Harvey Weinstein's NY Conviction Was Overturned. So Who Effed Up?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:45 Thomas: This is episode 1041. I'm your host, Thomas Smith. And we are very lucky to be joined by Liz Skeen, who is a defense attorney in New York. May have heard her on Gavel Gavel. In the process of recording Gavel Gavel and talking about some of the issues there, it became clear that Liz has experience in the exact issues that the Harvey Weinstein appeal.

We got into it a little bit on that show, but then Liz was kind enough to agree to do a deeper breakdown on opening arguments. And so here we are. This is something that I've wanted to cover since it happened. Hey, as says, the news hose, the news hose floweth. News hose or floweth, finally at long last we're gonna cover it. So what in the world happened? Did Harvey Weinstein win his appeal? Why does this obviously horrible guilty guy win on appeal?

What we're here to answer, and though I do need to issue a gigantic trigger warning, content note, whatever, because we're talking about Harvey Weinstein, we're taking about sexual assault, we're talking about, you, obviously, a lot of horrible stuff, and we're thinking about the law involved in that and other cases, so just a big old warning that that's not going to be super pleasant. There's, that's what's on after the break, which you can avoid if you go to patreon.com/law, all those ads and get the bonus goodies. Right, let's get on over to Liz Skeen on the Harvey Weinstein appeal.

0:02:15 Thomas: Liz, hit new podcaster from Gavel Gavel. How are you doing?

0:02:20 Liz: Thomas. I doing really well and to join you today to talk about a very interesting interesting recent decision.

0:02:27 Thomas: Yeah. Yeah, this was so interesting. We got into it a little Gavel Gavel because a lot of the same issues, from my understanding, are maybe potentially present in Trump case, and so really interesting there. And then the more we got to talking about it, was it like, oh, Liz, this is perfect. Can you do a more detailed deep dive for us on OA, this being sort of your, well, I don't know, is it fair to say your area? I guess it's something you deal with a lot, right?

0:02:51 Liz: Yes. So it is something I deal with a lot. And know, the Court of Appeals came in on, you 2024, and they overturned Harvey Weinstein's convictions at the trial level on the basis of these two different types of issues called Molyneux and Sandoval that I deal with all the time as a public defender in criminal cases.

0:03:11 Thomas: Not usually trying trying to get horrible rapists off, I hope. I don't know. I mean, does the public defender, no, No, because they're wealthy and they have super high priced attorneys who are probably, offense, but not you. Right. Like you're not the billion dollar attorney.

0:03:25 Liz: To me as an attorney, you have to be considered to be indigent. You can't afford an attorney. But like to think I'm best defense you can get at that price. So there you go.

0:03:35 Thomas: Yeah, for sure. Hey, we know from gavel gavel that I you would have done better than some of Trump's attorneys, at least.

0:03:41 Liz: Potentially. What say is I little sensitive of criticism of defense attorneys in the sense that I am defense attorney, but then sometimes I see something truly horrific that they're doing and I can't help myself. And when I say defensive, I just mean it's a hard practice. Sometimes you're up there, you're getting beaten down by the judge, by the prosecutor. It's tough. But would I say that Trump's attorneys made some significant mistakes in the trial case.

0:03:54 Thomas: Yeah. Hmm. Hmm. And more on that on gavel gavel. But for today, yes, as you mentioned, Harvey Weinstein got you remind us all kind of reset for us? Lot of us, I'm sure, just remember, oh, that guy sounded like an awful rapist or something and was likely, in my opinion, I'll just I won't get anyone else in trouble. In my opinion, guilty of a whole bunch of shit. Us though, like what in particular was this trial? I feel like there were multiple trials. You know, the average person probably doesn't have all those straight. So if you don't mind kind of setting that up for us.

0:04:08 Liz: Yeah.

0:04:35 Liz: So. And one of the things I would say is that this was not, from the prosecution's perspective, a straightforward case. I think that they had a lot of difficulty with it. And it seemed like there was a great deal of internal politics with the case. The interaction, and this is actually not part of the trial case, but it's worth noting this, you know, the first interaction that Harvey Weinstein has with sort of NYPD and the District Attorney of New York is that there's, in 2015, there's a model named Ambra Gutierrez, who meets Harvey Weinstein, and she alleges, she goes immediately to the police after this interaction that he lunged at her and attempted to put his hands up her and he placed her hands on him. And she goes to NYPD immediately after. This is really well detailed in Ronan Farrow's book, and I think it's worth noting because this basically gets botched or just doesn't happen. So she goes into NYPD.

