Harvey Weinstein’s Conviction Was Fragile From the Start

The overturning of Harvey Weinstein’s New York sex crimes conviction on Thursday morning may feel like a shocking reversal, but the criminal case against him has been fragile since the day it was filed. Prosecutors moved it forward with risky, boundary-pushing bets. New York’s top judges, many of them female, have held rounds of pained debates over whether his conviction was clean.

“I’m not shocked,” said Deborah Tuerkheimer, a former Manhattan prosecutor who is now a law professor at Northwestern, in an interview. The issue of whether Mr. Weinstein’s trial was fair “is a really close question that could have gone either way.”

Outside the justice system, evidence of Mr. Weinstein’s sexual misconduct is overwhelming. After The New York Times revealed allegations of abuse by the producer in 2017, nearly 100 women came forward with accounts of pressure and manipulation by Mr. Weinstein. Their stories sparked the global #MeToo reckoning.

But while Mr. Weinstein’s alleged victims could fill an entire courtroom, few of them could stand at the center of a New York criminal trial. Many of the horror stories were about sexual harassment, which is a civil violation, not a criminal one. Some were from out of state, especially California. Others fell beyond the statute of limitations. One of the original accusers was dropped from the trial because of allegations of police misconduct.

Manhattan prosecutors, under pressure for not pursuing charges earlier, made a series of gambles.

First, they proceeded with a trial based on only two victims, who accused him of sexually assaulting them but also admitted to having consensual sex with him at other times — a combination that many experts say is too messy to win convictions. To prove their case against Mr. Weinstein, who denies all allegations of non-consensual sex, the prosecutors had little concrete evidence.

So to persuade the jury, the lawyers turned to a controversial strategy that would ultimately lead to the conviction’s undoing. They put additional women with accounts of abuse by Mr. Weinstein — so-called Molineux witnesses — on the stand to establish a pattern of predation. The decision seemed apt for the moment: In a legal echo of the #MeToo movement, Mr. Weinstein was forced to face a chorus of testimony from multiple women.

The women’s testimony was searing, and when Mr. Weinstein was convicted in 2020, and then sentenced to 23 years in prison, it looked like the prosecutors had expanded the possibilities for holding sex offenders accountable.

“I did it for all of us,” Dawn Dunning, who served as a supporting witness in the trial, said in an interview afterward. “I did it for the women who couldn’t testify. I couldn’t not do it.”

But because New York law is open to interpretation on when those witnesses are allowed, the move risked violating a cardinal rule of criminal trials: Defendants must be judged on the acts they are being charged with.

That became the main basis for Mr. Weinstein’s repeated appeals of his conviction. For years, his lawyers have argued that his trial was fundamentally unfair, because it included witnesses who fell outside the scope of the charges. In addition to the alleged sexual assault victims, prosecutors brought in character witnesses who portrayed Mr. Weinstein as a capricious, cruel figure.

In 2022, a New York appeals court dismissed those concerns and upheld his conviction, after a vigorous debate by the judges. They wrote that the testimony from the additional witnesses had been instrumental in showing that the producer did not see his victims as “romantic partners or friends,” but that “his goal at all times was to position the women in such a way that he could have sex with them, and that whether the women consented or not was irrelevant to him.”

This February, when New York’s highest court heard the producer’s last-chance appeal, the proceedings did not garner much attention. But they felt quietly dramatic: Seven of the state’s highest judges, four of them women, were debating whether the man whose alleged offenses formed the cornerstone of the #MeToo movement had been treated fairly in court.

Today the court decided, with a majority that included three of those female judges, to throw out the conviction and order a new trial. Mr. Weinstein remains convicted in California and could be moved to prison there.

“We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes,” the judges wrote in their decision on Thursday.

“No person accused of illegality may be judged on proof of uncharged crimes that serve only to establish the accused’s propensity for criminal behavior,” the opinion continued.

But the decision landed by the slimmest of majorities: 4 to 3, with stinging dissents from judges who said they feared the implications of the court’s ruling. “The majority’s determination perpetuates outdated notions of sexual violence and allows predators to escape accountability,” Judge Madeline Singas wrote, adding that witness rules had evolved to be more flexible. “By ignoring the legal and practical realities of proving a lack of consent, the majority has crafted a naive narrative.”

Reached by phone a few minutes after the court shared its decision, Ashley Judd, the first actress to come forward with allegations against Mr. Weinstein, was unwavering in her own judgment. “That is unfair to survivors,” she said of the ruling.

“We still live in our truth,” she said. “And we know what happened.”

The heated back-and-forth from the New York judges, and the early reaction to the decision, launched fresh debate about whether the ground rules for sexual misconduct convictions need to be updated.

“The #MeToo movement showed how important it is to have accounts from multiple accusers,” Ms. Tuerkheimer said. But witness rules — which are strict for a reason — can leave courtrooms an “alternate universe in which evidence relevant to sex crimes is often kept from the jury.”

“There’s a tension at the heart of it,” she said, “and prosecution in the #MeToo era will continue to deal with this dilemma.”

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