Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
To date, I’ve refrained from commenting on the conviction of Harvey Weinstein. I’ve just listened to the first significant post-verdict report, on the Femsplainers latest podcast (here), released yesterday (March 2). It increased my concern that Weinstein’s conviction may have been a serious miscarriage of justice, and perhaps an example of mob rule.
I am always hesitant to second-guess a jury. The jury heard extensive testimony from multiple witnesses, and (presumably) had voluminous exhibits, over a period of about a month. I’ve only heard and read a few summaries. A jury verdict is generally entitled to our respect. Based on what I have heard, however, I have significant concerns.
I. The Femsplainers podcasts
In their Feb. 19 podcast (here), titled “What if Harvey Weinstein Wins,” our Femsplainers — Christina Hoff Sommers and Danielle Crittenden — first addressed the weakness of the prosecution case. Both are generally supportive of the #MeToo movement, and both were initially convinced that Weinstein was a horrid monster who should be convicted. After looking into the case further, both concluded that the case was quite weak.
In their podcast yesterday, Sommers and Crittenden interviewed two journalists, Phelim McAleer and Ann McElhinney, who covered the trial in detail. Here are some of the comments from their discussion:
Crittenden [at 0:52]: “We talked on our Harvey Weinstein episode just how problematic this whole trial had become.”
Sommers: “Well, to be clear, neither of us thought it was, I didn’t think it was problematic, until I found out more about it, particularly by listening to this podcast [by McAleer and McElhinney], where they re-enacted the testimony, it was the Harvey Weinstein trial unfiltered. . . . They had actors re-enact the high points of the testimony. And that completely changed my view, because I began to see, thinking of myself on a jury, would I find him guilty of rape and very serious charges based on the testimony of Miriam Haleyi and Jessica Mann. Their testimony was . . .”
Crittenden: “Was filled with so many flaws. And let us stress that we have no interest in protecting or supporting Harvey Weinstein.”
Sommers: “We agree, no question he’s a pig.”
Crittenden: “And there’s no question, I shouldn’t say there’s no question, but it’s very likely that he has done horrible, horrible things. But in the two cases that were brought, and we discussed this, you can go back and listen I think two episodes ago to our Harvey Weinstein, just that the witnesses stories that having been, according to them, violently raped, the very next day they were having breakfast, making plans to travel with him.”
Sommers: “Sending love notes, writing in their calendars this is the best week of my life, very strange.”
Crittenden: “And you just didn’t read about it in any other publication. You had to really, honestly, listen to the [McAleer and McElhinney] podcast.”
. . .
Crittenden [starting at 7:38]: “To your point, Phelim, I was listening last week, as the jury was deliberating, to your point exactly. And they had some reporters on, just in their round-up of the week, talking about the Harvey Weinstein trial, but with no reference to this evidence or testimony. In fact, the only thing that they would say is, well, if he’s found innocent this will be a, you know, a real colossal failure for MeToo, or if he’s found guilty, but nobody discussed the details. And I want to stress this isn’t to say that Harvey Weinstein isn’t, you know, some sort of sexual predatory monster. But what was so shocking, and what I think you guys revealed really well, was how sort of flimsy, like if these were the best cases the prosecution could come up with . . .”
McElhinney: “Absolutely, absolutely. It’s extraordinary, I mean in the case, you know, you think really, would you want your mother to meet your rapist. Would you write to your rapist and say I really want you to meet my mother. Would you write your rapist and say please come to my birthday party. Would you get your rapist to fly you to Los Angeles the day after a rape, and then the first person that you meet when you come back from being on holidays on a ticket paid for by your rapist, go and see your rapist and have consensual sex with your rapist. Does that behavior seem reasonable? And, you know, the only thing that they asked of the jury was to bring reasonableness . . . You have situations with one of the accusers ending up in Cannes and writing to Harvey Weinstein, to her alleged rapist, saying I’m going to be staying on my own, I’m going to be staying in an apartment on my own. Why would you give that kind of detail to someone who has raped you in the past? . . .”
. . .
McElhinney [at 11:37] “I think [Weinstein’s] in complete disbelief, I think it was hard for him to get out of the chair because, the realization of what happened to him has dawned on him, and it’s like a scene out of this Kafka-esque, it’s like The Trial and I mean again, you said it yourself there earlier, this is not a guy I would like, and obviously politically would be very much at odds, and I think his behavior with women is appalling, I think they call it, you know, a cad and all those kind of things. But I don’t think he’s guilty of the things he has gone to prison for, and it looks like he will be in prison for 29 years, he will die in prison. And I think this is a really bad day for women. I think it’s a really bad day for women’s justice, actually women are the ones who do badly out of this, you know, because I don’t want a justice system that works like this. It won’t help any of us. Cause women do get raped, and terrible things happen to women, and obviously that’s horrific and needs to be litigated, you know, to within an inch of its life. But this was not, these, if this was the best cases that they could come up with after 90 women who had accused him of various actions, and these are the two best cases that they used, this man should not be in prison today.”
