The crowds inside the Clara Shortridge Foltz Criminal Justice Center are considerably thinner these days. The building is soaked in new safety measures put into place due to the ongoing coronavirus pandemic. The security check point on the first floor no longer has a line out the door. The elevators, normally filled to the brim with all kinds of people — lawyers,  civilians, staff — have stickers on the four corners of the floor indicating where people should stand. It’s easier to take the stairs.

Despite the considerable drop off in the population, on the morning of September 18, there is a bustle of activity on the ninth floor. The reason for the crowd — unusual for the new normal of Covid-19 — is actor Danny Masterson, famous for his role in the sitcom That 70s Show. This is Masterson’s first court appearance on a criminal indictment for allegedly raping three women in 2001 and 2003. These incidents are alleged to have happened just as the sitcom reached national attention, and he became a household name among the show’s millions of fans. 

Before his hearing, Masterson stands in the hallway with around 20 of his friends and family, an eclectic bunch that shields him from prying eyes and ears. Much of the crowd beyond his entourage doesn’t pay him much attention. Everyone is here for a reason, and no one stands out, except for the members of the media. Wearing credentials around their necks or off their belt loops, there are perhaps 15 reporters, photographers and videographers discussing with Sheriff’s Deputies the coverage protocols of today’s proceedings. There is some tension in the air as the crowd around the door to Department 30 huddles while respecting six-feet spacing rules.

Masterson’s grooming and wardrobe project respect. He wears a  well-tailored cornflower blue suit. His thick mop of hair is brushed back off of his forehead. His gray, tight-fitting mask carries the Safe+Mate brand which is currently running a philanthropy campaign: for every mask sold, they donate a mask to someone in need. And finally, on his left ring finger, a wedding ring.

Masterson’s team includes celebrity-litigator Thomas Mesereau Jr., wearing a dark blue suit and his iconic shock of white, shoulder-length hair. Mesereau is known for defending Michael Jackson in his 2005 child molestation trial (at which Jackson was acquitted on all counts), as well as Bill Cosby in his sexual assault re-trial (at which Cosby was convicted on all counts). Mesereau’s co-counsel is Sharon Applebaum, a former Manhattan prosecutor. 

Because of the court’s strict social-distancing requirements, which appear to be enforced much more strictly in the courtroom than in the hallway, only a select few of Masterson’s entourage are allowed to enter Department 30. The rest of his party is guided to a spillover room equipped with an audio feed of the proceedings. Sheriff’s deputies move in and out of the courtroom relaying information to the litigants and the press and making security accomodations for the entry of two of Masterson’s accusers who will attend the hearing. 

Finally, nearly two hours after the 8:30am scheduled start time, the courtroom doors open for the Masterson hearing. 

Superior Court Judge Miguel Espinoza, a man in his early forties with short black hair, black-rimmed glasses and a black mask, presides from behind plexi-glass. Masterson, with Applebaum and Mesereau flanking him, stands at the defendant’s podium to the judge’s left. To the judge’s right, Deputy District Attorney Reinhold Mueller stands at the prosecutor’s podium.  Two of the alleged victims are guided into a corner of the courtroom.

In the back of the courtroom stand two still photographers and two videographers, including Crime Story’s Kary Antholis. They are the subject of the very first motion. The defense team seeks to prevent the proceedings from being recorded by the media, arguing that video and photo coverage would unfairly prejudice a jury against Masterson. Mesereau also suggests that the District Attorney’s office has filed these charges for political reasons, and that photography and footage would contribute to “the circus-like atmosphere that have pervaded this case.”

Deputy DA Mueller declines to weigh in on the presence of cameras in the hearing but categorically rejects the suggestion that politics played any part in Masterson’s prosecution. Judge Espinoza considers the motion and rules that the seriousness of the allegations warrants the presence of cameras. He calls for a brief break to allow the cameras to be set up in the expansive well between the judge and the litigants.

After the camera operators have taken their positions, Judge Espinoza announces that the defense has filed a demurrer, or motion to dismiss, asserting that Masterson’s prosecution is barred by the statute of limitations. We will follow up with an analysis of that motion and other details about this case in the coming weeks. But for now, Masterson’s arraignment and plea entry has been postponed for a month. Though Mesereau emphatically adds, “He is absolutely not guilty and we’re going to prove it.” Masterson then waives his right to appear at the next hearing. Rather than potentially expose himself to the chaos, media spotlight, and germs associated with the courthouse, Masterson seems inclined to take full advantage of the $3.3 million in posted bail, and wait out the next hearing at home.

Next, the Judge rules on competing motions for protective orders. Espinoza immediately grants a motion for a protective order by witnesses in the case, mandating that Masterson “must not harass, strike, threaten, assault, follow, stalk, molest” or otherwise intimidate any of the protected individuals, and that Masterson, who is reportedly an avid gun collector, must relinquish all of his firearms. And then the litigants offer oral arguments on the defense team’s motion for a protective order to seal the case file and prevent the LAPD, the DA’s office, Masterson’s accusers and other potential witnesses from revealing discovery and evidence to the media. This motion seems to reprise Mesereau’s earlier assertion that District Attorney Jackie Lacey has filed this case to boost her campaign for reelection, and that the protective order is necessary to protect the defendant’s rights. The motion states that “there is a reasonable likelihood that dissemination of information concerning the case would make it difficult to empanel an impartial jury and would tend to prevent a fair trial for Mr. Masterson.” 

Deputy DA Mueller argues that the requested protective order is “grossly overbroad” — as it would require the expenditure of judicial resources and impact parties beyond the control of the court — and “premature” as the defense has just received discovery in the case. 

Applebaum responds that the court has ample authority over the prosecution and the witnesses to make such an order.

This raises a compelling question: Should celebrities who face criminal charges be afforded special media-related accommodations to protect their right to a fair trial? 

Judge Espinoza states that he has considered this motion using two different standards to determine whether such a protective order is necessary. At the defense team’s request, he says, he has reviewed and adopted “the reasonable likelihood test” evaluating whether “there is a reasonable likelihood that dissemination of information concerning the case” would make it “difficult to empanel an impartial jury and to prepare a fair trial for Mr. Masterson.”  Espinoza notes that he has also assessed whether there is a ‘clear and present danger’ to Masterson’s right to a fair trial.

Tom Mesereau is accurate when he says that these charges have created a “circus-like atmosphere” around his client. And it seems reasonable to assert that Masterson’s fame should not work against him at trial. However, as Judge Espinoza noted earlier in allowing cameras to cover the proceedings, these are serious charges and it is important that these allegations are adjudicated with as much transparency as possible. And so any restrictions on the public information available in this case must be evaluated very carefully.

Espinoza then renders his decision:

“Under either standard, such orders are considered an extraordinary remedy and one that must be relied upon only when a sufficient showing has been made. At this stage of litigation, based on the representations of defense counsel and a case law set forth in the defense moving papers [Near v. Minnesota], the court does not find that a sufficient showing has been made to support such an extraordinary remedy and therefore the request for a protective order in this case is denied without prejudice.”

And so Masterson’s efforts to secure a court-ordered veil on these proceedings have failed. It seems that the fame and success that has afforded him his high-powered representation and support will, for at least a little while longer, expose him to media coverage that could potentially prejudice potential jurors in his criminal trial.

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