A public defender on the judge at the first Weinstein trial: “He was behaving like a prosecutor.”
For the past seven years, Harvey Weinstein has been the bogeyman of popular culture. His depravity seems to the public to be so established that other monstrous men’s misconduct is measured by his misdeeds: Well, sure, he might have done something wrong, but he’s not exactly Harvey Weinstein, is he? Yet while Weinstein’s guilt might be thoroughly determined in the eyes of the public, the eyes of the legal system are a different matter. On April 25, the New York State Court of Appeals overturned Weinstein’s 2020 sex crime conviction.
Weinstein’s legal victory here hinges on a procedural issue, and an ironic one at that. Part of what convinced the public so thoroughly of Weinstein’s guilt was the sheer number of accusations against him. There were dozens upon dozens of them; at Vox, we kept a running tally that topped out around 80. Such an enormous flood of accusations seemed to suggest that at least some of them had to be accurate.
It was those very additional accusations, however, that got this trial overturned. When Weinstein originally came before the court in 2020, he was being tried for various sex crimes against three different women. Over the course of the trial, however, Judge James Burke allowed prosecutors to present testimony from three other Weinstein accusers, even though Weinstein wasn’t being prosecuted for attacking these women. Burke also said that if Weinstein chose to testify, prosecutors would be able to ask Weinstein about all the accusations against him during cross-examination, even the ones he hadn’t been charged for. (In the end, Weinstein did not testify.)
In the press, unprosecuted accusations against Weinstein went a long way toward establishing the pattern of behavior that convinced the public of his guilt. In the courts, however, New York state law holds that you can’t use an accusation of an uncharged crime as evidence against someone who you are currently prosecuting for a different crime.
“Under our system of justice, the accused has a right to be held to account only for the crime charged,” said the Court of Appeals in their 4–3 decision. “It is our solemn duty to diligently guard these rights regardless of the crime charged, the reputation of the accused, or the pressure to convict.”
Currently, Weinstein is in a New York City hospital, where he’s receiving a variety of health tests. He remains in custody, serving out the 16-year term he was sentenced to in California after having been convicted there of rape in 2022. New York prosecutors have said they intend to recharge him, but it’s unclear if he’ll be transferred to California in the interim.
To understand exactly how the legal mechanisms at play here worked, I called up Eliza Orlins. Orlins is a public defender based in New York City who, as part of her job, sees how these rules affect people with a lot fewer resources than Harvey Weinstein. Together, we talked through the court’s decision; the difference between the way journalists gather proof and the way courts do; and how the justice system fails survivors of sexual violence. Our conversation has been lightly edited for length and clarity.
As I understand it, one of the issues here is the testimony from previous alleged victims of Weinstein. The judge in the first trial agreed to let them testify, and then the appeals court concluded that they shouldn’t have been allowed to testify. What is the nuance here? What’s the disagreement?
The trial court’s ruling was overturned on two different grounds. There’s Molineux and then there’s Sandoval, and they’re different. In the decision, I think they clearly lay out the two different ways in which those things are applied.
Essentially, the Molineux rule begins with the premise that uncharged crimes are inadmissible. And then they carve out exceptions. Uncharged crimes have to meet a qualifying test. You have to figure out the relevance and weigh the probative value against the potential for prejudice.
Just to differentiate before we go into both of these things, Sandoval is differentiated from Molineux. Typically, there’s a Sandoval hearing pretrial which [looks at] the things that the prosecutor wants to utilize on a potential cross-examination of the defendant, if they choose to testify at trial, and [determines] what would be allowed to be employed for impeachment purposes.
Essentially, there’s a two-part test for admission of Molineux evidence. First, it has to be logically relevant to prove one or more specific material issues in the case. Secondly, it has to have legitimate probative value that outweighs its prejudicial effects. Here the court of appeals determined, frankly correctly, that this evidence of these allegations of prior bad acts should not have been admitted. The admission of them was not harmless error, and there would have been the potential for an acquittal but for this testimony.
Okay, so you’re saying that for evidence to get admitted, it has to prove the facts of this specific case that’s being tried currently, not just demonstrate that Weinstein’s the kind of guy who’s likely to do something like this. Can you tell us how this evidence fails the test?