0:05:20 Thomas: Wow. Huh.

0:05:27 Liz: They put a wire on her, she goes back to Harvey Weinstein and effectively tries to get a confession, gets him to kind of acknowledge what happened and actually apologize. So she does that and she does it with some amount of personal risk to herself as she documents. She ends up alone with him again, goes to NYPD, gives them that evidence. And this is all in 2015. According to her, what happens is the head of sex crimes for the district attorney of New York, which I'll sometimes call Danny if that's okay for everyone, the head of sex crimes is Martha Bashford, questions her, asks her about past relationships or contacts she had with Berlusconi, the prime minister of Italy who got into a lot of trouble for various number of things.

And the district attorney of New York decides not to move forward at all with her allegations, Even though she really makes out this forcible touching sex abuse in the third degree, NYPD special victims unit is totally incensed by this, by the way. And they conduct this their own internal investigation. They see that a bunch of cases that do not involve people named Harvey Weinstein on considerably less evidence, I .e. not someone on a wire effectively

0:05:27 Thomas: Oh yeah. Wow. Right. Yeah.

0:06:35 Liz: Admitting what they did go forward. So it's really interesting to note that they have this history with him and actually had declined to prosecute that case. Yeah,

0:06:44 Thomas: Let's talk about that for for a sec. I, now, now that's coming back to me now that you say that. And strikes me as some bullshit. And I just, I wonder, this is probably something, I don't know how much you've dealt with anything like that, but it strikes me that if someone were to, in a random kind of occurrence, do something like that. A sexual assault like that? Like, strikes that like how much better, I mean, okay. Maybe if it was captured on video. Okay.

That's like, but apart Apart from that, like how much better could your evidence even get than, hey, I reported it right away and I went put on a wire. We got him to admit to it. Like a lot of these cases. It seems to me and let me know what you think. But it seems to be that there you often there's like a well, he said, she said with stuff like this.

And in a court of law, you like you can't always get the punishment that people deserve because of that, you know? Like, because of the nature of our system. But this, it's, like, I -don't -know -how -you -can -do -much -better -than

0:07:38 Thomas: -this.

0:07:38 Liz: Couldn't have said it better. I absolutely agree with you, Thomas. And other thing I would just add is that I represent people. I am a public defender. I represent people in these types of cases. And under York law, this is a misdomainer, misdemeanor, forceful touching, sex abuse in the third degree. That's the other type of misd demeanor that would be charged. No way any of my poor clients would not be charged in a similar circumstance. It is inconceivable to me.

And I've had cases with considerably more obvious defenses offenses, this client probably didn't do this thing and they've been charged with it. And we've had to negotiate a disposition. I'll just give you a quick example, which is I represented, a woman who was a refugee. Worked basically a fancy spa and there was an allegation that she had touched someone's butt in the course of a massage. And it was just very clear that she'd engaged in a much more vigorous massage. We up meeting with the DA's office, and they dismissed the case. We said, this a sexual touching, whatever. But That you was obvious from even the complaint. Truly disturbing disturbing that this highly evidenced, uh, on tape, confession you that they didn't move forward with that because any of my clients wouldn't have even been a question. Uh,

0:08:19 Thomas: Hmm.

0:08:48 Thomas: So, that smacks of potentially some sort of corruption or something, but we don't know.

0:08:53 Liz: I think so. There It's was some internal decision in the DA's office made not to move forward on that. And

0:08:57 Thomas: So ,that's 2015. So, and that's, pre so -Me Too. That's okay. So

0:09:01 Liz: Yeah, Exactly. And know, the next moment, I think in terms of looking at what happens with the district attorney's office, the and their relationship or their attempts to prosecute Harvey Weinstein is, after Me Too, and so you have, in October of 2017, you've got the New York Times articles with Jodi Kantor and you've got Ronan Farrow publishing his article both in, in that year.

Unsurprisingly what happens when there's a lot of press attention about someone potentially engaging in criminal behavior is prosecutors will take notice, right? And they will start to look at, examine this person and examine who's come forward with them and what sort case they can bring forward.

