TX Lawyer examines Danny Masterson's two separate bids to overturn his conviction

With this week’s court filings, Danny Masterson’s legal team is now pursuing two separate strategies for trying to reverse his 2023 conviction.

He submitted an “Appellant’s Reply Brief” to complete the briefing on his direct appeal, which has largely focused on questioning the testimony of the Jane Doe victims.

But he also filed this week a habeas petition, which claims that there is evidence that was not submitted during his trial which should be taken into consideration.

Both approaches, the direct appeal and the habeas petition, are being considered by the same court, the 2nd Appellate District of California’s appellate courts.

And once again, here to help us make sense of these documents is our expert, an appellate attorney and longtime member of the Underground Bunker community, TX Lawyer.

I will start with the Appellant’s Reply Brief on the direct appeal first, because the direct appeal has far better odds for almost any defendant than a habeas corpus petition unless the habeas is backed by newly-discovered evidence that completely and unambiguously exonerates the convicted person.

But we can’t completely ignore the habeas brief up front, because the appellate lawyers actually lead with it in their reply on the direct appeal. It is beyond strange to me that they are trying to use facts (or more accurately, allegations) from the habeas brief to try to buttress the appeal. The defense team could have called all those witnesses at trial. They didn’t, for the obvious reason that they were not credible and would get taken apart by the prosecution on cross-examination. That decision not to call them means it’s waived as an appellate issue, because the direct appeal is about the things that happened in the actual trial. Habeas is about the things that didn’t get aired at trial. You don’t appeal on the basis that a new witness has come forward two years after the trial. You file for habeas corpus when that supposedly new witness comes forward to prove that a giant injustice has occurred despite the trial and the appeal.

Think of it in terms of sports. Direct appeal is kind of like video review of plays during the game to determine whether the on-field officials were correct, incorrect, or so indeterminate that their call gets upheld anyway. Habeas is coming in years after the game is official, seeking to change the result because you just uncovered somebody claiming that the umpire was bribed, or there was new video from the stands showing the call was wrong, or there’s an expert scientific report saying that the physics of the play made it impossible to have succeeded. Habeas is not something you come up with in the middle of the in-game video review in hopes it gets you a more favorable outcome.

And leading off the reply brief in the appeal with a bunch of stuff that is completely outside the appellate record is both an invitation to not be taken seriously by the appellate court and a strong indication that Scientology is very much pulling strings behind the scenes. It reads like the Church is pretty proud of whatever it managed to dig up from its members in the post-conviction effort to spring Masterson from prison.

I had actually kind of expected the Church to wash its hands of Danny Masterson after the conviction. The story is a P.R. disaster, after all. But I think this really indicates that they are continuing to support him behind the scenes. I’ll get back to that point when we turn to the habeas brief.

On the merits, the reply brief continues to argue that the statute of limitations still ought to bar Danny’s charges because he was supposedly charged with a sentencing “enhancement” rather than the crime of committing multiple forcible rapes. The brief more or less concedes that the case law cited by the state says otherwise, but then cites its own conflicting authorities that it says means Masterson should be in the clear. I’m not going to attempt to parse the case law, but I will note that the state’s cases are much more recent than the defense’s and seem more directly applicable to the statute he was charged with. But remember, this is the one and only issue that might get Danny out of prison for good, rather than just a new trial. It is what I will be paying the most attention to if we get to hear oral argument.

Readers might also want to take a look at footnote 5. It’s a mea culpa for a botched legal hypothetical from Danny’s opening brief. I don’t recall the state pointing out the error, but it’s a rare example of attorneys fessing up to their own failure to properly understand a complicated question of law. It’s refreshing to see, and the courts definitely appreciate that kind of candor. It also makes me again wish that Boies Schiller had been more forthcoming about their AI screwups.

The remainder of the reply reiterates a bunch of the same complaints about Judge Olmedo’s evidentiary rulings. That Danny should have been permitted more evidence of the victims’ gold-digging civil lawsuit; Detective Myape’s opinion on “contamination” should have been excluded; Danny’s subpoenas for the victims’ communications shouldn’t have been quashed; Danny was prejudiced by the addition of Kathleen J. as a witness for the prosecution; Jane Doe 1 was already drunk before she arrived at Danny’s house. I still see nothing much to those complaints that is likely to result in a new trial. Judges have abundant discretion to decide what evidence is and isn’t admissible at trial, and even if they mess it up, it doesn’t necessarily get the defendant a new trial.

The actual Scientology content doesn’t start until the back end of the reply brief. It complains yet again that Scientology doctrine should have been off limits, and I still believe that’s incorrect. One of the key lines of defense was that the victims’ stories lacked credibility because they had not reported their assaults to the police right away. By making those arguments, the defense necessarily opened the evidentiary door for the state to explain why they had waited so long to report to the police, as well as the evidence that they had pretty promptly reported the incidents to Scientology and other Scientologists. And again, the jury wasn’t asked to determine the truth or falsity of anybody’s religious doctrines. They were just considering the accusers’ state of mind, which juries do all the time. The same thing applies to the complaint that the defense should have been allowed to present evidence disputing some of the harassment that ensued after the victims came forward, both because that evidence was only minimally probative and because it just doesn’t alter the victims’ state of mind at the time.

