Apr 26, 2023

Danny Masterson Rape Retrial: Frustrated Judge Puts Defense & Prosecution On Notice That Things Will Be Different This Time - Update

Dominic Patten


Senior Editor, Legal & TV Critic


April 24, 2023

UPDATED, 3:08 PM: “Please don’t ever tell me to hold on,” Los Angeles Superior Court Judge Charlaine Olmedo snapped at Danny Masterson’s lead lawyer Phillip Cohen in a remarkable moment Monday afternoon over the defense’s opening statements in Masterson’s rape retrial.

With the jury sent out of the courtroom suddenly less than half an hour into Cohen’s remarks, Olmedo made it clear to all in the full courtroom that this trial was not going to be run like the last one last year.

“The court is not going to allow the parties to go into the weeds,” the judge said sternly to both the defense and the prosecution Monday as the same problems that slowed down the previous five-week trial began to emerge. Pledging no sidebars and other occasions that could eat up time in the retrial, Olmedo got to a place today that it took her more than a week to reach in the last trial – – and she made sure the courtroom knew the rules.

Taking Cohen to task as she did many times before in the last trial, Olmedo also bluntly told the defense lawyer, “Mr. Cohen please do not use quotes, do not use previous testimony.” To cut off Cohen’s repeated mentioning of private and protected information of the Jane Does in front of the jury, onlookers and the typing media, the judge said “stop apologizing for using first names — just don’t do it!”

“Opening statement is a preview from the lawyers …that is to be done in good faith,” said Cohen earlier in the afternoon during his own opening statement in his client’s rape retrial. “There are a couple of pieces of testimony that [Assistant D.A. Reinhold Mueller] referred to in good faith that I want to talk to about,” he added, allegedly going off script to take a series of jabs at the Los Angeles District Attorney’s office.

“There is no drug charge,” the lawyer said, ripping into the date-rape drug claims that Mueller put front and center in his own opening statement. “Scientology is not a defendant …just Masterson,” he also stated, much as he did in longtime church member Masterson’s previous trial last year.

Unlike the last trial, those drug claims were heavily articulated today by Mueller, who repeatedly noted how the Jane Does, all former Scientologists, complained of being disoriented after sipping a drink made for them by Masterson before the alleged sexual assaults.  

Frequently interrupted by sustained objections from Mueller, Cohen went into an expectations game of what Jane Doe No 1, aka Jen B, will say about the alleged sexual assault more than 20 years ago at Masterson’s Hollywood Hills home. That’s when, just over an hour after a return from a lunch break, a frustrated Olmedo told the jury to leave and gave the assembled lawyers a piece of her judicial mind.

Before that, citing Jen B’s 2004 LAPD report, Cohen put the credibility of now-Superintendent Alexander Schlegel as well as that of other law enforcement up against that of Jane Doe No. 1. Specifically, the lawyer sought to shred the discrepancies between what Jen B told officers about a gun Masterson had in a bedside drawer and what exactly occurred when the defendant took it out after the alleged rape.

Moving at a faster clip than the prosecution did in their opening statement and adopting a far more low-fi approach, Cohen attacked the credibility of Jane Doe No. 4, who is not among the three rape charges that make up this case, and portrayed her as a spurned one-night stand who wanted a relationship with Masterson.

Like the last trial, Cohen used a large slab of his opening statement to undercut the credibility of the Jane Does and who said what when and to whom. Seeking to taint the scene for the prosecution before testimony begins, the tactic certainly proved a welcoming spoiler for the defense last time, and they are clearly betting history will repeat itself.

After the morning recess and before the 90-minute lunch break, Mueller had continued his vivid opening statement, albeit with a bit less fuel than earlier.

Going over the alleged rape of Jane Doe No. 1 in the case, the prosecutor was a more measured than earlier in the morning but still maintained a pinpoint focus on the individual stories of the three Jane Does. Once again, his use of the courtroom video monitor amplified his remarks with photos of the alleged victims, Masterson himself, timelines and venues in question, as well as Scientology officials. This was a stark contrast to the use of much more limited technology in the previous trial, which was minimal and lightly informative at best.

Noting the lack of “human emotion” in the reports prepared by Scientology over Jen B going to the church after the alleged rape by fellow Scientologist Masterson, Mueller again returned to the shadow of the church and its “committee of evidence.” Covering ground travelled heavily in the first trial, the prosecutor also detailed the civil action put in motion by Jen B’s father and the NDA she was told to sign by Scientology officials to receive $400,000 or risk being kicked out of the church.

