Danny Masterson Prosecutors’ Terrible Choice: Retry a Rape Case a Jury Soundly Rejected or Let Him Walk? | Analysis

News of what’s next for the “That ’70s Show” star will have to wait until a Jan. 10 hearing

danny masterson
Danny Masterson (Credit: Getty Images)

In sports parlance, the prosecutors pursuing three rape charges against Danny Masterson got blown out.

Not shut out – that would have meant a full-on acquittal for the “That ’70s Show” star. Instead, the jury of 12 could not reach a verdict after a two-week deliberation process broken up by a Thanksgiving break and the loss of two jurors to COVID-19, ending in a mistrial declared last Wednesday.

But the score wasn’t pretty for the L.A. district attorney: 10-2 favored acquittal on the first count, 8-4 on the second and 7-5 on the third.

For most court observers, the vote total the jury revealed at the request of Judge Charlaine F. Olmedo was a full-on shocker. Now Deputy District Attorney Reinhold Mueller has a fraught decision to make: Retry the case at risk of being embarrassed again, or suffer the fallout of letting one of the #MeToo movement’s highest-stakes cases – with a strong Scientology element – walk free?

“If this weren’t a media case, if it didn’t have this much scrutiny, I think they dismiss this thing,” said Josh Ritter, a Los Angeles defense attorney who spent a decade in the DA’s office and closely watched the Masterson case but was not connected to it. “You get a hang of 10-2 for not guilty? You’re not going to retry that. And it’s not like the prosecution had trouble – they put on the best case they could.”

For now, Masterson will have to stay right where the first jury kept him for two full weeks: on ice, to the tune of a $3 million bond.

Three women – who all said they met Masterson through the Church of Scientology in the early 2000s – testified over a handful of weeks that a forceful and commandeering Masterson gave them an alcoholic drink, then raped them in his room as they drifted in and out of consciousness. One of the Jane Doe witnesses was a long-term girlfriend; the other two he had casually known through mutual friends.

Each said pressure from Scientology prevented them from immediately reporting the alleged crimes, which the church has vociferously denied.

But it was the fourth witness whose testimony seemed like it might seal Masterson’s fate. Called at the 11th hour as a supporting witness, Jane Doe 4 was not a Scientologist, and her allegations were not among the charged crimes, but her story rhymed so strikingly with the others’, and her emotionally charged testimony seemed so credible, that it was hard to imagine a jury unmoved by the strength of the through-lines.

“Jurors are commonsense people,” Ritter said. “They hear from one person, they hear from a second person … by time there’s a third, what are the chances? And by the fourth, it’s like, ‘OK, this guy’s a rapist.’”

Yet that’s not what happened in the jury room, which saw four alternate substitutions before a mistrial was declared last Wednesday. One checked out early over undisclosed “concerns”; another was sent home for sleeping during the trial. While deliberations dragged on – then took a full week’s break for Thanksgiving before losing two members to COVID upon their return – expert observers assumed one, maybe two holdouts was preventing a conviction.

It turned out they were widely divided on all three charges, and the differing vote totals for each charge showed a “conscientious” jury, Ritter said, one that truly took the time to consider each charge separately, but stuck to their individual convictions.

There was one early clue that the jury was leaning toward acquittal, Ritter said. At one point, the panel asked to see defense attorney Phillip Cohen’s “degree-of-guilt” chart, a fairly standard argument that Masterson’s lawyer turned into an elaborate visual aid.

“When I saw that, I thought, ‘Oh, boy, that’s a huge sign in [Masterson’s] favor,” Ritter said. “If they ever ask for defense stuff … that means this is not going well.”

Tony Ortega, writer of The Underground Bunker blog about Scientology who was present for the entire trial, believes a retrial is a likely possibility.

“I spoke briefly with the prosecutor, and he said he was planing to proceed,” Ortega told TheWrap. “My sense from the victims is … they’re wondering today what might have been done differently. Which witnesses might have been called that weren’t? The people on the prosecution side at this point are thinking about strategies for a retrial.”

Indeed, several witnesses on the list were not called – including Lisa Marie Presley, whom prosecutors had hoped would testify that Scientology officers recruited her to talk one of the accusers out of reporting Masterson to police. Presley balked, suggesting she might plead the 5th, even after the DA assured her that any liability she might carry was lost to the statute of limitations. She was ultimately scrapped as a witness.

Prosecutors listed a fifth Jane Doe in their very early filings, but she never materialized. And the possibility of one or more Jane Does has been floated since the early goings, though observers doubt any more accusers would come forward, or would willingly testify.

Masterson was formally charged in 2020, but allegations first came to light in 2017 when Ortega reported that detectives were investigating the actor after three women came forward with accusations of rape and assault.

Getting those women back to the stand will not be a hurdle for prosecutors, as they have vowed to fight on – but also have a civil lawsuit pending against Masterson, the Church of Scientology and its leader, David Miscavige. Put on hold while Masterson’s criminal trial played out, the suit details allegations of stalking and harassing by Scientology members after the women reported Masterson and left the church.

“A conviction certainly would’ve helped in that lawsuit, but it’s a very separate civil case,” Ortega said. “Its not about the rapes, it’s about the harassment that these women say they’ve been going through. I personally know there’s some interesting evidence on their side.”

The church has called those allegations “ludicrous and a sham.” If Masterson ultimately goes free on the criminal charges, the underpinnings of that lawsuit will be weakened, and Scientology will have won back-to-back victories between the outcomes for “That ’70s Show” star and Paul Haggis, who tried to argue that the church was behind a civil rape case that he lost last month in New York.

Another twist came at the very moment the trial was declared over: Olmedo made the highly unusual step of letting lawyers for both sides go into the jury room, where they spent several minutes asking questions of the panelists. The jury seemed willing to participate in the rare moment of candor, and when Cohen emerged he said out loud: “I have never been given access like that.”

Ritter said the biggest issue for the jury may have been the time it took the victims to contact police, even with prosecutors making the Scientology argument. That rhymes with what several rejected jurors said during selection for the Harvey Weinstein trial — that no matter what the evidence shows, they would never convict someone for a crime that went unreported for so long.

“If I’m trying to read the tea leaves here, the biggest problem the prosecution had was the delay in reporting,” Ritter said. “No matter how you try to explain that to jurors … they’re still thinking, ‘I’m not going to wait around 10 years to report the person who raped me to law enforcement.’”

One thing that won’t be a factor in the DA’s decision, Ritter said: costs and resources.

“They never consider the costs,” he said. “It’s government work. If you’re not prosecuting this guy, you’re prosecuting another guy.”