That brings me to the habeas corpus petition. I confess in advance that I have not read it in any great detail because it is both massive and massively repetitive. It’s a by-the-numbers, sling everything against the wall and hope that something sticks affair. Which I get it, you’ve got to include every issue you can think of because it’s probably the last chance your client is ever going to get. I guess it’s marginally interesting that Danny still has enough resources to support the effort. This was not cheap, and the brief is nothing if not methodical.

So here is my high-level take on this giant habeas brief: It’s mostly a litany of ineffective assistance of counsel claims, which are nearly impossible to win. Any trial record can be endlessly second-guessed, but second-guessing doesn’t get the defendant to a new trial. And a lot of this appears to be complaining about things the defense team tried to submit or argue at the time of trial, but just didn’t succeed.

But the merits content of the habeas brief raises a question for me: How much of it is being driven by the Church itself? We saw Scientology’s legal influence at various points throughout the trial court proceedings, though my impression is that the final trial team largely avoided carrying Scientology’s water for it. But a substantial portion of this habeas brief, when it’s not just casting aspersions on the victims, is alternatively demanding MORE SCIENTOLOGISTS and YOU CAN’T TALK ABOUT SCIENTOLOGY. That sure seems reminiscent of Scientology’s own twin principles: That it has the solutions to everything, but also nobody is allowed to question or criticize it.

I’ve contributed to a pro bono habeas brief. I interviewed jurors and witnesses, both factual and expert. But at the end of the day, almost all of what I wrote in the statement of facts was straight from the trial record, because that’s the field you’re playing on for habeas corpus review. Sure, I had spoken with the client to confirm the facts and to clear which issues we were going to pursue and which not. That did not mean that the legal claims we presented in the brief were being driven by the client though. It was appellate counsel — who had ingested the case lore from the transcripts and somewhat from the trial team — and the friends and family of the defendant who steered us in the direction of the issues we eventually took.

I have zero personal knowledge of who is playing that role for Danny Masterson’s habeas attorney. I cannot say who is paying him. But if my very limited habeas corpus experience is indicative, it’s the outsiders (with the consent of the defendant) who are driving the issues. And from my observation, there is a surprising amount of Scientology and Scientologists in that habeas petition. That strikes me as unlikely if Scientology were not pushing its own issues here.

I mean, come on, they want to claim ineffective assistance of counsel because the trial team didn’t call Luke Watson to exonerate Danny? That dude was up to his neck in it. The state would have destroyed him on cross-examination.

At trial, the defense team generally adopted a trial strategy of opposing evidence and testimony about Scientology. That was a reasonable strategy, because Scientology is weird and its adherents are weirdos, which the jury was unlikely to respond well to. Now, Masterson’s habeas brief essentially argues that the trial team should have called a bunch of Danny’s fellow members to testify in his defense. But while that may have been a lot of fun for us as observers, courts don’t grant habeas relief just because, in retrospect, a different legal strategy might have been more successful than the one that ended up with the defendant’s conviction.

So I basically see a bunch of second-guessing and a few things where they’ve found alleged facts that could have been helpful to the defense but that they didn’t have at the time of trial (there are always more facts beyond those than come in at trial). Habeas is almost always a very long shot, and I didn’t find anything that would disabuse me of that conclusion here.

— TX Lawyer

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Babywatch, day three: Lisa McPherson in Room 174

A little after midnight, as the third full day of Lisa McPherson’s confinement in a cabana room at the Fort Harrison Hotel was beginning, staff chaplain Valerie Demange began her first shift as Lisa’s caretaker.

Valerie had attended a year of nursing school, but otherwise she had no qualifications as a medical professional. She took over from Emma Schamehorn and then began a shift that lasted a full 24 hours.

Before she went in the room, Valerie had been told that Lisa had gone “a bit crazy,” and she was to keep Lisa from hurting herself. But when she arrived, Lisa was actually sleeping, and slept through to the morning. It was a fitful sleep, and Lisa would occasionally say something, like “Thank you.”

In the morning, Lisa ate a little — eggs and toast — and took vitamins that Emma had left for her. But she refused to drink more Cal-Mag.

In the afternoon, Lisa was pacing around the room and began to dance, asking Valerie to join her.

Through the afternoon, Lisa got more agitated, until in the evening, she lashed out at Valerie, and also tried to break the cabana’s large window after stripping down. Valerie tackled her, and couldn’t help thinking what might happen if she didn’t succeed — she thought of Lisa escaping and running down the street naked. After calming Lisa down, Valerie told hotel officials that they really needed two people in the room to handle the job.

When her long shift was done, Valerie left. But in a few days she would be back.

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