I really recommend people read the majority’s decision, because the court lays it out quite well and quite clearly. The Molineux rule is that things shouldn’t come in as propensity evidence. It can’t come in as proof of bad character alone. The prosecution shouldn’t be proving against a defendant a crime that is not alleged in the indictment. The evidence shouldn’t be admissible, simply because it’s very easy for a jury to misconstrue that evidence and say, “If he did that, he probably also did this.”
This is so interesting to me. In journalism, when you’re reporting on a sexual violence case, you’re taught to look for multiple accusations and patterns of behavior because, of course, it’s very hard to work with classical forms of evidence for sexual violence cases. There usually aren’t witnesses. A lot of times the accusations are coming out years and years after the event. So we usually tend to feel that if we can find multiple credible accusations that establish a pattern, that’s compelling and that is worth reporting.
Obviously the standards of evidence are very different in journalism from how they are in courtrooms, because we’re doing different things. Journalists aren’t trying to figure out someone’s legal guilt or innocence, and we can’t put anyone in jail. But I’m wondering if you can talk me through some of the differences in how the legal system thinks about establishing these patterns.
First of all, I think that the legal system does a poor job of addressing the harms that are caused, especially in cases of sexual assault, sexual violence, domestic violence, intimate partner violence. Even if someone is charged and goes to jail, it’s very hard to feel as though there’s any sort of way in which victims are being made whole. There’s some really interesting jurisprudence on this. Danielle Sered wrote an incredible book called Until We Reckon about restorative justice and how poorly the legal system addresses the harms to victims to begin with.
In terms of the way that we need to think about trying cases, for crimes to be charged, even for a case to be indicted, there has to be reasonable cause to believe that the crime has occurred. Then the case goes forward. Then at a trial, obviously, there has to be proof beyond a reasonable doubt. When we’re dealing with uncharged crimes, there’s a reason why those crimes weren’t charged, right? These are things that the prosecution either feels they couldn’t even find reasonable cause to believe occurred, or they certainly don’t feel they could prove it beyond a reasonable doubt.
By admitting these other uncharged crimes, it is just a way to bolster the prosecution’s claim and show that this person had the propensity to do this. It flies in the face of what due process looks like.
Really the problem is that the charges have to be proven beyond a reasonable doubt, based on things that are within the framework of that specific charge. While there are exceptions to the Molineux rule about keeping out uncharged crimes, the reason why those exceptions exist is because there are certain times when that evidence does necessitate admission to explain something.
There are specifically laid out exceptions in the law. They tend to establish motive, intent, absence of mistake or accident, a common scheme or plan, the identity of the person who’s charged with the commission of the crime. That list is not exhaustive, but those are the main categories. It’s really critical that those things aren’t admitted just to show propensity evidence.
Do you think that anything about this ruling will change anything about how sexual violence cases are prosecuted going forward?
I appeared before the judge who was the trial judge in the Weinstein case many times for over a decade. I found him, even within a system that is unbelievably cruel, to stand out as someone who was immeasurably cruel. There are certain things that he did over the years to clients of mine that I will truly never forget for as long as I live. I think his legacy will be that he made these rulings to try to stick it to Weinstein, to try to make sure that there was a conviction, and that has now resulted in the retraumatization of victims.
He was behaving like a prosecutor, and the reality is that the prosecutors are also at fault. They are the ones who brought up evidence that wasn’t admissible and convinced the judge to admit that evidence.
So, is it going to change the way we prosecute cases? I don’t know. Maybe. I hope so. I think that using outside evidence should only be done in the most limited of circumstances when it’s truly appropriate.
So we’ve talked about the Molineaux rule. How does Sandoval play into this? That’s about what the prosecutors are able to cross-examine Weinstein on, right?
This decision is just saying: People should have the right to testify in their own defense. By making a ruling that makes it so that if you testify your cross-examination will be devastating, that makes it hard for people to then do that. I think that it is important for people to remember that.
This case is horrifying and it’s so upsetting and I feel so deeply for the victims, but the decision should be looked upon as one that is ultimately going to help people who are far less privileged than Harvey Weinstein. The majority of my clients, they’re all poor and they’re people of color and people from marginalized communities who really don’t have all of those advantages. I think that the ways in which prosecutors overreach just to try to show jurors how loathsome of a person someone is, to try to garner a conviction is not the right thing. Ultimately, that leads to reversals of convictions.
This is the perfect example of how prosecution really isn’t about getting justice for the victims. They’re not actually looking out for the people who’ve been hurt here.
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