A little bit later that year, so in November of 2017, there's this kind of interesting thing that happens in the chief of detectives from NYPD, Robert Boyce, he makes a statement saying that NYPD has a strong criminal case against Harvey Weinstein on the basis of Paz de la Huerta, who's an actress who had alleged being raped by Harvey Weinstein in a story that was published in Vanity Fair. So chief of detectives from NYPD makes that statement.

And then actually, once again, Cy Vance, the district attorney of New York's office, comes through and makes some statement around the same time, saying that at this point, they do not have enough evidence to charge Harvey

0:10:14 Thomas: Hmm.

0:10:15 Liz: Weinstein. And that causes a lot of, there's press attention about that. And it's really weird, by saying we have a strong case and the District Attorney of New York saying, sorry, we don't have enough evidence to charge. And definitely a lot of stuff going on behind the scenes there that I don't think has ever really Made it to the public eye in terms of the paperwork. Next thing that happens after that, when of 2018, you see that the prosecutor who was in charge of the Harvey Weinstein case, someone named Maxine Rosenthal at the DA's office, she gets replaced with a different DA. I've actually tried a case against Maxine Rosenthal, but she's a very experienced sex prosecutor. She, for some reason, gets replaced by a different DA, Jonah Luzzi. And again, we don't really know what goes on there. There was some, internal politics.

And then finally in May, 2018, the Harvey Weinstein indictment finally comes out and he gets indicted on on two sets of charges. Of them is a charge and that's in connection with a rape, rape in the first degree and rape in the second degree. That's in connection with the actress, Jessica Mann. Then a different charge that later gets dismissed. They end up adding two different new charges to the indictment. They add a charge in July of 2018 for an actress named Miriam Halle.

The allegation there is that Harvey Weinstein forced oral sex on her. Then they add another charge with respect to Annabelle Shiora in August of 2019. And the allegation there he is raped her. That charge, interestingly, is time barred. It's from a 1990s account, but they're using it to get at a different charge called predatory sexual assault.

And sexual assault is basically if you've already committed one crime of rape and then you commit in another, you can be charged with this very serious, in New York, considered to be an A2 felony. So those are are the individuals they move forward on.

0:10:30 Thomas: Wow. Yikes.

0:12:02 Thomas: That kind of gets around the statute of limitations?

0:12:05 Liz: Yeah, it gets around in the sense that he's being used as what would be described as the predicate for predatory sex assault. So predatory sex assault is more than one sex assault, so you say that predicate is this incident with Annabella Sciorra that can't be charged because it's past the statute of limitations for rape. And then you say the second offense is the rape of Jessica He would have to prove both of them.

0:12:13 Thomas: Okay. Oh, do you have to prove both of them then? Oh.

0:12:29 Liz: And say, as interestingly, he is acquitted upon that count. So what you can take from that is that the jury did not find that the prosecution had proved their case as to the rape of Annabelle Sciorra beyond a reasonable doubt.

0:12:41 Thomas: Know like which one they didn't prove beyond a reasonable doubt? Or could it have been like, okay, the second one, sure, but we don't believe this historical one or something?

0:12:50 Liz: Exactly right. And the way that you you know, this is what he is convicted on. So he charged with rape in the first degree and rape in the third degree in connection with assault the on Jessica Mann. The jury acquits him of

0:13:02 Thomas: Can I pause you? And no, to get any gory details, but like I what would be the difference between that those degrees exactly.

0:13:08 Liz: Rape in the third degree is engaging in sex with somebody without that person's consent. And the way that you look at consent in such a thing, is in determining whether a defendant did not have consent, is you look at what an objectively reasonable person in the defendant's position would consider to be consent. So you're not looking at whether the defendant thinks himself subjectively that he has consent, but you're looking at what would an objectively reasonable person think. So if Weinstein tries to have sex with someone and that person says, I do not want to have sex with you, an objectively reasonable person would know and think that not have this person's consent. Rape in the third degree. Rape in the first degree involves forcible compulsion, uh, so that there's an element of force in that, uh, so that's the difference between the two of them, for what it's worth. Rape in the second degree, um, to do with basically someone who's under the age of 18, so that's why you don't see that charge here.

0:13:51 Thomas: Okay. Gotcha.

0:14:02 Liz: Um, know, he gets acquitted of rape in the first degree as to, uh, Mann. He's convicted of rape in the third degree. So the jury rejected the theory that it was done with force, but they, they did accept a theory that he did not have Jessica Mann's consent. And then he's also convicted of a criminal sex act in the first degree for the offense with Miriam Halle. And that was the offense where he was alleged to have forced oral sex upon her.