. . .
Sommers [at 17:24]: “You know, there’s one other thing to keep in mind is two law professors, probably feminist law professors, wrote a piece in The Daily News, I think it was yesterday, and they pointed out that this verdict sets a dangerous precedent. Cause most of the people who are going to find themselves in court are not going to be wealthy and to be able even to afford the sort of defense Weinstein had. But now that they lower standards of proof, they allow prior bad acts witnesses to come in and crush any possibility of a defense, this is going to set a precedent which is probably going to send more people to jail, mostly men, under, with this low standard of proof that they’ve now established. . . .”
. . .
McElhinney [at 19:49]: “When the jury selection was going on you had a flash mob outside shouting, and being heard inside the courtroom, that the rapist is you, the rapist is you. Hundreds of women. They heard that. That’ll have an effect. It would have been a big pressure for them, and they were going to go home to tell their respective spouses and children and whoever, oh, I was one of the jurors on this case and I let him free?”
Sommers: “They might have had pickets outside their homes.”
If you’re interested, here is a link to the McAleer/McElhinney podcast, called “The Harvey Weinstein Trial: Unfiltered.” I have not yet viewed it myself.
Before moving on, I want to comment about the exchange above from the Femsplainers.
- It is very troubling, to me, that Sommers and Crittenden continue to believe that Weinstein is a “pig” and a “sexual predatory monster.” Perhaps he is. There are a large number of vague allegations, none of which have been proven in a court of law except these two. They appear to have concluded that the two brought to trial — presumably among the strongest and best of the allegations — are shockingly weak. One might expect that this would teach them a lesson about the presumption of innocence.
- It is also weird to me that McElhinney said: “I think it’s a really bad day for women’s justice, actually women are the ones who do badly out of this, you know, because I don’t want a justice system that works like this.” Well, actually, the one who does badly out of this is Weinstein, who is going to prison for the rest of his life (probably) as a result of what McElhinney called a “Kafka-esque” trial. I’m reminded of the old joke headline World To End Tomorrow: Women, Minorities Hardest Hit.
These objections aside, this podcast is powerful evidence that something may have gone quite wrong in the Weinstein trial. I encourage you to listen to the whole thing. There are additional troubling details, such as the overwhelmingly one-sided media coverage and a specific juror who appears to have been biased (who apparently has a book about to be published about sexually predatory older men).
II. The Nation article
While the jury was deliberating, a story titled Why Harvey Weinstein Might Walk was published by The Nation (here), further detailing the weaknesses in the prosecution’s case. The Femsplainers discussed this article in their first podcast. The conclusion of The Nation article is quite surprising, especially given the source. The article explained:
Those reporters betrayed no curiosity about the public observers’ assessment of events, at least not that I witnessed across the many days I attended. On elevators and in the restroom, their banter stopped abruptly when they noticed us. For the most part, their dispatches parroted the prosecution’s narrative. The public line was scrappy and searching. By the summation phase, a young woman who days earlier had argued away the contradictions in prosecution witness testimony had decided, “It is a very weak case.” News accounts I’ve seen have emphasized only strength. They did not acknowledge defense attorney Donna Rotunno’s closing as a methodical review of evidence, which raised a mountain of doubt, or describe Assistant District Attorney Joan Illuzzi-Orbon’s as a digressive appeal to emotion, which repeatedly declared Weinstein a “predatory monster” but otherwise sowed confusion. Instead, the media largely characterized the defense argument as an attack on women and sidestepped the vital matter of whether the prosecution had proved its case.
The entire article is worth reading if you are interested in more information. Note that it, and other media reports, refer to Haleyi as “Haley.”
Among other things, this article argued that Sciorra was the most credible prosecution witness, by far, and that this was not just the reporter’s impression, but was corroborated by the prosecutor’s closing argument:
But the state has been allowed to present the allegations of four others to demonstrate a pattern: three “bad acts” witnesses, whose claims are not part of the charged crimes; and Annabella Sciorra, whose 27-year-old rape allegation, barred by the statute of limitations, has come in through the back door, linked to each primary accuser’s claim in the predatory sexual assault charges. The actress is regarded as the prosecution’s best witness. In a three-hour-and-20-minute summation, Illuzzi-Orbon spent the first hour and 10 minutes on Sciorra, whose images dominated the state’s slideshow, reducing the other women to bit parts.
