Here’s Why Justice May Demand That Harvey Weinstein Goes Free

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New York Appellate judges grilled the District Attorney prosecuting Harvey Weinstein so intently this week that it appears they are poised to overturn his criminal conviction.

The thought that a man who evaded justice for so long may do so again is infuriating. Whatever joy we experienced from Weinstein’s February 2020 conviction for rape and assault now feels like an old memory of a moment when the MeToo movement proved that women have rights, and powerful people could be held to account.

But as maddening as it is that Weinstein’s conviction may be overturned, his lawyer’s arguments for appeal are sound and frustrations may be better focused on the prosecutors rather than the court. While it may appear that these are technical legal maneuvers, in fact the evidentiary questions at issue go to the core values of our legal system.

Prosecutors are supposed to prove the crimes they have charged, using evidence that shows the defendant committed the crime at issue. It is a well-established legal principle that prosecutors are not supposed to use the defendants’ character or character traits to prove that they committed the crime they are being tried for. Prosecutors and defense counsel regularly wrangle over what information is allowed to be heard by the jury in a criminal trial.

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This especially applies in cases related to sexual crimes, where evidence of defendants’ prior bad sexual acts is considered so prejudicial to the jury – making them more likely to convict regardless of the evidence of the crime they are in fact being tried for – that the correct ruling is generally to exclude that evidence.

A more typical example of these evidentiary concerns arises when prosecutors try defendants for drug sales. Prosecutors regularly attempt to bring in evidence about the defendant’s prior drug cases. To prove their case that the defendant made the drug sale that they are being tried for, prosecutors will need to use witnesses and other evidence to prove to the jury that the defendant made the sale. Prosecutors will often also bring in evidence of the defendants’ prior drug charges, with defense counsel objecting, and the trial court judge determining whether or not the jury should be permitted to hear about the prior convictions, or even charges. The determinations that judges must make often fall into two categories, rulings under Sandoval and rulings under Molineux.

When trial court judges make evidentiary rulings under Sandoval, they are determining whether the prejudicial effect of impeachment testimony far outweighs the probative worth of the evidence on the issue of credibility. In other words, does telling the jury about the defendant’s prior drug charge in order to attack the credibility of the defendant make it worth entering even if it makes the jurors associate the defendant with bad acts and therefore make them more likely to rule against them? And when they make decisions under Molineux, judges are deciding whether the evidence fits within one of the myriad exceptions to allowing evidence other than to simply demonstrate that the defendant has a propensity for bad acts.

The 2020 arrest records of New Yorkers show that 93% of those arrested for rape and 91% of those arrested for other felony sex crimes were not white. It becomes easy to see how bringing in prior bad actions may inflame jurors’ implicit racial biases, and why a criminal system that seeks justice has an interest in keeping the trial focused on the facts of the specific crime being prosecuted.

Despite the established legal principle of not using prior bad acts of the defendant to impugn their character, defense lawyers often lose evidentiary arguments in New York – both at trial and on appeal. In Weinstein’s case, prosecutors were permitted to bring in evidence regarding 28 prior bad acts, ranging from Weinstein flipping a table of food at his brother, to allegations of sexual assault outside the statute of limitations made by women who therefore could not have their crimes prosecuted.

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Although the jury was instructed by the judge not to use the evidence of prior bad acts to make an inference of Weinstein’s propensity to commit the crimes he was charged with, Weinstein’s lawyer argued that it is not possible for the jurors to have heard about all these incidents and not conclude that since Weinstein has the propensity to commit crimes therefore he committed the crimes he was being tried for. The question boils down to this: Did the jurors convict Weinstein because the prosecutors proved he committed these crimes, or did they convict him because they were convinced someone who had previously acted so abominably would commit those crimes? His lawyers are arguing the latter.

It’s a frustratingly good argument. For those of us who have followed the extensive reporting on Weinstein’s misdeeds over the decades, this argument makes intuitive sense. After learning of Weinstein’s pattern of abusive behaviors over the years, it is easy to believe that he committed any act he was accused of without hearing anything more. But this is not how the criminal justice system is supposed to work. Jurors were supposed to decide if Weinstein raped and assaulted specific women, based on the evidence relating to those incidences, not whether he is generally a bad person who does bad things and is therefore guilty of any accusation laid at his door.

While the overturning of Bill Cosby’s conviction was also infuriating, that had to do with a different, narrower set of issues involving a verbal agreement from a previous DA not to prosecute. But Weinstein’s appeal is about bigger questions that have much broader implications for the justice system and the many people without his fame or fortune who are put through it.

So yes, the prospect that Weinstein’s conviction will be overturned is maddening. But so is the fact that prosecutors gave Weinstein’s attorneys fodder for appeal rather than proving their case on its merits. If Weinstein’s conviction is overturned, hopefully the courts’ interest in overzealous prosecutions does some good for the poor, Black, and brown defendants who struggle with the same evidentiary questions every day.

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