But yeah, he's acquitted of the two counts of predatory sexual assault, which means effectively they didn't believe Annabelle Sciorra's account of the rape, or they didn't believe it was proved beyond a reasonable doubt. And they reject on, as I say, rape in the first degree. So are two counts that he's convicted of, which are both very serious. Sex Act in the First Degree, a sentence of anywhere from five to 25 years, a Class B violent felony.

And then actually rape in the Third Degree is actually a considerably lower sentence. It is one, a a third to four years. So he gets, basically, sentenced to 20 years on the criminal sex act in the first degree, and he gets sentenced to three years on the rape three in the third degree. And that's going to be running consecutive to the 20, 20 year sentence. So that means he does 20 years and then he does the one, in a third to four years.

0:14:02 Thomas: Interesting. Okay, okay.

0:15:18 Thomas: Oh,

0:15:19 Liz: So he gets a lot of time.

0:15:19 Thomas: Wow. That's the what we're talking about, right? That one, so that we're caught up to

0:15:22 Liz: What we're talking about. And then what happens after that? So he get convicted. He appeals as any criminal defendant would. He appeals his decision. He's convicted in February of 2020. He, it goes to New York. First, the kind of layer of appeal court is, is called The First Department. And The First Department looks at cases that are coming out of Manhattan, among other places. In June of 2022, so it's about a little over two years after he's convicted, the first department issues a decision upholding his conviction. That's stage one, but that doesn't mean that you're the end of the line. Court called the New York Court of Appeals. In order to appeal your case, you have to get permission to do so. And so, done this before and I was unfortunately rejected, but write you a letter to the court explaining why you would like to appeal and single justice determines whether or not to accept your appeal.

0:15:28 Thomas: -hmm, sure. Oh, Wow. Oh Wow, is that like, essentially like in the Supreme court kind

0:16:13 Liz: Exactly, it's the New York equivalent of CERT. Get the permission to appeal, and lo and and behold, in April 2024, you get the New York Court of Appeals, you decision stating, you Know, in broad terms, the Harvey Weinstein did not get a fair trial. That this was this error, that is to say that he they should get a new trial, this was not harmless, this is not something that they're going to overlook. And these are the reasons why and I'll he does is, by the way, 4 -3. And the New York Court of Appeals actually at the moment has a liberal, more conservative bent. And so it basically goes along those ideological lines. The ideological lines of protecting the rights of defendants versus versus being a little bit more prosecutorial focused. It's not a coincidence that the famous dissent on this is, in my view, is written by someone who is a former prosecutor. That would be the...

0:16:42 Thomas: Wow, yeah, oh.

0:17:06 Thomas: Wait, are you saying that the right-leaning people were like, yes, he should stay in prison, and the left-leaning judges were like, he didn't get a fair trial. Wow, that is a twist I didn't expect. That but I guess it makes sense. I mean, it's competing kind things, like on one hand it's like, well, uh, the people on the right are the ones downplaying anything related to me too or any of that, but when we got a question of kind rights sort of thing and criminal justice, yeah, okay, okay, that makes sense. Right.

0:17:07 Liz: Exactly.

0:17:35 Liz: Decision that comes down is pretty detailed. It is pretty powerful. It's very obvious that there's significant disagreement in the court, but the, it begins, couple the of lines of the majority decision I think are worth, I of highlighted them, are worth reading. Rivera, who's a justice in the New York Court of Appeals, she writes this decision and she begins by saying, every person accused of a crime is constitutionally presumed innocent and entitled to a fair trial and the opportunity to present a defense. Under our system of justice, the accused has a right to be held accountable only for the crime charged, and thus allegations of prior bad acts may not be admitted against them for the sole purpose of establishing, and this is a key word here, they're key for criminality.

0:18:20 Thomas: Wow.

0:18:21 Liz: That's, you know, she goes on to say a little bit further down the paragraph, it is our solemn duty to diligently guard these rights, regardless of the crime charge, the, the reputation of the accused, or the pressure to convict. Majority opinion says that Harvey Weinstein did not get a fair trial for two reasons.