I’ll discuss the significance of Sciorra’s testimony in the next sections. It turns out that on the only two counts on which Sciorra’s testimony was directly relevant, the jury acquitted Weinstein.
III. Possible procedural and legal irregularities
As quoted above, Sommers referenced an article written by two female (and presumably feminist) law professors in The Daily News. Here is the article, published on Feb. 24. Reading it, you definitely get the impression that the authors are radical feminists who strongly support the #MeToo agenda. However, they sound a note of caution at the end:
The case set a precedent where justice lies in giving the prosecution legal advantages not available in other cases, including the admission of “prior bad-acts witnesses” and rape trauma experts that opine on the typical behavior of rape victims. It established that more subtle modes of pressure can constitute the “forcible compulsion” necessary for the highest degree of sexual assault.
Being feminists, they follow this condemnation with: “Of course, this is all good if one believes that locking more people up for longer is the key to stopping sexual misconduct.” Right, because who really cares if trials are unfair.
There were six women who testified against Weinstein at the trial. Two were the actual accusers — Haleyi and Mann. Haleyi accused Weinstein of forcing oral sex on her in 2006, and Mann accused Weinstein of raping her in 2013. The “flimsy” nature of these allegations are discussed in the Femsplainers podcast quoted above.
Sciorra was another very important witness, who accused Weinstein of raping her in the mid-1990s. Her allegation was outside the statute of limitations period, but was an element of the two most serious charges, “predatory sexual assault.” Predatory sexual assault is something like a RICO claim for sex crimes, requiring proof of two sexual offenses, only one of which must be within the limitations period. The predatory sexual assault charges were the most serious, potentially carrying a life sentence.
A. Summary of charges and the verdict
Here are the details of the charges and verdict:
- Criminal sexual act in the first degree (Haleyi): Weinstein was found guilty of this charge. As applicable to Haleyi’s allegation, this required proof that Weinstein engaged in anal sex or oral sex with her “by forcible compulsion.” It is a class B felony, carrying a sentence of 5-25 years. Here is a good discussion by a NY law firm on the elements. Of concern, the “forcible compulsion” element requires either the use of physical force, or an express or implied threat of immediate death or physical injury to the victim or someone else. I think that the weakness of the “forcible compulsion” element, in Haleyi’s case against Weinstein, is one of the concerns raised in The Daily News article quoted above.
- Rape in the third degree (Mann): Weinstein was found guilty on this charge. As applicable to Mann’s allegation, this required proof that Weinstein had sexual intercourse with Mann without her consent. Here are the elements and a discussion. The “forcible compulsion” element does not apply to this charge. This is the least severe charge faced by Weinstein, a Class E felony, with a maximum sentence of 4 years.
- Rape in the first degree (Mann): Weinstein was found not guilty on this charge. As applicable to Mann’s allegation, this required proof that Weinstein had sexual intercourse with Mann “by forcible compulsion.” Here are the elements and a discussion. It is a Class B felony, with a sentence of 5-25 years.
- Predatory sexual assault (Hayeli and Sciorra): Weinstein was found not guilty on this charge. It requires proof of violation of one of four serious sex crimes against more than one person — the four are rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or sexual conduct against a child in the fourth degree. In addition, as to one of these acts, the accused mush have either caused serious physical injury to the victim, or used or threatened the immediate use of a dangerous instrument. Here are the elements and a discussion. As applied to the Hayeli-Sciorra allegation, conviction would have required proof: (1) that Weinstein committed criminal sexual act in the first degree against Hayeli (which the jury found that he did); (2) that Weinstein caused serious physical injury to Hayeli or used or threatened the use of a dangerous instrument; and (3) that Weinstein committed rape in the first degree against Sciorra. Again, Weinstein was acquitted of this charge, which means that the jury must have found that either element (2) or element (3) — or both — was not proven beyond a reasonable doubt. This (and count 5 discussed next) was the most serious charge against Weinstein, a Class A-II felony with a minimum sentence of 10 years and a possibility of a life sentence.
