Danny Masterson wants rape charges thrown out, citing our jury foreman interview

[Danny Masterson and his attorney Philip Cohen during the trial]

Ahead of Tuesday’s hearing in Los Angeles, Danny Masterson’s legal team has filed a motion to dismiss his rape charges based largely on what was said in an interview conducted with the jury foreman from the first trial, which ended with a hung jury on November 30.

That interview was conducted by Chris Shelton and your proprietor, and was posted here on December 8.

At the trial, the jury was unable to come to unanimous verdicts on all three counts of forcible rape that Masterson was facing, with splits of 10 to 2 for acquittal (Jane Doe 1), 8 to 4 (Jane Doe 2), and 7 to 5 (Jane Doe 3). The jury foreman told Judge Charlaine Olmedo that those numbers weren’t budging after days of deliberations, and so she declared a mistrial.

A few days later, Shelton learned that the jury foreman’s daughter was a fan of his work and was also a reader of the Underground Bunker, and she encouraged her father to give us the interview.

In the interview, we went through each of the three cases, as well as the testimony of Jane Doe 4, actress Tricia Vessey, to find out what disagreements the jurors had. We were surprised to learn, for example, that the jury had essentially disregarded the Scientology component in the cases, and also the testimony by the prosecution’s expert, Dr. Mindy Mechanic, who explained that women who are attacked by someone they know, or someone they are in a relationship with, will react very differently than women who are attacked by strangers.

But we told the foreman that we were generally impressed that the jury had carefully considered the evidence in the case and had taken their task seriously, even if they could not come to agreement and unanimous verdicts.

Now, Masterson’s attorneys Philip Cohen and Karen Goldstein are trying to convince Judge Olmedo that the juror’s observations, and our comments to him, suggest that a retrial, currently scheduled for March 27, would not change matters and so charges should be dismissed.

Immediately following the pronouncement of a hung jury, the deliberating jurors, as well as the alternate, spoke freely and candidly in the jury room with all trial counsel. The clear sentiment of the jurors, virtually to a person, was that there were significant evidentiary and credibility problems with the government’s case. And while there was disagreement as to the ultimate vote, on one thing the jurors all appeared to agree — no reasonable jury was ever going to come to a unanimous finding of guilt on any count.

Shortly thereafter, on December 8, 2022, the jury foreperson gave a lengthy recorded interview to one of the daily trial commentators, Tony Ortega. In that interview, the foreperson provided specific details as to how the jurors approached and undertook the deliberative process and what evidence was important to their conclusions. The insight provided by the foreperson during this interview confirms what the post-trial discussions of the jurors with all counsel had indicated — this was a conscientious, thoughtful, and deliberate jury which took its job and its individual opinions with all seriousness, and its vote totals resulted from such seriousness rather than from any bullying or browbeating from one or two of its members. And, as a review of the foreperson’s interview reflects, the way in which these deliberations were conducted (deliberations which ultimately consisted of 14 independent and voting jurors) supports exactly what the vote tally reflects — the likelihood of conviction on any charges at a retrial is low.

Cohen later singles out our praise for the juror’s descriptions of how the jury had deliberated.

Even Mr. Ortega (the interviewer and a trial spectator who appeared less than favorable to the defense case throughout his trial commentary) had to commend the jury for how conscientiously it approached its task. Early in the interview, Mr. Ortega told the foreperson, “[I]t’s already obvious to me that you paid very close attention to the details and were back there talking specifically about the details of what you heard on the witness stand…I’m very impressed that you knew all this…”

Mr. Ortega later elaborated, “Well, it sounds like the methods you were using were really, really good.” “[I]t sounds like everyone got a chance to say what they wanted to say, that all the evidence was very thorough. I think the thing people worry about in juries is you end up with one or two people that are really unreasonable and are not participating…But it sounds like you’ve kind of got people on both sides, and that everyone was cooperating and participating.”

Similarly, after hearing the foreperson describe the jury’s process, Mr. Ortega’s co-interviewer, Chris Shelton, stated, “I’m not at all judging you guys for the decision-making process you engaged in. It sounds like you were, you were passionate, you were in there, you were interested, you were doing the work that is expected of you. And I couldn’t ask anything more.”

So Cohen concludes that because this jury took its job seriously and could not convict Masterson, another trial would be a waste of time.

What Cohen does not cite were multiple assertions by the jury foreman that the prosecutor, Deputy DA Reinhold Mueller, could have done a better job presenting the material, and that if he had it might have made a difference. And in a retrial, that’s exactly what the prosecution would take under consideration.

Cohen then runs through each of the cases, citing the issues that the jury foreman had.

Jane Doe 1 testified to Masterson brandishing a pistol during the alleged rape. But neither of the first two LAPD officers who interviewed her mentioned a gun in their reports. And Jane Doe 1 herself does not mention a gun in a 2003 written statement. (This statement, however, was written for the Church of Scientology, and Jane Doe 1 testified that she was instructed by ethics officer Julian Swarz not to include a reference to a gun.) Jane Doe 1’s testimony also differed with the initial LAPD officer about where she received a drink from Masterson, and the 2003 document differed with where she woke up the next day. Photos of Jane Doe 1 in Florida days after the attack appeared to differ from her description of being bruised and in pain.

Jane Doe 2 testified that she had gone to Masterson’s house because she felt pressured by him, but her mother had testified that she felt “excited” to go there, and the jury foreman indicated that this was an important detail to the jurors who voted to acquit. Cohen also points out that Jane Doe 2’s testimony that she feared his being violent contradicted what she told an LAPD detective. He also pointed out the jury foreman was swayed by Cohen’s argument about cross-contamination between the witnesses.

Jane Doe 3’s case was complex because it involved two separate incidents. One of those incidents, which occurred in November 2001, was the basis for the rape charge, but Jane Doe 3 had said in a statement to an LAPD detective that she didn’t “fully remember” that night. The jury foreman noted that this differed from her testimony at trial, when she described the incident in detail. Jane Doe 3 and Jane Doe 2 had post-incident contacts with Masterson that the jury found troubling, and Jane Doe 3 did not have any “fresh complaint” witnesses that she told about the attack at the time.

Jane Doe 4, Tricia Vessey, is criticized in the motion because she allowed Masterson into her house a month after she alleges that he had initially attacked her, leading to the second incident. And also because, in 2017, she had sent a text message to Christopher Masterson, Danny’s brother, indicating her support when news of the LAPD investigation broke in the press. (In an interview with us, she explained that she feared retaliation from the Mastersons and from Scientology if they believed she was part of the investigation. Part one of her interview, and part two.)

It’s Cohen’s job, of course, to make the argument that a retrial would be useless, and so it’s not surprising that he would cite the jury foreman as an authority on how well a retrial would turn out.

We’re interested in seeing what Mueller’s response is, and we’ll be in the courtroom on Tuesday to hear it firsthand.

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