Convicting Harvey Weinstein Was No Slam Dunk

Harvey Weinstein will — in all likelihood — die in prison.

He was convicted on Dec. 19 of rape and sexual assault charges in Los Angeles, meaning that he will not go free even if his New York conviction is overturned. But for a lot of observers, Weinstein’s second trial sent an ambiguous or even discouraging message.

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Weinstein was — and remains — the face of the #MeToo movement. Yet his conviction was no slam dunk for L.A. prosecutors. Instead, the jurors took more than 40 hours to reach a decision, and unanimously believed only one of the four accusers.

“I think the #MeToo movement at one point was much stronger than it is now,” says Sam Dordulian, a former sex crimes prosecutor who is now in private practice. “The whole feeling of the #MeToo movement that if you come out in numbers, you will be believed — that didn’t pan out on this

Weinstein was found guilty of raping Jane Doe 1, a model who encountered the producer at the L.A. Italia Film Festival in February 2013. She testified that Weinstein barged into her hotel room late at night and
raped her after bending her over the bathroom sink.

She wept on the witness stand, saying she wished she had fought back more, but that she feared he would try to “beat me or kill me.”

Of the four accusers, Jane Doe 1 was the only one who did not seek professional advancement from Weinstein, and she had minimal interaction with him after the assault.

Weinstein’s defense argued that the other women all wanted something from him — a book deal, help developing a script — and that they “played the game” to get it.

On Jane Doe 2 and 4, the jury was deadlocked — though it leaned in favor of conviction on both. And on Jane Doe 3, Weinstein was acquitted.

“To me, it shows the system worked fairly,” says defense attorney Dmitry Gorin. “They looked at each one independently. They could have said, ‘If there’s smoke, there’s fire. He’s guilty of everything.’ But they meticulously examined the evidence in the case, which was why it took so long.”

A fifth accuser, Jane Doe 5, was dropped from the case midway through the trial for reasons that were not explained. The prosecution also called four women to serve as “prior bad acts” witnesses.

In a strange twist, the jurors at one point asked Judge Lisa B. Lench if they could use the “prior bad acts” testimony to support a not guilty verdict on the charged counts, defense attorney Mark Geragos points out.

That suggested that — at least for some of the jurors — the abundance of accusers was more harmful than helpful to the prosecution’s case.

“Harvey was the catalyst for #MeToo, and ultimately at the end of the day #MeToo boomeranged,” Geragos says. “#MeToo was turned inside out — the quantity undermined the case.”

Geragos notes that Jennifer Siebel Newsom — Jane Doe 4 — maintained a friendly relationship with Weinstein for years, asking him for campaign contributions and for advice on how to handle the press when her then-boyfriend, Gavin Newsom, was caught up in a sex scandal.

“At least a number of the jurors were not buying anything she was selling,” Geragos says.

Dordulian suggests the fact that the jurors believed some women but not others might discourage others from coming forward.

“Now they’ve just had a bunch of people tell them, ‘I don’t believe you,’” he says. “That’s a hard reality for survivors of sexual abuse.”

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