- Predatory sexual assault (Mann and Sciorra): Weinstein was found not guilty of this charge. See the discussion in (4) for the elements. As applied to the Mann-Sciorra allegations, conviction would have required proof (1) that Weinstein committed rape in the first degree against Mann; (2) that Weinstein caused serious physical injury to Mannor used or threatened the use of a dangerous instrument; and (3) that Weinstein committed rape in the first degree against Sciorra. Again, Weinstein was acquitted of this charge, but this was a necessary result of the jury’s acquittal on the rape in the first-degree charge (discussed above).
Note the distinction between the “forcible compulsion” requirement for counts 1 and 3 above (criminal sexual act in the first degree of Haleyi and rape in the first degree of Mann) and the lesser requirement of “without consent” applicable to count 2 above (rape in the third degree of Mann). The jury was not presented with a count for criminal sexual assault in the third degree, which would have been based on Haleyi’s allegations but would have required only proof that the act was “without consent” but would not have required proof of “forcible compulsion.” I do not know why this alternative charge was not presented to the jury.
B. “Prior Bad Acts” witnesses
Of further concern, three other women were allowed to testify about other rapes or sexual assaults allegedly committed by Weinstein. I do not know the detail of these allegations, but they were not elements of any of the crimes charged. They were “prior bad acts” witnesses. Admission of such evidence is generally not permitted, and this is the other issue addressed in The Daily News article quoted above.
Admission of such evidence appears to be governed by N.Y. Evid. R. 4.21 (here), which provides in pertinent part:
(1) Evidence of crimes, wrongs, or other acts committed by a person is not admissible to prove that the person acted in conformity therewith on a particular occasion or had a propensity to engage in a wrongful act or acts. This evidence may be admissible when it is more probative than prejudicial to prove, for example:
motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident, or conduct that is inextricably interwoven with the charged acts; or to provide necessary background information or explanation; or to complete the narrative of the subject event or matter.
I am not personally familiar with the NY rule, but this is consistent with my experience in many jurisdictions. It is quite similar to the federal rule (Fed. R. Evid. 404) and the Arizona rule (Ariz. R. Evid. 404). It is, generally, very difficult to obtain admission of “prior bad acts” evidence.
However, in both the Federal and Arizona Rules of Evidence, there is a special rulemaking an exception to the general rule excluding “prior bad acts” evidence. Fed. R. Evid. 413 specifically allows the use of such evidence in sexual assault cases, and Ariz. R. Evid. 404(c) makes a similar exception “if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged.”
In short, both the federal government and my home state of Arizona have a special rule, not applicable in any other type of case, allowing admission of “prior bad acts” evidence in sex-related cases. This, incidentally, is common to the “rape shield” laws and rules advocated by feminists in the 1980s and 1990s, which feminists generally consider to be important to women’s equality (and I consider to be repugnant to both due process and equal protection). In these instances, “equality” means that special rules apply to favor women who accuse men of rape or other sexual misconduct, and to disfavor men who are defending themselves from such charges, contrary to the general rules on the same issues that apply in every other type of case.
This change to the federal rules, incidentally, was not adopted by the federal courts through the usual rules process. It was enacted by Congress in 1994 as part of the big crime bill that year, and specifically as part of the “Violence Against Women” subsection of that bill.
Surprisingly, New York may not have adopted this special rule. I do not know the basis for the admission of the testimony of the three “prior bad acts” witnesses who testified against Weinstein.
C. Expert testimony
I do not know the details of the expert testimony offered, but the article in The Nation noted: “They [the jurors] have heard expert testimony on the commonness of a woman’s continued contact with her rapist and on the commonness of any person’s revising a memory based on post-event information.”
My impression is that expert testimony was offered by the prosecution to explain that there is nothing unusual about a woman being forcibly raped one night, then carrying on an apparently perfectly normal, happy, friendly relationship with her alleged rapist. In other words, I suspect that one or more expert witness told the jury that actions and communications by an alleged rape victim after the alleged rape, which would seem completely inconsistent with the truth of a rape allegation, are very common. Thus, to answer some of McElhinney’s questions — sure, it’s perfectly “normal” for a woman to have a lovely breakfast with her rapist the day after the rape. It’s perfectly “normal” for a woman to want her rapist to meet her mother. It’s perfectly “normal” for a woman to travel on a holiday paid for by her rapist, and then have consensual sex with him upon her return.
Again, I do not know the details here, but I cannot imagine any legitimate methodology that would allow one to formulate such an expert opinion. To do so, one would have to begin by establishing the truth of the victim’s allegation, and then note certain subsequent, apparently inconsistent behavior. But it is the inconsistent behavior that tends to undermine one’s belief in the truth of the allegation. In short, this methodology seems to begin by assuming that the alleged victim is telling the truth, and then using this assumption to explain away any subsequent inconsistent actions.