The first reason has to do with something we've talked about quite a bit on gavel -gavel in connection with the Trump trial, that comes up in my cases all the time, and in my cases going to trial, and it's something called Molyneux evidence. Molymeux evidence in New York, the name Molyneux, by the way, just comes from an old Court of Appeals case from New York.

And the idea of MolyNEU evidence, is or Molyneux rule specifically, is that evidence of uncharged crimes or prior misconduct or bad acts generally, they cannot be used against the defendant in a criminal case to establish propensity, propensity to commit a crime. So you can't, outside evidence that is not charged, because I previously stole a boat, I'm more likely to steal a boat again. That's sort of a flippant example. But because Harvey Weinstein engaged in other uncharged acts of sexual assault, he's more likely to believe that he engaged in sexual assault here. You can't do that. That

0:19:40 Thomas: That's a tough one, I get it, but are there, are there like, on one hand you you, a more sympathetic defendant on there and it, it makes more sense, you are, got to be exceptions, right? Isn't there? I mean, I know it's New York specific, but I feel like commonly there's something understood to be like, well, what if they have a pattern or a MO or whatever, like, are there kind of exceptions to this, to get this stuff in sometimes?

0:20:03 Liz: Absolutely. And that's exactly the idea. The idea is that sometimes, however, this evidence is highly probative. It's highly relevant for the jury to understand other issues in the case. So there's different recognized exceptions to the Molyneux rule, and those include motive, intent, common scheme or plan, identity, absence of mistake, completing a narrative, rebutting a defense, which comes up quite a bit in the Trump trial, context of the relationship. You know, a really common circumstance where I Molyneux evidence admitted against criminal defendants, and this is very well recognized in New York, is in the context of domestic violence cases.

0:20:42 Thomas: Yeah.

0:20:42 Liz: And the reason why that's admitted is oftentimes to show that what's, know you called like the context the relationship. So to provide the jury with information that this sort of domestic incidents have happened before. This, if the defendant's argument is, I've never done this before, you then get to see, actually, did he, it, this time, this time. So it's rebutting a defense, providing context, a pretty famous case called Bierenbaum in New York, which to do with the stuff with the domestic violence of Molyneux. And in that case, a relatively famous surgeon killed his wife in her apartment and chopped up her body and threw it out of his private airplane into the sea.

0:20:49 Thomas: Oh my God. Wow.

0:21:22 Liz: Really grisly case that got a tremendous amount of press attention. And in that case, there were numerous documented times that that this individual, this defendant Bierenbaum had engaged in domestic violence against his wife. Right. There was tremendous documentation of that.

0:21:34 Thomas: Yeah. I feel like that's not a first try on crime.

0:21:36 Liz: Right. Right. The idea of admitting it there in Bierenbaum, right, is that it just seems like, you want to explain to the jury, he didn't just, especially in that case where they didn't actually have a body. And that was one of the issues with the case. He didn't just suddenly decide to kill his wife and their his apartment apartment, and chop her up and throw her out of the airline Like he previously engaged in this type of behavior. He was motivated and had an intent to harm her, right? And that's going back to one of the exceptions I mentioned, motive, intent to arm. For Molyneux evidence to come in, it can't be to prove that this person's a bad guy and he does bad things. And because of that, he's more likely to do this thing. It has to show be a particular theory, right, motive intent, all of those. Yeah.

0:21:59 Thomas: Jesus, man, you say that and I'm, I'm a lawyer, so I'm having a hard time kind differentiating that concept. Get all the concepts you're talking about and I think I understand it. But in practice, the difference between that doctor, I don't know, maybe you can highlight this somehow, like the difference Between that and why that goes in, because the things you're talking about with that doctor It wasn't like the same person, right? Was it the same victim that stuff got allowed in or different?

0:22:42 Liz: Was the same person.

0:22:43 Thomas: Oh, it was this. Okay, that's that seems like a different story, then. Okay. Gotcha.

0:22:46 Liz: I think that's a pretty key distinction. I think that's also what's important here. So it was to show the context that in that relationship, he consistently had the intent to harm her and the motive to harm her.

0:22:50 Thomas: Okay? Gotcha. Okay! That makes Sense. Well, that's dark. Uh, the That Guy dead or something? Please, like, Jesus Christ.

0:22:59 Liz: Is very, very dark. You know, I actually, I took a look. I was curious what, what he, he's still actually in prison. He's still in Sing Singh. And he was convicted. And apparently at his most, he's now parole eligible at his most recent parole hearing, he confessed. So, yeah.

