UPDATE, 3:51 PM: “For every inconsistency, there will be some excuse to make up for it,” proclaimed defense attorney Phillip Cohen Tuesday afternoon of the prosecution’s case in his last pitch in Danny Masterson’s rape retrial.
“I’m not claiming that there is some grand conspiracy,” the lawyer told the jury in his closing statement of the three Jane Does who Masterson is alleged to have sexually assaulted. “But with respect to the Jane Does,” their stories “have been tweaked, it doesn’t take a whole lot …a tweak here, massaging a word there,” the colorfully attired attorney added of what the three former Scientologists have said, and have perhaps said to each other since the alleged rapes occurred over 20 years ago in the former That 70s Show actor and prominent Scientologist’s Hollywood Hills home.
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Putting the notion of “contamination” by the trio and the prosecution at the center of his presentation today, Cohen read from the law and then asked “did the witness make a statement in the past that is consistent or inconsistent with his testimony?” He continued: “time and time again things came out on direct (examination) that sounded like a great version of events, and then it would come out” differently under cross.
“If you are looking for motives why people are not being truthful …there are motives all over the place,” Cohen stated, pointing to the currently paused civil case the trio of Jane Does and members of their families have against Masterson and Scientology and the financial compensation it may provide.
“It’s all about money, they want to sue for money” or get “revenge” on the Church of Scientology, said deputy district attorney Reinhold Mueller later in the day in response in the prosecution’s final closing argument. “Ladies and gentleman, don’t be fooled,” the prosecutor added in a calm but steely voice.
“This is about evidence that has come in in this case, not some speculation,” Mueller went on to say with a swipe at the defense’s closing argument and much of their case while pointing to a collage of the allegedly raped Jane Does on the video monitor next to the jurors.
Facing over 40 years behind bars if found guilty on a trio of rape charges, Masterson’s fate will likely be in the hands of a Los Angeles jury again tomorrow. Following the conclusion of the final closing argument by the LA County District Attorney’s office’s Reinhold Mueller, Judge Charlaine Olmedo will almost certainly send the panel behind closed doors Wednesday to come to a verdict.
With that in mind, and going much more low-tech than the prosecution’s presentation earlier Tuesday, Cohen pulled out large boards to illustrate his arguments of “reasonable doubt” to the jury, as well as displaying hard to read testimony text on the video monitor.
Throughout this afternoon, and before the lunch break, Masterson and defense co-counsel Shawn Holley sat at the defense table with their eyes locked on Cohen on the other side of the courtroom in front of the jury. As they have on many days in this retrial and in the previous trial, Masterson’s family fill the two pews just behind the lawyers with the actor’s spouse Bijou Phillips in the front.
Seeking to disassemble the prosecution’s case by slicing up some testimony a bit here, tearing off some memory of a Jane Doe there, a noticeably subdued Cohen deliberately got down in the weeds of the retrial to amplify contradictions, omissions, “brain farts,” and the letter of the law. While much lower in volume than during the first trial, Cohen’s final presentation didn’t actually differ much in spirit or content from that first trial. With that first trial resulting in a deadlocked jury last November, one can see the logic of that. Why should the “don’t take my word for it” repeating Cohen try now to reinvent the wheel if he can achieve a similar end for his client this time?
In that vein, Cohen spent just a few minutes this afternoon addressing the prosecution’s heavily discussed presumption that Masterson spiked his alleged victims’ drink to render them easy to assault. Centering on ”what the drinking patterns were,” how much the alleged victims actually had to drink and the toxicology expert’s testimony lacking a forensic analysis, Cohen once again flipped the script on the credibility of the victims.
The attorney also gave just a few words to the policies and role of Scientology in the claims of this trial, something the D.A.’s office has put a spotlight on in this case and the previous one.
“Why have we heard so much about Scientology?” Cohen mentioned in the final section of his closing argument before the afternoon break. “Could it be there’s problems with the government’s case?” he asked, reading from jury instructions about what could and could not “be used against Mr. Masterson.”
Along with flattering the jury and their efforts, the pacing lawyer repeatedly jumped ahead to what the response of the D.A. to his judicial surgery would be in subsequent comments, and sought to hobble those arguments with apparent contradictions before they were made. “To prove their case beyond a reasonable doubt the government did not call the lead investigating officer, who has been on this case since 2017,” Cohen asserted to the panel of the absence this time round of the LAPD’s Det. Javier Vargas, before adding with no small amount of blatant sarcasm, “imagine that!”
