An appellate lawyer looks at Danny Masterson’s appeal arguments

[Danny and the Men’s Colony at SLO]

On Tuesday we told you that we’d heard from the court handling Danny Masterson’s criminal appeal that they accepted a 35,500-word initial brief from Masterson’s attorney Cliff Gardner.

Masterson was convicted of two counts of forcible rape and taken into custody on May 31, 2023. He was sentenced three months later to 30 years to life in state prison. He’s currently being held at the California Men’s Colony at San Luis Obispo. He filed notice of appeal soon after the conviction, and now his attorneys have filed their brief, asking the court to reverse the conviction and free Masterson (based on some of the arguments in the brief) or to remand his case for another trial.

We had earlier posted the longer version of the brief that Gardner published at his website, but we have now replaced that with the trimmed version that the court has accepted.

But what’s in it?

Gardner touches on numerous areas, but the brief has several main arguments.

— It goes over the testimony of the three complaining witnesses — the three Jane Doe victims — in great detail in order to highlight differences in their accounts over time. This actually surprised us, because all three were heavily cross-examined on these issues during the trial and the jury still convicted on two of the three counts. Is this the best use of an appeal, to attempt to retry the case on its facts?

— Another big focus is on the way the statute of limitations was avoided by grouping these counts together under California’s “one strike” law. Gardner argues that the legislature never intended for the law to be used this way, and end up with 15-to-life sentences for crimes that would have carried terms of more like 8 years if the had been tried separately at the time they occurred, in 2003. We remember that Masterson’s defense attorneys repeatedly made similar arguments about how the DA’s office was bringing the case to avoid the statute of limitations, but the court repeatedly sided with prosecutors.

— If you remember, during our trial coverage, we felt that perhaps the most stunning single moment during the second trial was Detective Esther Reyes/Myape being asked by the prosecution if she thought the Jane Does had contaminated the case. During both trials, the defense had been portraying Det. Myape like she was their star witness because she had warned the women not to talk about the case with each other. In the second trial, the prosecution simply asked her, even if the Jane Does had talked, had they contaminated the case? And she said no. It seemed like a devastating moment for the defense, and Philip Cohen then treated Det. Myape like a hostile witness. Now, Gardner argues that the judge should not have allowed the prosecution to ask Det. Myape that question. Also related to this, Gardner says the court erred by quashing the defense’s subpoenas for communications between the Jane Does.

— Gardner also argues that the defense should have been able to emphasize the financial incentive the Jane Does had. He’s referring to California law, which allows a victim up to a year to sue someone after they have been convicted of a felony. The jury should have been told about that incentive, Gardner says.

— Gardner says it was a mistake for the court not to grant a delay so the defense could prepare for the new witness in the second trial, Kathleen Jenkins, who was flying in from Toronto. Because she was in Canada, it made preparing for her testimony and getting documents more difficult, and the defense should have been granted a delay.

— And also, Gardner argues that Masterson’s religious rights were infringed by a court hostile to Scientology. You will probably remember that Judge Olmedo allowed in more testimony about Scientology in the second trial, including the testimony of expert Claire Headley. Gardner argues that this was a mistake and prejudicial to Masterson. Similarly, Gardner says the court erred by allowing the women to describe the harassment they say they’ve been through and that they believe was carried out by Scientology, which is the subject of the civil lawsuit.

OK, so we wanted to get some sense of how persuasive these arguments might be by consulting an actual appellate attorney.

TX Lawyer has been an active member of the Underground Bunker for several years, and a real help with legal matters. We sent him the version of the brief that the court accepted, and asked him for his thoughts.

This is a very professional appellate brief. No criticism from me on the quality of the lawyering here. It’s a credible appeal, which I did not really expect to find after Danny was found guilty. Cliff Gardner appears to be a very good attorney.

That said, I am a bit flummoxed at the extended focus on the various iterations of the victims’ stories, as I just don’t think the appellate judges are going to think it’s particularly unusual for victims to recount things differently over time – particularly in light of the strong evidence that they were drugged or otherwise incapacitated at the time of the events. The brief also doesn’t make much of any attempt to prebut what the state is going to say to buttress their credibility in response.

The statute of limitations argument still strikes me as plausible, although I also think the defense is more likely to lose it than not. Having multiple victims just does not seem like an “enhancement” to me. But there is enough ambiguity in those statutes that reasonable judges could conclude otherwise. And importantly, it’s not a retrial issue if the appellate court sides with Danny on limitations. He just goes free.

I am still unpersuaded by the financial interest evidence that got excluded, because my recollection of your blogging of the trial is that there was still plenty of that evidence that did get presented to the jury. I think all three of the Jane Does got crossed on that subject. The jury heard that they stood to profit through their civil lawsuits, and they obviously didn’t think it raised enough of a doubt to acquit. The brief just focuses on this marginal question of what conviction in the criminal case would do to the statute of limitations in the civil lawsuits, which seems really peripheral. Judges have plenty of discretion to exclude evidence that’s overly cumulative or of marginal relevance, and Due Process doesn’t make inadmissible evidence admissible. Also note that Danny only gets another retrial if the appellate court surprises me by concluding this is reversible error.

The stuff with Detective Myape seems like it has some merit because she really should not have been testifying as to her opinion whether cross-contamination occurred. The prosecutor should have just asked Myape whether she was aware of any cross-contamination happening from the victims talking with each other. But it seems like a really minor point, and I’m not even sure the defense objected to the question at the time to preserve it for appeal. And again, this is a retrial issue rather than Danny walking free.

I can’t really say much about the denial of the defense’s request for subpoenas to the Jane Does for their communications, because I don’t know California criminal procedure. But discovery is always quite limited in criminal cases, and trial judges have broad discretion to make decisions on issues like this. If the state can come up with any reasonable basis for the judge to have quashed the subpoenas, this issue goes away. And it’s remand again, not render judgment for the defense.

The continuance/effective assistance of counsel argument, regarding the witness from Canada, is a loser. Trial courts have tons of discretion in managing their schedules, and two (and really more like four) weeks is plenty of time to prepare to cross an unexpected witness.

The Scientology evidence seems plainly relevant and admissible to me because the defense repeatedly raised the Jane Does’ delays in reporting or disclosing the rapes meant they were not credible. And though the brief tries to argue that the judge improperly ruled that Scientology was relevant to whether Danny committed the alleged crimes, that’s just because he was attacking their credibility. No evidence was offered that Scientologists are rapists or whatever. And its admission doesn’t violate the ecclesiastical abstention doctrine because the evidence wasn’t about judicially determining what Scientology doctrine was, but rather about the witnesses (and Danny’s) state of mind.

Finally, I think the limited harassment testimony was also relevant to the witnesses’ state of mind, because even if they’re mistaken about some of it they still believe it. And the defense doesn’t have to get into specific incidents to cross them on it. No arrests were ever made, they don’t know the identities of any of the people who are supposed to be doing it, etc. Again, this seems like pretty marginal stuff.

— TX Lawyer

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