With an appeals court overturning Harvey Weinstein's conviction in New York, all eyes are now on the veracity of a California judge's decision that led to the Los Angeles jury's decision to find him guilty of rape.
Weinstein's fate may hinge on key differences between the two states in their handling of sexual assault cases. California allows defendants to present evidence demonstrating a propensity to commit sex crimes even if the allegations do not result in formal indictments. New York State, on the other hand, allows such evidence only if necessary to provide a history of the defendant's motive, intent, or general plan to carry out the alleged crime.
If New York prosecutors fail to secure a conviction at a retrial, that nuance could change whether Weinstein, 72, is released from prison or spends most of the rest of his life behind bars. Legal Observer in Conversation The Hollywood Reporter A disgraced film mogul has said it is very likely he will appeal his conviction in his Los Angeles trial.
“It is very difficult and almost unheard of for a case to be overturned based on the introduction of a so-called innocent bad behavior witness testifying about the defendant’s propensity for sexual offences,” said Halim Dhanidina, a former Ross prosecutor. Angeles District Attorney's Office served on the California Court of Appeals.
Joshua Ritter, a criminal defense attorney and former Los Angeles prosecutor, echoed this sentiment, saying California law is “much more conducive to introducing this type of evidence” that shows propensity. He added, “Weinstein will raise the same issues on appeal, but given the legal situation, he will take a more difficult path.”
On Thursday, New York's highest court overturned Weinstein's 2020 rape conviction in a landmark ruling that could serve as a referendum on the shortcomings of the #MeToo movement. In a 4-3 decision, a seven-judge panel of the state appellate court ruled that the “trial court erroneously admitted testimony about alleged prior sexual conduct that had not been prosecuted” and that this amounted to an “abuse of judicial discretion.”
Attorney Arthur Aidala said at a press conference, “You can’t throw away 100 years of legal precedent just because someone is unpopular.” He also emphasized that Weinstein could not testify because it brought up unrelated allegations from decades ago that the appeals court ruled “portrayed the defendant in a highly prejudicial light.”
Prosecutors have argued that the witnesses' testimony demonstrates Weinstein's “state of mind to use coercive force” against his accusers and his “understanding of his accusers' lack of consent.”
It is not yet known whether the New York District Attorney's Office will pursue a retrial. Otherwise, he will likely be transferred to a California prison and, if successful on appeal, could be released. He is expected to be found guilty by a Los Angeles jury in 2022 on three charges: forcible rape, forcible oral copulation and penetration with a foreign object. Jane Doe #1 is former Russian model Evgeniya Chernyshova. In a mixed verdict, the jury acquitted him of bondage against another accuser and deadlocked on charges involving two others.
The conviction, which resulted in a 16-year sentence by Judge Lisa Renzi, was based primarily on the testimony of four women who accused Weinstein of raping or sexually assaulting them between 2004 and 2013. During the trial, four other people also claimed they had been assaulted, but their claims did not lead to formal charges. The prosecution called a total of 44 witnesses to the stand to make their case.
Weinstein's appeal, which is expected to reflect his motion for a new trial, is likely to raise arguments that allow for so-called unindicted bad behavior that he would argue jurors were improperly biased against him. He will have to address a statute in California's evidence law that explicitly allows such evidence to support claims that he has a propensity to commit sexual crimes.
During the trial, defense attorney Alan Jackson urged the jury to ignore their testimony. Prosecutors “want to use this evidence to build their case against Harvey Weinstein,” he said. “It has nothing to do with the actual evidence in this case.”
Typically, appellate court judges defer to lower court rulings on this issue, even when they would have suppressed evidence if they had overseen the case. Overturn a conviction only if there was an abuse of discretion. “The trial court is very polite,” says Dhanidina.
In Weinstein's Los Angeles trial, there were four witnesses who testified about the indicted crime and four witnesses who testified about the unindicted crime.
“This is a common occurrence in sexual assault cases,” says Ritter. “You may see cases where there is only one victim charged, but multiple unindicted victims testify about previous bad behavior. “That’s one of the reasons the LA case is so powerful.”
Nevertheless, there are cases where the trial court was found to have abused its discretion. in People vs. Jandres (2014), the appeals court ruled that evidence of attempted child abduction was not relevant to the rape charge. in People v. Harris (1998), evidence of prior violent rape is inadmissible for the purpose of proving that the accused raped an accuser who was unable to consent.
Among the controversies about allowing misdeeds without charge, there is also the fact that prosecutors can convene a trial for charges indicted by bypassing the grand jury process.
Part of the appellate court's review will consider the subject of testimony from non-indicted witnesses. Unlike the New York trial, they all testified about Weinstein's sexual assault allegations. Ambra B., who met Weinstein at Radio City Music Hall in 2015 and was encouraged to meet by her representative, said in court that Weinstein groped her own breasts and placed his hands on her skirt. He said he put it in and reported her to law enforcement. .
“There is broad discretion in determining what 1108 evidence is,” said David Ring, Chernyshova’s attorney, referring to a state statute allowing evidence of a defendant’s propensity for sexual assault. “We are very confident that California’s conviction will be upheld.”
Danidina said, “In the case of California Weinstein, the rise is quite steep,” and emphasized, “There will have to be other grounds to overturn the ruling.”
This could come in the form of a court banning Weinstein from showing the text to the jury, saying it would undermine Chernysheva's credibility. It was what Jackson called “sexually explicit” messages between her and Pascal Vicedomini, the founder of the film festival where she was raped by Weinstein. The defense argued that the purpose of introducing the texts as evidence was not to demonstrate her “promiscuity,” which is not recommended in sexual assault cases, but to ascertain her whereabouts on the night of the assault. “She can’t be trusted because she was somewhere else,” Jackson said, adding, “There was a series of mistakes that made it impossible for Mr. Weinstein to get a fair trial.”
Lench said he considered the text but that it “didn't make her testimony false.”
An alternative solution might have been to instruct the jury to ignore whether any kind of sexual activity was specified in the text and to consider it only for the purpose of determining her location on the night she was assaulted.
Another issue that could be raised on appeal is whether Weinstein improperly barred Chernysheva from cross-examining her on the grounds that she had a financial motivation for reporting the violence to law enforcement. Jackson argued to his jury that his “credibility lies on extremely thin ice.”
If Weinstein can avoid conviction in New York, he may move to reduce his sentence from the LA trial. Lench, who could have sentenced him to up to 18 years in prison, had previous convictions, so he was sentenced to a higher sentence than the maximum. The Los Angeles district attorney also cannot revisit its decision not to retry Weinstein on three charges that resulted in a deadlocked jury.
In particular, all of Weinstein's remaining convictions stem from Chernyshova, one of dozens of women who have accused Weinstein of sexual assault.
“When the LA case started, I told her that when it was all said and done, you would likely be the only victim convicted of Weinstein.” Ling said. “This case was that important.”
The Hollywood Reporter People who say they have been sexually assaulted are usually not named by name unless they come forward voluntarily. Several women who have testified against Weinstein have said they were assaulted.