Circling back to inconsistencies, Cohen brought up the uncharged alleged rape victim and witness in the case, who did not testify in the first deadlocked trial. Theorizing that bad prior acts witness Kathleen Jenkins was brought in for the retrial to “save the case” with her description of being raped in Toronto by Masterson in 2000, Cohen reminded the jury that she tweeted about a rape in 2003 and later called the tweet a mistake.
The defense attorney then claimed more inconsistency on Jenkins’ part out of her denial that she knew anything about Scientology or who Leah Remini is. Telling the jury that “you should consider not believing anything that witness says,” due to the fact that she follows Scientology critic Remini on social media and has put up tweets with #scientology, as well at stages claiming and then denying that Gerald Butler invited her to the Toronto party where she claims Masterson raped her 23 years ago.
“I hate to get into semantics, but words are very important.” Cohen said later in the afternoon in a perhaps unintentional summation of his own closing argument.
With a constant banging on the walls distracting the packed courtroom, Deputy District Attorney Ariel Anson concluded her forceful 80-minute closing argument earlier today after the morning break and before the court broke for lunch.
In what could later look like playing into Cohen’s closing argument, Anson wrapped her remarks up by coming back to the similarities each victim had in their alleged assaults. However, attempting to TKO the defense’s emphasis in the retrial on the Jane Does matching up their stories, the prosecutor made a distinct point of noting the differences between each victim’s account, and the specifics each Jane Doe testified to during the retrial as a preemptive rebuttal.
Unlike from the last trial, it was noteworthy Tuesday that it was Anson who presented most of the prosecution’s last pitch. In the previous trial, which ended up as a mistrial last November after the jury proved unable to come to a verdict, it was deputy D.A. Mueller who handled the majority of the close, as he did the opening statements in both that trial and this one. Offering a much more measured presentation on those occasions than Anson did today, Mueller spent much of Tuesday throughout the D.A. and defense closing arguments sitting at the prosecution table with his fingers linked in front of him and staring ahead at the video monitor.
When it was his time to speak, confident or wanting to be overly comprehensive, Mueller started off the prosecution’s final presentation at around 3:30 p.m. by anticlimactically telling the jury he would finish tomorrow. To lay out the timeline: in a criminal trial, the prosecution gets to speak first, then the defense and then the prosecution one more time before the jury is finally sent to deliberate.
PREVIOUSLY, 10:59 AM: “It all starts with a drink,” said deputy District Attorney Ariel Anson today in closing arguments in Danny Masterson’s rape retrial. “How many times have you heard the defendant ask, would you like a drink? This is his play book, this is what he does…how he ensures to get what he wants.”
Linking Masterson to the Church of Scientology, of which the defendant is a long time member, Anson again and again this morning in downtown LA hit the That 70s Show actor hard with a pattern of deliberate behavior and protection from the David Miscavige-led organization.
“Like all predators, the defendant carefully sought out his prey,” Anson declared of the three Jane Does at the heart of this criminal case. “What better hunting ground?” the prosecutor added of Masterson allegedly assaulting fellow Scientologists, who were later supposedly threatened with excommunication if they went to law enforcement.
“She needed to figure it out …it’s your fault,” Anson exclaimed the Church told Christina B, a Jane Doe who was involved in a long-term relationship with Masterson during the time period when the actor’s profile exploded due to the success of That 70s Show. “It’s not the law,” the deputy D.A. told the jurors of a Scientology ethics officer’s supposed reaction to Christina B’s claims that Masterson anally raped her and she had to let the matter be handled internally.
Arrested in 2020 over the alleged assaults that occurred between 2001 and 2003 in his Hollywood Hills house, Masterson faces up to 45 years in a California state prison if found guilty on all three rape counts this time round. The actor, who quickly was fired from the Netflix comedy The Ranch at the end of 2017 as assault claims became known, and has been excluded from the That ’90s Show revival, always has said the sex with the Jane Does was consensual. As Harvey Weinstein faced his own LA trial down the hall of the Clara Shortridge Foltz Criminal Justice Center last fall, the first trial resulted in a deadlocked jury on November 30. The retrial began on April 24.
Seated at the defense table every day, as he was throughout the first five-week long trial, Masterson has been free on $3.3 million bail for the past three years. Regardless of what the jury decides, or not, this time round, Masterson will be back in court soon.