In the first trial, Hollywood lawyer Marty Singer was set to be called as a witness for his role in this portion of the matter; at the time, the pugilistic Singer was even seen seated in the 9th floor halls of the Clara Shortridge Foltz Criminal Justice Center waiting to take the stand. Singer’s testimony was delayed again and again by other matters in the case, and the attorney never ended up testifying.

He is not a witness in the retrial.

Seated at the defense table today, the suited Masterson looked at the jury during Mueller’s opening statement and Cohen’s remarks, occasionally moving his facial muscles and stroking his jaw.

After the lunch break, Mueller wrapped his opening statement to tell the jurors of “expert witnesses” who will be testifying about date-rape drug symptoms and forensic psychology, among other topics.

“The four women up here, you’re going to hear what it took for these women to get in court … the limitations the church put on them,” Mueller said, pointing at the composite picture on the video monitor just next to the jurors. “They’re here to seek justice, and I’m confident that each of you will be able to render guilty on all counts.”

The jury in the previous trial were not able to reach that verdict, with the deadlocked case declared a mistrial.

(Update 4:11 PM: The defense’s opening statement ended mere minutes after the court reconvened from its afternoon break. Fast forward about 10 minutes and the first witness was called for the prosecution. Like Masterson’s last trial, the first witness was one of the Jane Does. However, this time it was the actor’s ex-girlfriend Christina B as opposed to Jen B, who was called on October 18 in the previous trial.

With that said, and a very brief delay for an alternate juror to make it back to the courtroom, the former model barely had time to describe first meeting Masterson in the late 1990s before Judge Olmedo called an end to today’s proceedings at 4 PM. Testimony will resume tomorrow at 9 AM.)

PREVIOUSLY, 10:32 AM: “This case is about the forcible rape of three women,” Los Angeles Deputy District Attorney Reinhold Mueller said in his opening statement Monday in Danny Masterson’s retrial on multiple rape charges. “The evidence will show they were drugged,” the prosecutor added of the three Jane Does at the heart of the Scientology spotlighting matter.

While employing language similar in scope to what the prosecutor used in his first remarks in the former That 70s Show star’s first trial last year that ended in a mistrial, Mueller strategically shifted tactics this time for a more visceral approach over what he believed happened to Jane Doe No. 1, aka Jen B, and the other women including Jane Doe No. 3, aka Christina B, who dated Masterson for several years, back in the late 1990s and early 2000s.

Jane Doe No. 3 was “drugged and sodomized while unconscious” by “a man she loved,” Mueller said today, laying newly explicit emphasis on the theory that the defendant used date-rape drugs to incapacitate his victims. In the first trial, prosecutors strongly suggested but never truly came out to claim the “relatively famous” Masterson date-raped the Jane Does by dropping something in the fruity drinks he mixed for the women in question.

Addressing the jurors as he spoke in a much stronger voice than last time and with a constant stream of images of the Jane Does on the nearby video monitor, Mueller bluntly told the panel that there would be no “expert” taking the stand to testify whether the women had been slipped something by Masterson. However, Mueller did say that a member of the LAPD toxicology unit will testify how “common date-rape drugs metabolize” and the whether “they are consistent or inconsistent” with the situations all three Jane Does described suddenly feeling not long after Masterson handed them a drink.

With a vigor and a profanity-filled candor that was absent for the most part from the prosecution’s opening statements during the first trial last October, Mueller today laid out a pointed and relatively succinct tale for the jury of a constant pattern of abusive, lewd, entitled and violent behavior by Masterson.

“This was normal,” the Assistant D.A. asserted of the assaults that Christina B allegedly suffered from her then-boyfriend.

If the inclusion of date-rape drugs to the case was a new move, the role of Scientology was not, though even the way the church was introduced tpday was noticeably different.

All three Jane Does in the case are former members of Scientology. Masterson is still a member.

“If you’re a member of the church and you have an issue (like a rape) with another member … you are not permitted to go to law enforcement,” Mueller said of the “church’s internal justice system.” The prosecutor explained that if Christina B, or any church member for that matter, went to the police to report such an alleged crime, she would be declared “a suppressed person” and promptly “excommunicated” from Scientology.