0:23:08 Thomas: That's Something. Nah. Okay. Cool, well, back, back in the prison with you. I, a freaking messed up, cry. Okay, whatever.

0:23:21 Liz: Yeah, the idea of Molyneux. And so what the Court of Appeals says here is that they, prosecution in bringing in MolyNEU evidence, they didn't actually use it for what the claimed reason was. And what the prosecution claimed they were doing was to show his intent to show that he was raping someone, that he was doing this against their will without their consent, and then also without their content. And I think what's helpful to know, and I realize we haven't gotten into this yet, but it's helpful just to talk about what the actual Molyneux evidence was was in this case.

0:23:22 Thomas: Yeah.

0:23:53 Thomas: So

0:23:53 Liz: At the trail level, there three different different Molyneux witnesses.

0:23:58 Liz: Crimes. These are not part of the charging document. He's not being charged with this. And the reason that he's not being charged is it's either past the statute of limitations or it's not in the correct jurisdiction. It's not a Manhattan case. So there's someone who comes in and testifies that in 2004, she meets Harvey Weinstein in a nightclub.

He asks her back to his hotel room, leads her to the bedroom, puts Weinstein puts his hand up her skirt and tries to put his hand inside her vagina and then apologizes when she tries to leave. Another witness who similarly also around the same time in summer of 2005 that she meets Harvey Weinsteen in a Manhattan lounge. Exchange some cards. She gets invited to read a part for him, but actually just to see her in his apartment.

And as she gets there, he grabs her, throws her on the bed, and begins having intercourse with her. Says that she just totally froze in that moment. He was heavy and he weighed her down. Molyneux witness is someone in February 2013 in LA and says that meet they each other and that he pulls down her dress and masturbates despite her protests. So those are the things that come in. They involve different individuals. They also have some Molyneux evidence that comes in from Mann and she also alleges previous circumstances where he engaged in unwanted sexual behavior with her.

0:25:20 Thomas: So That, that's Molyneux too, even though it's that, so that you're saying that's the actual same victim? So these other, other ones were like different people, not charged, different jurisdictions, whatever, but there's also Molyneux that's the same victim? Yeah.

0:25:33 Liz: So And the thing is that Molyneux is a pretty broad category. It's anytime you Have like, quote, bad act or bad uncharged crime evidence, but it could be from that same person. It could be just Related to, I had a case that went to trial where we argued that one of the ways that they found our client was through, honestly, really good, NYPD found our client through really extensive use of surveillance. They got all these cameras and stuff like that. But one of the ways they kind of figured out and helped put together his identity and put him on a wanted poster was they got surveillance from a porn shop that he hung out in. Yeah.

0:25:37 Thomas: Okay. Oh.

0:26:07 Thomas: Yeah, you mentioned that, that in Gavel Gavel, right?

0:26:10 Liz: After the end of the crime. And so what we said was, listen, like, it's just totally like, and the video, by the way, of this was ridiculous, like, it showed him next to, like, a three -foot dildo in a porn shot. And And so we argued, you know, we could stipulate to certain things, or, you know, could we blur the background of that? Could we just try To make clear that it, it wasn't a porn shop. So it really could just be anything that kind of paints the defendant as being a bad guy.

0:26:26 Thomas: Right. Biasing The jury for reasons that, like, really, fair, technically speaking, to whatever the crime was. Okay. Argiments is brought to you buy HelloFresh. HelloFesh, you get farm -fresh pre -portioned ingredients and seasonal recipes delivered right to your doorstep. Skip trips to the grocery store, and count on HelloFresh to make home cooking easy, fun, and affordable. That's why it's America's number one meal kit. Can tell you why we love HelloFlesh so much. It's because we have no time. And we hate food waste. Well, at least I do. I won't speak for Lydia.

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0:26:38 Liz: So exactly.

0:28:07 Thomas: So I, but I just wanted to maybe step back from just, like, I person of casual news viewer perspective for a second and say, okay, when I saw this news, obviously, I and many others were like, all right, great, awesome, another rich asshole finding a way to get away free from consequences. Combine that with, the you know, you talked about, like, that weird 2015 decision not to prosecute, there's other, some weird stuff.