Directly facing the jury today in court, and punctuating her remarks with images of Masterson, his alleged victims, his home and more on a nearby monitor, deputy D.A. Anson doubled down on the drugging of the victims to both render them vulnerable and easy to disregard afterwards. “In the morning when they wake up , they are dazed, they are confused and they are in pain,” she said of the alleged attacks that happened in the early years of the 21st century in Masterson’s LA home.
“The defendant drugged his victims to be in control,” Anson went on to say in a closing argument distinguished as much by its intensity as its brevity of tone. “When he drugs them, he is completely able to control them …and he does it over and over and over again.”
“They want to hold these victims to an unreasonably high standard,” the prosecutor said of the Phillip Cohen and Shawn Holley-led defense. Claiming the victims are being “branded a liar” Anson went on to theorize this was part of a plan to warn off any other possible allegations coming forward under fear of harsh public and private consequences.
Admitting there is no toxicology report to confirm that the victims were drugged over 20 years ago, Anson pointed out that each woman had a “small amount of alcohol” that Masterson gave them. Each got “completely wrecked …so he could do whatever he wanted to her, and he did.”
Noting that each woman had “similar symptoms” and “their memory is not fully there,” Anson postulated that part of the reason Masterson drugged them was so “if they decided to report that, the defendant is able to discredit them.”
Stipulating that Scientology did not “protect” the victims, Anson used much of her time this morning in front of the jurors to walk them through the particulars of the case. Yet, repeatedly she returned to the topic of spiked drinks, Masterson’s methodology of alleged attacks and the response of the Church to protect one of its most high profile members.
Along with this criminal case, the actor faces a currently paused civil case that names both Masterson and the Church of Scientology itself as defendants.
The Janes Does from the criminal proceedings — all of whom are former members of the church — and family members claim they have been stalked, harassed and intimidated because of having reported the alleged rapes to police. Having won, then lost, a motion to have the whole matter dealt with in arbitration behind closed doors, Scientology last year sought to have the Supreme Court step in. At the beginning of its most recent term last October, the conservative majority SCOTUS denied the Church’s petition and the matter remains in LA Superior Court. The civil case will likely restart later this year, no matter what the outcome to this criminal retrial is.
Starting late last month, the retrial saw the trio of Jane Does from the first trial take the stand for the prosecution’s case. Unlike the first trial, the jurors also heard testimony from a fifth uncharged witness. Kathleen Jenkins. Under oath as a prior bad acts witness, the Toronto-based Jenkins told the court and jury that the That 70s Show actor raped her at the Dracula 2000 wrap party in the Canadian metropolis in 2000.
Pulling a play adopted most recently by Donald Trump’s team in the former president’s unsuccessful defamation civil trial, Masterson’s defense called no witnesses late last week and rested their case and hence the trial in a matter of minutes on May 12.
Additionally, there was a more pointed emphasis on the policies of Scientology and the role the group allegedly played in the three Jane Does reporting their respective alleged assaults to law enforcement and others. Seeking to learn from the previous trial, the D.A.’s office cast aside mere implications and put a bright spotlight on Masterson’s spiking the drinks that he gave the women he allegedly raped – a strategy Anson returned to in this morning’s closing argument.
Sharing a fair degree of Scientology controversy with the first trial, which resulted in a deadlocked jury on November 30, the retrial was rocked on May 10 by revelations that discovery material had somehow found its way into the hands of an attorney connected to the church.
Bizarrely, this was initially revealed when attorney Vicki Podberesky sent an email on May 2 to officials at the George Gascón-led office expressing disappointment, to put it politely, with the way Scientology had come up in the retrial. Attached to that email were 12 files, which the D.A.’s office soon found contained most of the discovery material for the criminal case. In what looks to be a clear violation of the victims’ rights statute known informally as Marsy’s Law, the sharing of evidence infuriated Judge Charlaine Olmedo, and could see the prosecution referring the leak to the LAPD or the state bar.
The judge has said that she may use the time when the jury is deliberating to learn more about the leak and potential consequences.
Starting late due to technical glitches, today’s hearing formally began with Judge Olmedo reading the jurors the jury instructions. Specifying Scientology, the judge told the jury that they may only consider material about the Church presented in the retrial to explain timelines, beliefs the Jane Does had of policy and repercussions they may face, the Jane Does subsequent behavior, and overall context.
The court is now on a short morning break, with the prosecution to finish up afterwards. The defense will present their closing arguments later Tuesday. Then the prosecution gets to speak again and last, with the jury expected to take the case under consideration as early as the end of today.
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