Nearly four years after Harvey Weinstein was convicted of rape and sent to prison, New York鈥檚 highest court appeared torn at oral arguments Wednesday about potentially overturning the landmark #MeToo-era verdict.
Weinstein鈥檚 lawyers urged the state鈥檚 Court of Appeals to dismiss the disgraced movie mogul鈥檚 2020 conviction, arguing that the trial judge, James Burke, trampled his right to a fair trial with pro-prosecution rulings that turned the trial into 鈥1-800-GET-HARVEY.鈥
鈥淚t was his character that was on trial. It wasn鈥檛 the evidence that was on trial,鈥 Weinstein's lawyer Arthur Aidala told the seven-member Court of Appeals in Albany.
Weinstein, 71, was convicted of a criminal sex act for forcibly performing oral sex on a TV and film production assistant in 2006, and rape in the third degree for an attack on an aspiring actress in 2013. He was sentenced to 23 years in prison. Last year, he was convicted in Los Angeles of another rape and sentenced to an additional 16 years in prison.
A lawyer for the Manhattan district attorney鈥檚 office, which prosecuted Weinstein鈥檚 New York case, told the appeals court that Burke's rulings were proper and that the conviction should stand.
Weinstein鈥檚 lawyers want a new trial, but only for the criminal sexual act charge. They argue the rape charge can鈥檛 be retried because it involves alleged conduct outside the statute of limitations. Reversing the verdict would reopened a painful chapter in America鈥檚 reckoning with sexual misconduct by powerful figures. The court is not likely to rule immediately.
If the Court of Appeals were to rule in Weinstein's favour, he would remain locked up because of his California conviction. Weinstein, 71, did not attend the arguments but was said to be monitoring a livestream from the state prison where he is incarcerated, Mohawk Correctional Facility, about 100 miles (160 kilometres) northwest of Albany.
Allegations against Weinstein, the once powerful and feared studio boss behind such Oscar winners as 鈥淧ulp Fiction鈥 and 鈥淪hakespeare in Love,鈥 ushered in the #MeToo movement. His New York trial drew intense publicity, with protesters chanting 鈥渞apist鈥 outside the courthouse.
Weinstein maintains his innocence. He contends any sexual activity was consensual.
His voice booming at times, Aidala argued that Burke swayed the trial with two key decisions: allowing three women to testify about allegations that weren't part of the case, and granting prosecutors permission to confront him, if he had testified, about his long history of brutish behavior. Aidala also took issue with Burke鈥檚 refusal to remove a juror who had written a novel involving predatory older men.
Weinstein wanted to testify at his trial, but opted against it because of Burke鈥檚 ruling that would've meant answering questions about more than two-dozen alleged acts of misbehavior dating back four decades, including fights with his movie producer brother and an incident in which he flipped over a table in anger, Aidala said.
鈥淲e had a defendant who was begging to tell his side of the story. It鈥檚 a he said, she said case, and he鈥檚 saying 鈥榯hat鈥檚 not how it happened. Let me tell you how I did it,鈥欌 Aidala argued, adding that evidence of Weinstein鈥檚 prior bad behavior, "had nothing to do with truth and veracity. It was all 'he鈥檚 a bad guy.'鈥
Aidala also argued that other defendants in the state were now at risk of having their cases overwhelmed by extraneous evidence because 鈥渢he floodgates have been opened鈥 by the precedent of Burke鈥檚 rulings.
The judges hearing Wednesday鈥檚 arguments, including two filing in from lower courts because of recusals, volleyed between skepticism and sympathy for Aidala and his counterpart from the district attorney's office, appellate chief, Steven Wu.
Judge Madeline Singas suggested that the circumstances of Weinstein鈥檚 case 鈥 using his power in Hollywood to have sex with women seeking his help 鈥 may have warranted Burke's decision to allow the other accusers to testify.
But Judge Jenny Rivera wondered if the behavior the women described cleared the high legal bar for allowing additional accusers to take the stand, namely that their testimony is evidence of same motive, opportunity, intent or a common scheme or plan.
鈥淲hat鈥檚 unique about a powerful man trying to get a woman to have sex with them," Rivera asked.
Betsy Barros, a lower court judge filling in on the Court of Appeals because of recusals, appeared alarmed by Burke鈥檚 ruling allowing prosecutors to confront Weinstein about unrelated misbehavior.
鈥淚 don鈥檛 think anybody in their right mind would testify" under those circumstances, Barros observed. 鈥淪o how is this a fair trial when you鈥檙e not able to put in your side of it?鈥
Aidala said allowing the additional accusers to testify turned Weinstein鈥檚 trial 鈥渋nto three other mini-trials," burdening jurors with deciding not only Weinstein鈥檚 guilt or innocence on the charges at hand but whether he committed other alleged offenses that weren't part of the case. Weinstein was acquitted in Los Angeles on charges involving one of the women who testified in New York, Aidala said.
Wu countered that Weinstein鈥檚 acquittal on the most serious charges in the Manhattan trial 鈥 two counts of predatory sexual assault and a first-degree rape charge stemming from actor Annabella Sciorra鈥檚 allegations of a mid-1990s rape 鈥 showed that jurors were paying attention.
The Associated Press does not generally identify people alleging sexual assault unless they consent to be named; Sciorra has spoken publicly about her allegations.
The Court of Appeals agreed last year to take Weinstein鈥檚 case after an intermediate appeals court upheld his conviction. Prior to their ruling, judges on the lower appellate court had raised doubts about Burke鈥檚 conduct during oral arguments. One observed that that Burke had let prosecutors pile on with 鈥渋ncredibly prejudicial testimony鈥 from additional witnesses.
Burke鈥檚 term expired at the end of 2022. He was not reappointed and is no longer a judge.
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