeking monetary damages. Now if she says no or I don't know, I don't know that that will open the door to bring in the civil complainnt. But you can at least ask the question and we'll go from there.

With regards to what is in the draft civil complaint versus what she believes is in it, you can ask her was it her understanding that before she would be liable for monetary damages was there a process she was asked to go through.

Mr. Mueller has indicated he is going to ask Mr. Singer and he can clear up things about how that process of the settlement occurred.

As I indicated in my admonition, what is in the document is not important here, but goes to JD1's state of mind and to motive of monetary damages and whether she felt forced to sign it. So both sides can argue their perspectives on that at argument. Anything else we need to pick up?

In addition, I have filled out a tentative trial schedule.

She says we're missing a couple of jurors, she calls the attorneys up for a sidebar.

A little later...

Judge Olmedo: We received a note from juror 3 in seat 2 who for a variety reasons that are giving her anxiety and has asked to be excused. Both sides have agreed to excuse her and to bring on an alternate.

And another juror is late, so we're in recess.

We've just been given a trial schedule. Tomorrow's session will start a little late and end early. And next week we'll have Wednesday off.

The Masterson family box is full again today, with Bijou Phillips, Carol Masterson, and Danny's siblings Christopher, Alanna, and Jordan.

Just a reminder that Alanna and Jordan Masterson were the product of Carol's marriage to Joe Reaiche, an Australian former professional rugby player, and that his children disconnected from him when he left Scientology more than a decade ago.

So, for those wondering about Scientology concepts in the courtroom, Alanna and Jordan are providing a pretty good source of it by just sitting here.

Judge Olmedo is telling us about the earthquake drill, and that we'll be instructed to "drop, cover, and hold."

The jury comes in. Judge Olmedo calls up Juror #3 to speak with her and the attorneys in a sidebar.

Judge Olmedo: So, ladies and gentleman, you see we now have an empty seat on the jury. It has happened fairly early in this trial, but it may not be the last time.

She says the clerk has a cup with some numbers in it and he randomly selects Juror 54 from the alternates to join the main jury.

Jane Doe 1 returns to the courtroom.

Philip Cohen will resume his cross-examination.

Good morning, miss [Jane Doe 1].

Good morning.

We were talking about that in 2004 you believed that your sex with Masterson from Sept 2002 was consensual.

Correct.

That's the position you held in 2004?

Correct.

In 2010?

Correct.

In 2015?

Correct.

And then you said in 2018, that position changes.

Correct.

Now, between 2004 and 2018, you actually gave an interview with Mr. Mueller.

Correct.

When you spoke to Mr. Mueller about the 2002 incident, it's fair to say you were truthful?

Yes.

You spoke about the 2002 incident.

Correct.

One thing you told him (April 24, 2017) was that in fact the Sept 2002 sex you did not feel was a rape.

Correct.

Another thing you told Mr. Mueller you understood what was going on during it.

Correct.

Another thing you told him was that the 2002 incident was consensual.

Correct.

We heard in opening statement Mr. Mueller indicated that you wouuld testify that you were out of it during the 2002 incident. When you spoke to him in 2017, you told him "I wasn't out of it." Correct?

Correct.

From the time of that interview, about a year later, you say that your belief changed to not consensual in 2018.

Correct.

Following that change of position, you then file a civil lawsuit against Mr. Masterson, correct?

No?

Did you file a civil lawsuit against Mr. Masterson?

He's a named defendant.

Did you file a lawsuit against him after you changed from consensual to non-consensual.

I filed a lawsuit against Scientology and Mr. Miscavige.

And this guy? (Pointing at Masterson)

Yes.

Did you tell the jury you were suing for peace?

(Judge Olmedo asksk both sides not to do that and say "did you tell the jury.)

Are you seeking monetary damanges?

I am suing for two reasons... (Obj, sustained.)

(Judge Olmedo asks her only to answer the question asked.)

In the lawsuit are you seeking monetary damages for emotional distress?

Yes.

Are you seeking punitive damages?

I believe so.

Are you seeking treble or triple damages pursuant to California law?

It's possible. I don't know.

(She says she isn't sure what "treble" means, she says.)

In addition to seeking monetary damages if the suit also seeks treble or triple damages.

I don't know as I sit here.

One of the people you interviewed with was Mr. Mueller in 2017.

Correct.