Perhaps there is something more to such expert testimony. But my impression is that it inherently rejects the presumption of innocence, and replaces it with something like, well, #BelieveAllWomen.
IV. Reasons to suspect jury compromise
As discussed in Sec. II above, The Nation article Why Harvey Weinstein Might Walk detailed the weakness of the testimony of Weinstein’s principal accusers, Haleyi and Mann, and noted that the prosecution overwhelmingly emphasized the testimony of Sciorra. The consensus seems to be that Sciorra was, by far, the most credible of the prosecution witnesses. I should note, however, that McElhinney raised a doubt about Sciorra in the latest Femsplainers podcast, noting that Sciorra could not remember the year in which the alleged rape occurred (she did narrow it down to one of two years, apparently).
Having read The Nation’s article before the verdict, I immediately suspected a jury compromise. The jury was presented with five counts, and it convicted Weinstein of the two least significant counts. These crimes were still serious felonies, but not as serious as the three on which he was acquitted (to review, he was acquitted of one count of rape in the first degree (alleged by Mann) and acquitted of both counts of predatory sexual assault).
If, hypothetically, the jury felt pressured to return a guilty verdict on a weak case, it would make sense for them to compromise to this outcome.
There is something potentially contradictory about the verdict in this respect, though not necessarily so. The acquittal of Weinstein on Mann’s accusation of rape in the first degree would automatically make it impossible for the jury to convict him of the predatory sexual assault count based on the combined allegations of Mann and Sciorra. However, the jury found Weinstein guilty of criminal sexual act in the first degree as alleged by Haleyi, but acquitted him of the predatory sexual assault count based on the combined allegations of Haleyi and Sciorra.
This seems inconsistent with the consensus view that Sciorra was a much more credible witness than Haleyi or Mann.
There is an alternative explanation, however. As discussed above, in addition to requiring proof of two serious sexual crimes, the predatory sexual assault count requires proof that Weinstein either caused serious physical injury to the victim, or used or threatened the immediate use of a dangerous instrument. I do not know if there was credible evidence of this element. Though if there was not, I would not have expected the judge to allow this count to go to the jury.
In addition, the jury was the best position to evaluate the credibility of the witnesses. Though outside observers — and even the prosecutor — may have thought that Sciorra’s testimony was the strongest, the jury may have disagreed. Further, the prosecutor’s emphasis on Sciorra’s testimony may have been a case of swinging for the fence, as the predatory sexual assault charges were the most serious and carried a possible life sentence.
V. Conclusion, explanation, and predictions
I want to emphasize, once again, that I do not have sufficient information to personally evaluate the jury’s verdict in the Harvey Weinstein case. Jury verdicts are entitled to a presumption of validity. At present, Weinstein is a convicted, felony sex offender and rapist.
I do believe that the information outlined above raises serious questions about the case, which merit further investigation and consideration. I hope that good journalists and commentators will further evaluate these issues, and give us better information. I am quite concerned that Weinstein was a victim of mob justice. It can simultaneously be true that: (1) Weinstein is a reprehensible sexual predator and rapist, and that (2) Weinstein was unjustly convicted in this particular case.
Next, I want to make my moral position clear. Weinstein has been convicted of two crimes, perhaps unjustly, perhaps not. Weinstein has been accused of serious sexual misconduct by about 80-90 women. It does not appear that Weinstein disputes the fact of his sexual escapades with a great many women, though he does dispute the allegations that they were nonconsensual. From a moral standpoint, I need not pass on these issues. I am a traditionalist, and find Weinstein to be morally deficient because he had sex with women, apparently a great many women, who were not his wife. I suspect that many of the women were equally deficient morally, but this would turn on whether or not their actions were consensual.
Finally, I venture two predictions:
- Weinstein’s conviction of criminal sexual act in the first degree (against Haleyi) will be overturned for insufficient evidence of “forcible compulsion.” This will probably cause a serious reduction in his sentence.
- Weinstein’s conviction, on both charges, will be overturned due to the erroneous admission of the “prior bad acts” evidence.
I do not know the precise consequences of such reversal under New York law. Generally speaking, I think that the reversal of a criminal conviction for insufficient evidence prevents re-trial on the same offense. However, the reversal of a criminal conviction due to the erroneous admission of evidence does not prevent re-trial.
If my prediction proves correct, the more serious conviction (sentence range 5-25 years) would be overturned without the possibility of re-trial, while the less serious conviction (maximum sentence 4 years) would be overturned but could be re-tried.Published in