Danny Masterson is due in a downtown Los Angeles courtroom Tuesday to learn if prosecutors will seek a second trial, six weeks after jurors deadlocked on three rape charges filed against the actor.
Masterson, 46, is charged with three counts of forcible rape involving three women at his Hollywood Hills home between 2001 and 2003. At the time of the alleged crimes, he’d risen to fame playing Steven Hyde on That ’70s Show, from 1998 to 2006.
The lopsidedness of the jury’s votes certainly gives District Attorney George Gascon’s office something to chew on: All jurors favored acquittal on at least one of the counts. After restarting once-stalled deliberations with two alternate jurors, the jury split 10-2 in favor of acquitting Masterson on the rape charge for the woman identified in court as Jen B.; 8-4 in favor of acquittal for the charge involving alleged victim N.T; and jurors split 7-5 in favor of acquittal for the third alleged victim, Chrissie Carnell-Bixler, who is Masterson’s ex-girlfriend.
Now, Masterson’s lawyers are citing the jury foreman’s own words in their argument that no matter the decision of the DA, the case against Masterson should not be allowed to proceed.
“After leading the lengthy deliberations, the jury foreperson formed the opinion that no jury is likely [to] ever render unanimous guilty verdicts. He is correct,” defense attorneys Philip Cohen and Karen Goldstein wrote in the 16-page motion to dismiss filed on Friday that includes a sworn declaration from the jury foreman. Read the full invitation to dismiss here.
Cohen acknowledged that the request is an uphill legal battle to reporters shortly after Los Angeles County Superior Court Judge Charlaine Olmedo declared a mistrial on Nov. 30, after jurors said they were hopelessly deadlocked.
“That’s a very difficult motion, to ask the court to preclude another trial,” Cohen said. “I look to the jury’s due diligence, to their effort, and most significantly, to what their votes were on all three counts. This was across the board.”
Masterson’s career has been somewhat overshadowed by his lifelong membership in the Church of Scientology, which is recognized as a religious organization by the Internal Revenue Service while dogged by longstanding allegations from former members that it’s a cult.
Members of the actor’s family, including his mother, Carol Masterson, who is a Scientologist and attended every day of the trial. His younger brothers Christopher Masterson, who portrayed oldest brother Frankie on Malcolm in the Middle, and Jordan Masterson who is well-known for his supporting role in The 40-Year-Old Virgin, were also often in court, as was the accused’s sister, Alanna Masterson, who appeared on The Walking Dead, and their half-brother, William Masterson.
The accused actor’s wife, Bijou Phillips, attended every day of the trial and was often joined by her half-sisters, Mackenzie Phillips and Chynna Phillips, and, on a few occasions, Phillips’ husband, actor Billy Baldwin. The Los Angeles Times published an article in October that includes comments from Masterson’s former stepfather, Joe Reaiche, who was excommunicated from Scientology in 2005 and said he’s been cut off by his former family.
Scientology critics hailed the trial as the most important in the organization’s 70-year history. Before it began, Judge Olmedo ruled Scientology to be relevant to five areas of testimony: why the alleged victims, who were members of the Church of Scientology, didn’t contact police sooner; their fears of being declared a so-called “suppressive person” within the Scientology community; the harassment they allege they’re experiencing by the Church of Scientology; and their past and present ties to the church as it relates to their current state of mind regarding fearfulness or other emotions.
The approximately four weeks of testimony occurred amid heightened attention on Scientology in Los Angeles. For a period, mayoral candidate Rick Caruso was highlighting eventual winner Karen Bass’ past support for the church in regional television ads. The Church of Scientology also started its ad campaign around the time trial opened, inviting people to learn about the church firsthand. The spot features Scientology leader David Miscavige, who is currently being sued along with Masterson by the same women the actor stands criminally accused of raping.
Each woman was a Scientology member at the time of the alleged rapes, but all have since left the church and testified that Scientology heightened their fears about reporting Masterson, both with the organization and to the police. They described a culture of victim-blaming within the church that sought to protect Masterson while essentially trying to cover up his crimes; each also testified about being harassed and stalked by Church of Scientology members.
The Church of Scientology denies any wrongdoing and says the Los Angeles County District Attorney’s Office is trying to use Masterson’s religion against the actor.
Carnell-Bixler has publicly identified herself as a “rape and cult survivor,” while using her full name, including in a statement submitted in 2021 to a U.S. House of Representatives committee. Her husband, Cedric Bixler-Zavala, frontman of the prog-rock band The Mars Volta, testified at the trial.
Actor Tricia Vessey also testified Masterson raped her on two occasions in 1996 after they met while filming the movie Too Pure. Masterson is not charged with a crime related to Vessey’s claim, but she testified in accordance with California Evidence Code section 1108; this allows testimony about a defendant’s “past sexual misconduct, alleged and otherwise, when they are currently on trial for a sex crime.”
The new dismissal motion from the defense says jurors spoke freely and candidly with prosecutors after the declaration of a mistrial and the sentiment was that there were “significant evidentiary and credibility problems with the government’s case” against Masterson. It also cites the foreman’s interview with former Scientologist Chris Shelton and journalist Tony Ortega, who operate the Scientology news website Underground Bunker. The motion says the foreman described a process that shows “an unbiased and fair-minded jury that took its oath and reasonability extremely seriously.
“Even Ortega “had to commend the jury for how conscientiously it approached the task,” the filing reads.
The deliberations involved 14 jurors total, with two replaced after each reported a Covid-19 diagnosis during the trial’s Thanksgiving break. One had voted not guilty on all three counts while the other voted not guilty on one and guilty on two; they were replaced with two jurors who voted not guilty on all counts.
“Given these numbers and the state of the evidence, it is unsurprising that the jurors, and each of them, indicated in their post-trial discussion with all counsel that, in their view, a unanimous verdict will not likely be reached by a jury,” according to the motion.
The Los Angeles County District Attorney’s Office has not publicly responded to the motion. Deputy District Attorneys Reinhold Mueller and Ariel Anson said after the mistrial that the decision on whether to pursue a second trial for Masterson will require a larger discussion within their office.
Tuesday’s hearing is scheduled for 8:30 a.m.
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