A mistrial was called Wednesday in the criminal rape trial of That ’70s Show” star Danny Masterson, a stunning result for the jury that was frustrated and deadlocked going into the Thanksgiving break – then shaken up when two jurors caught COVID and were replaced with alternates.
Prosecutors have the option of scheduling a new trial, and the judge set March 27 as the date to start fresh, with a Jan. 10 status hearing next. But the result of this trial would do nothing to encourage prosecutors, who also have the option to drop the matter – because even with fresh jurors, the vote wasn’t close.
The new jury, after indicating once again in a note Wednesday that they were nowhere near unanimous, was called into the courtroom Wednesday and, at the judge’s request, revealed the current state of their votes: For count one, two guilty and 10 not guilty; for count two, four guilty and eight not guilty; and for count three, five guilty and seven not guilty.
To get a conviction, the jury needed to find Masterson guilty in at least two of the cases – California’s statute of limitations does not allow the prosecution of individual sexual assault charges as old as these. And without even a simple majority to convict on any charge, it seems unlikely the District Attorney to run the same trial without new evidence or witnesses.
Masterson and his family were subdued in their reaction – perhaps because there’s still the possibility that, if prosecutors have the will, they will be back in four months to do it all over again. But the result was certainly a win for defense attorney Phillip Cohen, who argued, re-argued, and argued some more for a mistrial on what seemed like a daily basis.
Cohen gave a press conference after the gavel and was asked about Masterson’s reaction.
“You don’t know how a trial’s going until you hear what a jury has to say,” Cohen said. “And as confident as he is in his lawyers, you never know what a jury’s thinking. So there’s a lot of relief on his part, obviously, but there’s potentially still a fight ahead. And we may have to do this thing again and hopefully what the jury indicated in this case will be looked at by the District Attorney’s office.”
The original panel deliberated nearly three full days before the holiday break, and on Nov. 18 sent a note to Judge Charlaine F. Olmedo saying they couldn’t reach a unanimous decision on any of the three charges. The judge replied that they hadn’t deliberated long enough, and ordered them to get back at it after taking Thanksgiving week off.
But with two symptomatic, positive-testing cases among them upon their Monday return, two alternate jurors were seated and Olmeda instructed the new panel – now six men and six women – to start from scratch. On day two, observers noted an uptick in the panel’s energy and mood, which had been grim and composed before taking the week off. Jurors’ requests to hear a read-back of testimony from Jane Doe 1 seemed to indicate that they might be nearing a verdict.
But by late Wednesday, it was clear that nothing had really changed: “After thorough and considerable discussion, it is clear that we as jurors are adamant about maintaining our individual positions on each of the three counts,” the panel wrote to the judge.
Over several weeks of testimony, three different women told jurors that Masterson raped them at his Los Angeles home in separate – but chillingly similar – incidents between 2001 and 2003. A fourth Jane Doe had also testified as a support witness, but her allegations were not among the charges.
Masterson faced a maximum sentence of 45 years to life in prison. With only a slim likelihood that prosecutors would try him again, he was free to go Wednesday on the same $3.3 million bail that was set at his arraignment.
In the event a re-trial is called, Cohen expressed a high degree of confidence in this jury’s strong sentiment to acquit.
“I think given the facts in this case, the testimony in this case, the evolution of statements in this case, I think it would be very difficult to find 12 people who truly considered this case to convict,” he said.
Masterson’s family members and a large entourage of well-dressed Scientologists had been lingering at the courthouse since before the holiday break awaiting the verdict. Masterson was seen with wife Bijou Phillips and family members passing the time on the benches outside the ninth-floor courtroom; once deliberations began, he was no longer wearing one of the ties he had worn daily with the jury present in court.
Closing arguments began Nov. 15, with prosecutors wrapping more than a month of testimony by painting the “That ’70s Show” star as an entitled “upstat” – a Scientology term for the church’s highest-ranking members – who sexually attacked young, vulnerable women by bulldozing through clear boundaries, knowing his status would protect him from consequences.
Common threads ran through the testimony of all four women: Each said Masterson was aggressive and commandeering, that he served them at least one alcoholic beverage before the assaults, and that he sexually penetrated them without consent as they later drifted in and out of consciousness. Three of the women, including a former long-term girlfriend, were Scientologists; Jane Doe 4, a non-charged witness called at the 11th hour, was not.
Masterson’s defense team, which has maintained the actor’s assertion that the relations were entirely consensual, did not call any witnesses. And Masterson – who showed little to no emotion and would often stare intently at witnesses as they spoke on the stand – did not testify.
Masterson was formally charged in 2020, but allegations first came to light in 2017 when a blogger covering Scientology reported that detectives were investigating the actor after three women came forward with accusations of rape and assault. The women each claimed they came into contact with Masterson in the early 2000s through the Church of Scientology, and were pressured by church officers to keep quiet.
Scientology has denied any such pressure campaign or policy exists, declaring in a statement as the trial began: “The Church has no policy prohibiting or discouraging members from reporting criminal conduct of Scientologists, or of anyone, to law enforcement. Quite the opposite. Church policy explicitly demands Scientologists abide by all laws of the land.”
A civil lawsuit filed by the Jane Doe witnesses (and one spouse) in 2019 against the Church of Scientology, its leader David Miscavige and Masterson tells a different story. That pending suit, which was put on hold while Masterson’s criminal trial played out, details allegations of stalking and harassing at the hands of Scientology members after the women reported Masterson and left the church.
Judge Olmeda made it clear early on that Masterson’s rape trial would not become about Scientology, and limited the scope of prosecutors’ questions about the organization. But state’s attorneys successfully argued that a church suppression campaign helped explain why the women took so long to contact police, and all three Jane Does testified that Scientology ethics officers told them it wasn’t rape, or that they had “pulled it in” – the term for being solely responsible for bad things that happen to oneself.
At one point Jane Doe 3 became highly emotional in court, hyperventilating as she testified about a “terror campaign” that she said Scientology was still pursuing against she and her husband. Though she was not allowed to share details from the witness stand, the civil case is packed with examples, from being followed and verbally harassed and threatened by Scientology members to car vandalism, credit-card theft, pet poisoning, device hacking and high-tech surveillance tactics.
The church has called those allegations “ludicrous and a sham.” If Masterson ultimately goes free, 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 he lost last month in New York.
Those were just two of four Hollywood sex-assault cases that coincidentally converged around the five-year anniversary of the #MeToo movement: Kevin Spacey wriggled out unscathed from the New York civil lawsuit brought by Anthony Rapp for an alleged 1986 assault, but still faces criminal charges in the U.K.; Haggis had a different outcome, as a civil jury ordered the “Crash” director to pay $10 million to a former publicist who accused him of rape in 2013.
Meanwhile the Los Angeles criminal trial of Harvey Weinstein, taking place just down the hall from the Masterson case, is nearing its conclusion.