“You pulled it in …it’s your fault,” Mueller told the jurors about how Christina B was admonished by a church ethics officer in which she confided. “You have to give him [Masterson] sex when he wants it,” the Assistant D.A. said the ethics officer told Christina B, who was in a six-year relationship with Masterson, a second-generation Scientologist, and joined the church for him.

Even before today’s proceedings formally kicked off, there was some high Scientology drama in Los Angeles Superior Court Judge Charlaine Olmedo’s courtroom.

Unlike the past trial, former Scientologist Leah Remini was also in attendance today — and that was a problem for the defense. A longtime sharp and critical thorn in church leader David Miscavige’s paw, Remini was served a subpoena by the defense “this morning” by the defense, who wanted the potential witness excluded from the proceedings.

With Remini sitting in the front row surrounded by an entourage, Olmedo denied the request before the jury was brought into the packed courtroom. Hesitant to reveal why it was a possibility the former King of Queens star would be called by the defense, new-ishly hired attorney Shawn Holley would only say Remini was a “percipient witness to certain conversations” — a statement the judge redefined as an impeachment witness, based on elements of Remini’s award-winning docuseries Scientology and the Aftermath.

Remini may also end up being a witness for the prosecution for Jane Doe No. 1, Assistant D.A. Mueller confirmed. The actress took to social media this morning before the jury were in court to announce her presence and her reason for being here:

Things took another tense turn this morning when lead defense lawyer Phillip Cohen sought to have the Jane Does referred to as “accusers,” not victims. Olmedo quickly rejected that suggestion and Cohen’s claim that she previously agreed to such a designation. “In 20 years on the court, I have never said that, I never would,” the judge said as things came to a halt due to some tech-support issues.

On trial now for the same trio of sexual assault charges a jury deadlocked over last fall, Masterson has beefed up his defense team in the interim. Joining the returning Cohen at Masterson’s table is the high-profile Holley, who took a leading role right away today. A veteran of O.J. Simpson’s so-called Dream Team, plus legal battles for seemingly lost causes like Lindsey Lohan, the Kinsella Weitzman Iser Kump Holley LLP partner could prove a decisive factor for the defense, especially when it comes to questioning Masterson’s accusers on the stand. It’s an area Cohen often struggled to find a consistent tone for during the last trial.

It is unclear whether the defense will roll the dice and put Masterson on the stand to testify in his own defense. Sticking to a more traditional playbook in such criminal cases, he did not testify in the first trial.

Mueller today also put focus for this jury on Kathleen Jenkins, who was not a part of the first trial. Scheduled to testify as a witness, but not one of the Jane Does, Jenkins alleges that Masterson raped her in 2000 at the wrap party for Dracula 2000 in Toronto. At the time of the alleged incident, assistant prop master Jenkins’ while her husband was just down the hall. Like other rapes cited by the D.A., Jenkins was handed a drink by Masterson and supposedly became light head and confused soon afterwards.

Although Judge Olmedo repeatedly said in the first trial that Scientology was not a defendant in the criminal case, the church, its policies and an alleged cover-up of the alleged rapes were brought up frequently by the D.A.’s office today. As they are expected to do this time round, the Cohen-led defense tried to varying degrees of failure to do everything they could to limit mention of the church.

Based on pretrial rulings in this retrial, Scientology is certain to be a significant thrust of the prosecution’s case.

Add to that, Masterson is also up against a much-delayed 2019 civil case from a number of the Jane Does and others over claims of harassment and more by Masterson and Scientology after the now-plaintiffs went to the LAPD. That case is expected to restart again later this summer.

Today’s proceedings followed a week of jury selection, motions and other housekeeping. The retrial is expected to last more than a month.

The prosecution’s opening statement is anticipated to concluded after the court’s regular morning break, with the defense set to beginning their opening statement later today.

First arrested in 2020 over incidents that occurred between 2001 and 2003 in his Hollywood Hills house, Masterson faces up to 45 years in state prison if found guilty on all three rape counts, as he did in the first trial. The actor, who was quickly 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 sex with the Jane Does had been consensual.

Expected to be in court every day, as he was in the five-week first trial, Masterson has been free on $3.3 million bail the past three years. As in the previous trial, Monday saw Masterson’s wife Bijou Phillips in the courtroom, along with others in the family like sister-in-law Mackenzie Phillips, friends and defense consultants.




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