I'm going to be asking you about some other statements you made to other individuals, including police officers with LAPD. You recall giving a statement on June 6, 2004?

Yes.

Do you recall the officer was Schlegel?

I don't have a recollection.

Would it help it to refresh to see a report?

If it says Schlegel it won't help me to remember. It was just a man at a desk.

Can we agree the interview was June 6, 2004? A man who might have been named Schlegel?

Correct.

Days later give another statement to another LAPD personnel?

I don't remember that one.

Do you remember giving a second statement?

I don't remember that one. I don't remember going in a second one.

Do you remember talking to a Det Myers.

I thought I talked to a Det Flowers.

Do you remember giving a statement to Det Myers?

No. I only remember being at the station once. I remember the first time I walked in. Was it in person?

Cohen: I wasn't there. Do you recall having reviewed these reports from 2004?

I do, in 2017.

And you recall going through two different reports?

No, I thought it was one. I was only shown one from 2004. It was an email.

What email are you talking about?

Det. Vargas sent it to me to review.

OK, just so we're clear Det. Vargas is LAPD, there's Det Reyes in 2016, then there's Mr. Mueller in 2017, and then Det Vargas takes the place of Reyes some time in 2017.

Correct.

[Cohen brings JD1 a document.]

June 6 and June 8 2004 separate interviews at LAPD. List of interview dates through 2017. These are not all the interviews.

I don't recall the second one on the list. Maybe they were combined in one.

Would it refresh your recollection to see the June 8 report of an interview?

Maybe.

[Cohen brings another document.]

I'm going to hand you the document, you can look at any part of it, and I want to know if this refreshes your recollection that you spoke to Det Myers on June 8, 2004.

I've never seen this first page ever.

You can look at any page you want.

Judge Olmedo: It's not if you've ever seen it before, it's does it refresh your memory of the interview. Does this refresh your memory?

JD1: It's not an interview with me.

Olmedo: The only question is does it refresh your memory?

JD1: No.

Cohen: (Shows it to Mueller.) The defense proposes a stipulation that Det Myers interviewed JD1 on June 8. (People agrees. Olmedo explains to the jury a stipulation means they have to accept it as true.)

[Puts up a list of interview dates.]

Cohen: We're going to be talking about five interviews. I know that there were more. June 6 2004 Schlegel, June 8 Myers, Jan 2017 Reyes, Apr 2017 Mueller, July 2017 Vargas. My question is, would this be accurate, that between 2004 and 2017 you did not speak with any law enforcement personnel.

Correct. -- No, that's not correct.

Who did you speak with?

Multiple times the front desk at the Wilcox station.

In 2004?

2004, 2005, maybe 2006.

When you spoke to Det Myers on June 8 2004, did you tell Det Myers with respect to the Sept 2002 and Apr 2003 incident that you had no proof as to what had happened between you and Masterson?

I don't recall.

Would it help to refresh your memory if I showed you the report?

The one that said I didn't speak English?

Did you tell Det Myers with respect to Apr 2003, you had no proof of what happened?

Not to my recollection.

Would it help to refresh that recollection to take a look at Myers' report?

Maybe.

[Gives her the report.]

It doesn't refresh my recollectoin that I spoke to a Det. Myers.

Did you tell any LAPD officer on June 8 or June 9 or June 10, 2004 that you believed there was no proof of what had happened regarding April 2003?

I don't think states accurately what I just read.

My question for you is, did I misread what the report says? (Obj, sustained)

Did you tell any officer LAPD, when the incident happeend she believed no proof existed of what happened?

(Asked and answered, Olmedo says.)

Did you tell any officer in 2004 that you weren't clear on everything that happened.

I'm sure I told an officer that in 2004.

And did you tell an officer that you did not want your parents to find out?

I may have said that.

So let's talk about what you spoke to LAPD about. Let's start with the Sept 2002 incident. Prior to the incident, you had had a bad experienc growing up, a few months earlier, is that right? (Obj relevance, sustained.)

Cohen: Prior to the Sept 2002 incident, had you chosen to take a break from drinkign alcohol? (Obj relevance, sustained.)

Cohen: When you spoke to Mr. Mueller in 2018 interview that prior to 2002 incident you hadn't drunk in a long time (Obj, sustained.)

Cohen: Did you tell Mueller your tolerance for alcohol was low? (Obj, sustained)

Cohen begins a question, but Judge Olmedo asks the jury to step into the jury room.

