Danny Masterson Rape Trial

Will Danny Masterson Be Retried in the Event of a Deadlocked Jury?

LA Times Photo and Drawing

Friday, November 18, 2022. 

We have been at the Downtown Los Angeles Criminal Court watching the trial of Danny Masterson since it began. We missed a few days due to prior commitments, but watched all of the Jane Does and several other witnesses testify included the LAPD officers. We took about 70 pages of detailed notes before the case went to the jury. We have made no prediction on which way the jury would go because there is no way to tell what a jury will do.

There seemed to be an unspoken consensus that the jury would bring in a verdict before the beginning of the long Thanksgiving week holiday here in the US.

Based upon this consensus, no one expected the jury to send a note telling Judge Olmedo at 2PM on the Friday when the long holiday begins that they could not reach a unanimous decision on any of the counts for any of the three Jane Does.

The Judge instructed the jury to stop for the day and come back on November 28 to resume deliberations. This gives the jurors 10 days off for the holiday. This is surely a needed relief for jurors who just sat through what was a very intense 30 day trial.

Danny Masterson looked extraordinarily stressed and his wife Bijou had tears welling up in her eyes when Judge Olmedo ordered Masterson to report back to court on November 28. Danny and Bijou have been living with the rape allegations and the rape charges for several years. And now the jury has 10 days to think about this case over the holiday. People can change their minds in 10 days.

Danny Masterson fully expected to be found not guilty on all three counts of forcible rape. That is why he chose a criminal trial instead of taking a plea deal. His attorney Phillip Cohen made the decision to not put on a defense; did not put on any witnesses; and Masterson chose not to take the stand and testify.

Based upon his decision to not put on a defense, Cohen’s obvious reasoning was that the State had failed to prove beyond a reasonable doubt that Masterson forcibly raped the three women.  Cohen made a big bet that all he needed to do was to create reasonable doubt in the minds of the jurors and his client would walk free.

Cohen’s big bet failed miserably inasmuch as the jurors sent the Judge a note saying they could not reach a unanimous decision on any of three counts. Cohen failed to convince the entire jury that there was reasonable doubt. Cohen got it all wrong and there went about $2 million of Danny Masterson’s money spent on legal bills down the drain. That is our estimate of what Masterson has spent on legal bills since he was arrested and booked on June 17, 2020.

The extraordinary stress we saw on Danny Masterson’s face today in court suggested to us that initial state of shock, rage, and betrayal experienced by someone who feels like they were just stabbed in the back by their overconfident attorney. While attorneys never promise their clients anything, it seems to us that Cohen clearly gave Masterson the impression that the State had no case and the odds were good that Danny would walk.

Our summary is accurate because it is the strategy Cohen used: Present no case, have Masterson remain silent, and trust the jury to see that the State did not meet its burden to prove the case. Cohen thought his closing argument alone would convince the jury.

When everyone was called into the courtroom at 1:50 PM today the sense was that jury had reached a verdict. Danny Masterson was talking to Karen Goldstein at the defense table and appeared smiling and relaxed.

Having spent many long hours in court watching cases and taking notes, what stood out to us was that there was only one Deputy in the courtroom. Normally, when a verdict in a criminal case is announced there are many Deputies present. This is because if a guilty verdict is announced the now-convicted defendant and his or her family members can become overwhelmed with emotion and even violent.

The opposite can also happen when a defendant is found not guilty and the victim(s) and their family members can become outraged. The many Deputies are there to protect everybody and preserve order. We have seen people arrested in court and it usually take several deputies to subdue someone who is fighting. The lead Deputy will order everyone to immediately leave the courtroom when this happens.

But there was only one Deputy present this afternoon. This is when we knew there would be no verdict forthcoming.

Judge Olmedo entered her courtroom and took the bench at 2:00 PM. The jury did not enter. She then made her announcement about the jury being at an impasse and that she would send them home with an order to return on November 28, 2022 at 9:00 AM.

It is fair to say that no one in the courtroom expected this outcome. The click-clack of laptop keyboards from the assembled media in the back of the courtroom was all that could be heard.

The best Danny Masterson can hope for is a deadlocked jury. This is how it seems now at least. However, things can change after the jury has 10 days off. The jury may come back refreshed after their holiday and find themselves in a more cooperative mood. The trial lasted a month and that takes a toll on jurors.

However, if the jury returns and send another note to Judge Olmedo saying they cannot reach a decision after spending additional time deliberating, Judge Olmedo will make a ruling on a mistrial.

What happens if the jury deadlocks and Judge Olmedo is forced to declare a mistrial?

As TX Lawyer explained in comments on the Underground Bunker, the State gets an automatic retrial in the event of a mistrial. In this situation, the criminal charges against Danny Masterson remain in place as they have not been decided in a jury trial. Danny Masterson would remain free on bail.

The LA District Attorney’s Office would then make a decision about a retrial. If the majority of the deadlocked jury was leaning towards finding Masterson guilty, the DA would likely proceed with a new criminal trial. There are other factors that would affect the decision. We want to see a retrial if needed because the Jane Does deserve justice if the present jury is incapable of making a unanimous decision.

Phillip Cohen repeatedly asked for a mistrial during the Masterson trial because he wants a new trial. If anything, a new trial would free Cohen from the mistakes made by Thomas Mesereau. It would also allow Cohen to sharpen his defense strategy. But a new trial cuts both ways as it would allow the State to sharpen its strategy.


Danny Masterson’s booking document:

3 replies »

  1. I would suspect that if it comes to a mistrial and if the state decides to retry, the defense will also most likely try to further delay things as much as possible with hail-Mary motions about double jeopardy and the like. Other than having the wonderful upside of ratcheting up billable hours these motions will allow the defense to further emphasize how ancient the alleged offenses are, and how questionable everyone’s recollections has become. Plus, let’s face it: If masterson gets convicted he may well be in prison for the rest of his life. So anything they can do to make the “rest” as short as possible…

  2. I’m no stranger to dealing w/bail. Highest mine was was $150,000 (fake charges dropped) which you have to pay ten percent of. Seeing the 3 million dollars on that form was freaky!

  3. Philip Cohen did put on a defense… in all the cross-examinations. One of the main reasons a defendant might not testify is that if he does the prosecution gets to cross-examine him on the stand. It’s risky.

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