Experts Weigh In on Harvey Weinstein Appeal, LA Case

By Victoria Bekiempis, who writes about courts and crime for Vulture and other outlets

On Thursday, April 25, New York’s highest state court threw out Harvey Weinstein’s 2020 rape and sexual-assault conviction. The New York State Court of Appeals, in its 4-3 decision, said that “the remedy for these egregious errors is a new trial,” and indeed, Weinstein will be retried, with a judge saying on May 1 that it would be tentatively scheduled for the fall. The appeal decision immediately prompted questions about whether this was a setback for the Me Too movement more broadly. Me Too set the stage for a renewed discussion about alleged abusers who for years had evaded justice due to their stature or privilege. Without the women across various industries who came forward, one wonders, would there have been urgency to pursue cases against Jeffrey Epstein and R. Kelly — or would victims’ claims get written off as unreliable or unimportant? Weinstein, who was convicted during his 2022 Los Angeles rape trial, is now in New York City. It’s unclear when he would be transported back to California due to the expected retrial, but he still faces a 16-year sentence in his Los Angeles case. We spoke to experts and asked if there’s any chance something similar could happen during his California appeal; Weinstein’s attorneys are filing their full briefing next week, per his rep. Here’s what to know about the future of Weinstein’s cases.

I need a refresher — what was overturned in New York and why?

Weinstein was found guilty of rape in the third degree and criminal sexual act in the first degree for assaulting two women, Jessica Mann and Mimi Haleyi. Mann, who had been an aspiring actor, told jurors that Weinstein raped her at a Midtown East hotel in early 2013. Haleyi testified that Weinstein forcibly performed oral sex on her in 2006 at his downtown apartment. Weinstein was found not guilty of two predatory sexual-assault counts, which related to actress Annabella Sciorra’s claim that he raped her around late 1993. To bolster their case, Manhattan prosecutors called three other accusers — Dawn Dunning, Tarale Wulff, and Lauren Young — to testify about Weinstein’s sexual misconduct. Weinstein was not facing charges for their allegations.

Weinstein’s lawyer, Arthur Aidala, argued his appeal. He told the New York Court of Appeals that the judge’s decision permitting these three women to testify about alleged prior bad acts solely served to smear Weinstein before the jury, making a fair trial all but impossible. Aidala argued, “It was his character that was on trial — it wasn’t the evidence that was on trial.” The New York court effectively agreed, saying in its opinion: “The only evidence against defendant was the complainants’ testimony, and the result of the court’s rulings, on the one hand, was to bolster their credibility and diminish defendant’s character before the jury. On the other hand, the threat of a cross-examination highlighting these untested allegations undermined the defendant’s right to testify.”

Does this mean Weinstein’s New York case is over?

No. During a hearing on May 1, prosecutors said, “We believe in this case and will be retrying this case.” The judge said that a tentative retrial date would be in the fall. It’s unclear, however, whether Haleyi will take the stand. Following Wednesday’s proceeding, her attorney, Gloria Allred, said Haleyi wasn’t sure whether or not she wanted to testify again, as it was incredibly traumatic.

Didn’t Weinstein’s 2022 L.A. trial have similar testimony?

Yes. Weinstein was found guilty on three charges, including the forcible rape of Jane Doe No. 1, in his Los Angeles rape trial. Weinstein was acquitted of sexual battery against Jane Doe No. 2, and the jury did not reach a decision on counts with two other accusers; a mistrial was declared on said counts. In total, Weinstein had faced two counts of rape and five counts of sexual assault for alleged encounters in California between 2004 and 2013, per CNN. In addition to the four women for which Weinstein was charged, jurors heard testimony from four other accusers related to uncharged bad acts.

Is the L.A. district attorney worried? 

Los Angeles prosecutors appear confident that Weinstein’s conviction will stick. They said, “We are saddened by the news out of New York overturning the hard fought convictions in the Harvey Weinstein case,” but added that California law specifically allowed the kind of “propensity evidence” — testimony from witnesses about uncharged similar bad acts — in sexual-assault cases. “Consistent with this law, our office sought the admission of propensity evidence of Mr. Weinstein’s sexual assaults in other jurisdictions,” prosecutors said in a statement.

“The defense has filed a notice of appeal on the Los Angeles case, but they have not filed their opening brief,” the prosecutors also said in a statement. “Although we do not know what arguments the defense will raise on appeal, we are confident that our convictions will withstand appellate scrutiny. Our Office stands ready to see that Mr. Weinstein faces the serious consequences of his deplorable conduct.”

So, uncharged bad acts aren’t an issue in California?

David Ring, an attorney in California who represented Jane Doe No. 1 in Weinstein’s L.A. case, said it’s far more difficult to make this kind of appeals argument because of this law. “Even though the defendant is not charged with these other victims’ crimes, they’re allowed to testify if the judge finds the testimony to be important and relevant and all that,” Ring said. “New York does not have that statute — New York has a more restrictive statute.”

“There’s a huge difference between the two cases,” Ring said. Ring explained that the California law empowers judges to accept certain testimony. If an appeals court in California must weigh whether the uncharged bad-acts witnesses should or shouldn’t have testified, they must use an “abuse of discretion standard.”

“That’s a pretty high standard — that the trial judge abused her discretion in allowing this other testimony,” which, because of the law, is quite difficult to prove. “Bottom line, it gives the trial judge very broad discretion in what comes in and does not in these cases.” In Ring’s view, the judge in L.A. did an “excellent job” with this, allowing some uncharged accusers to testify but not permitting prosecutors’ requests for others.

Can the New York decision somehow still impact Weinstein’s appeal in California? 

“I don’t think it is going to affect the California conviction at all,” said Neama Rahmani, a former federal prosecutor who now helms West Coast Trial Lawyers. “This is the type of thing if a judge lets it in, it’s really only reversible for an abuse of discretion — it’s really hard to prove.” And as for a retrial in New York, Rahmani said the outlook was good for prosecutors if there were a way to modify how prior bad-acts witnesses came into the case. If there were conduct that fit within the statute of limitations, even if it weren’t as serious an allegation as rape, and were clearly relevant to a charge, then this could be “bulletproof on appeal,” he said. Rahmani said he thinks Weinstein would be convicted again. “I can’t imagine any situation where he’s retried and acquitted.”

What does Weinstein think about his California case? 

Defense attorney Jennifer Bonjean — who has represented R. Kelly and Bill Cosby — is working on his appeal in California. Bonjean, who was present at a press conference following Weinstein’s New York hearing, said she doesn’t think the California evidence law is necessarily a problem for his appeal. “A judge absolutely has to do a balancing test to determine whether the admission of this propensity evidence would cause undue prejudice,” Bonjean said, noting it’s the same in California, New York, and other jurisdictions. “The court did not do that there.” Bonjean also said that Weinstein’s California appeal “does not turn entirely on this issue.” She pointed to how Weinstein was only convicted on Jane Doe No. 1’s allegations. She also said that the California judge “gutted his defense” by barring him from presenting evidence that could have helped him.