Jane Doe 1 also goes out of the courtroom.

Olmedo: A couple of things, first of all, do not preface a question with what Mueller said in opening statements. Openings are not evidence. Don't do that again.

Also, any question that starts, did you say, did you say, falls into hearsay. I haven't heard anything that is inconsistent with what was testified to before.

She's also admonishing Mueller about speaking objections.

Any witnesses prior substance abuse is off limits in questioning. Unless it's directly relevant. I get that you want to give the impression she has a low tolerance. You can ask her that directly. But it is inappropriate questioning.

If you can tell I want this to go smoothly and efficiently. I will get more involved with ask and answered. And I will not put up with questions like, "Did you tell the jury yesterday that...."

She's complaining that it makes the testimony twice as long.

Cohen: Not going into her drinking pattern. I don't care about it. We heard testiony about what one drink did to her. We heard about it on at least three different occasions. Point of my question is, the inference of Mueller something funny must have happened in 2002.

Olmedo: If you're talking about the 2002 incident, she said the intoxication she felt was in order the drinks she had, a double or a triple. The 2003 is the fruity drink and she felt inordoiately.

Cohen: With 2004 she told the officer something difffernt, that it was one drink.

Olmedo: Then ask her that!

Cohen: The reason it becomes important is, she tells Mueller that she's abstaining from drinking, Sept she has a low tolerance for alcohol. Tells the officer she had one drink, not two. The reason for me is that the low tolerance continues to April.

Olmedo: Ask her on this date did you feel your alcohol tolerance was lower that in the past. And ask her if she said this or that to the officer. OK, bring the jury in.

Jury back in, JD1 back in.

Cohen: In Sept 2002, did you have a low tolerance for alcohol?

JD1: I feel I did.

With respect to the Sept 2002 interaction at Lucky Bar, did you have two drinks?

I had one and a half.

Do recall telling Det Myers in 2004 that you had one drink?

I don't recall saying that.

Would it help to look at Det Myers' report?

Can you tell me if Det Myers is a man or a woman? I don't remember talking to an officer then.

The Lucky Bar you were at, with Mr. Masterson. Did you have any indication while at the bar, that he was hitting on you?

No.

It's because you had no inidication he was hitting on you that you felt comfortable getting in the car with him.

No.

Did you tell any LAPD officer that Mr. Masterson was repeatedly hitting on you at the Lucky Bar?

No.

You and Mr. Masterson then go to his house?

Correct.

You seemed to indicate a very specific detailed recollection.

I don't agree with that.

You remember walking up the stairs.

I remember that. I remember smoking a cigarette. I guess it's about which part. I would like an even better recollection of it.

You and Mr. Masterson start having sex. You were laughing.

Yes.

This is really stupid or weird.

Right.

At no time do you indicate regarding vaginal sex, no. Correct?

I can't answer that yes or no, I don't agree with the way he asked it.

During vaginal sex did you say no?

I never said no.

You never said stop, don't do this?

That's a quote I never said.

And then at some point, Mr. Masterson's penis makes contact your anus.

Correct.

And as soon as Mr. Masterson makes contact, at that point you say no.

Correct.

And mr. Masterson immediately moves his penis.

No. (Emotional.) No.

Did you think Mr. Masterson's penis contacting your anus was accidental?

No. (Obj, sust, strike the answer.)

Did you ever tell Det Myers that you believe Masterson's penis touching your anus was acciddntal? (Obj)

Let's take a break. Judge Olmedo reminds us again about the

Olmedo: Did she believe penis touching anus was accidental, and later did she tell Myers that. She can't know what was in Masterson's mind. So I sustained it. So then trying to impeach her by what she said to Det Myers isn't proper because I sustained the first part. It's not admissible what she told Det. As to accidental, that goes defendant's state of mind.

Cohen: It goes to witness's state of mind. She's said it was consensual, she's now changed that position. I believe that puts at issue those beliefs as to why she thought it was initial consensual. He gives example of saying is it cold.

Olmedo: It's absoultely differant than saying it's cold outside. Because you're asking to determine what was in a state of mind.

Cohen: Saying that she told Det Myers that he apologized afterwards.

Olmedo says that he can ask her about that but again, not to ask about what was in Masterson's mind. That's my ruling.

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