So I imagine I and a lot of other people are like, what is happening here? Is this bullshit? Is this kind inappropriate? Is this corruption? But then you combine that with, well, the decision was actually the four liberal justices, or whatever, judges on that, uh, and three conservative ones, and you start to go into these details, and it's like, okay, that, now I, now I don't know what to think.

But, and however, I still, I can't help but wonder, based on what you've said so far, maybe there's... There's more. Isn't one of the main things with Weinstein that he had a pattern of how he did this, like a, a, like, okay, pretend he was going to give an actress a job or something and lure them to the, like, the details seem very samey oftentimes.

And so I'm wondering why those examples that, that you brought up of the Molyneux evidence wouldn't be able to get in on, like, that kind of idea that it was kind of of a pattern, or what do they call it? An MO or whatever.

0:29:23 Liz: Is an idea of Molyneux. The New York law on what constitutes a pattern is a little more strict than what constitutes a pattern under the federal rules. And the other thing that sort of is an issue there, too, though, is that while sometimes pattern works, then starts to look like propensity, though. Right. It's like he did this this time. He did this because he didthis in a previous time because he did this in another previous time. That means he did it for the charged offense. And I think if you watch the oral arguments with the Court of Appeals, they kind of they bristle at a suggestion that a pattern is is really helpful here. Right, this idea. And then your law is a little more distinctive on it. It really has to be something a bit more than just someone back to their room or pattern of, in terms, sexually assaulting women who are interested in getting a part.

0:30:09 Thomas: Okay.

0:30:10 Liz: So that is a good question. And what the Court of Appeals says is basically, all of this stuff is used for propensity. They say that the responsibility of the prosecution to prove the intent. So here, to sex with someone without consent, or the Sex Act charge, which is to engage in compulsion when when he forced oral sex on someone, the intent is clear enough. So they had to just prove it with the act itself. And they say is explicitly, where the crime requires the prosecution to prove forcible compulsion, the intent required is the intent to perform the prohibited act, i.e. the intent of forcible compulsion. So, they say it's not helpful to see that he has these other incidents. You need to just proof it in terms of the act itself. You need to prove it just through that person's testimony.

0:31:01 Thomas: Yeah. You got to prove the instance. So this is hard because obviously this is, it's hard to imagine a less sympathetic defendant, but like, if you put it into terms, you know, that are more sympathetic, it, maybe it's somebody who used to deal drugs and they, they've stopped dealing drugs. They've They've tried to, you know, reform or whatever, but then they're busted on another thing and they're trying to offer as proof, like, well, look at all these other times this person dealt drugs. And we would want to be like, Well, yeah, but you'd have to prove specifically that this person was doing it again. Like, you can't just be like. Yeah, see, this person's a drug dealy person. So naturally, and hard to do it with this defendant. It certainly seems hard, but like that concept is what's going on, right?

0:31:09 Liz: That's exactly right. Isn't a more unsympathetic defendant. There's something like, I was looking at something like, there's over 90 allegations, again, from different individuals against Harvey Weinstein. Hard to find someone less sympathetic. That's also why this has to be really, really closely scrutinized. What the court is saying here is that these witnesses, these uncharged crime witnesses, they didn't have any bearing on whether in the actual charged incidents Harvey Weinstein had used force.

And really where they're, they're coming down, you know, although the Molyneux witnesses, their testimony is framed as evidence of the defendant's intent to use forcible compulsion and his awareness that the victims are not consenting, it really is just evidence of his propensity to commit sex crimes and and and that's the idea of the Molyneux, but I do want to talk about something else, called the Sandoval ruling, that I don't think has been as widely reported, but I think is also really interesting and really important. Sure, the Sandoval ruling, Sandoval is just also the name of another criminal case. Now, Sandoval is different from Molyneux evidence. Sandoval refers to, if the defendant is going to testify, what the defendant can be cross-examined on. And it refers to anything that goes to the defendant's credibility. So, like, for example, you violated a court order, or other anything that shows that, like, the defendant might be lying on the stand. It's

0:31:54 Thomas: Yeah.

0:32:19 Thomas: Interesting.

0:32:39 Thomas: Interesting Yeah.

0:33:21 Liz: Generally considered to be, it's really fully within the discretion of the trial court, uh, in order for something to be overruled, uh, like a Sandoval issue to be overwhelmed by Hill court, it would have to be a quote unquote abuse of discretion. And what's interesting in this case is the prosecution is trying to introduce a tremendous amount of Sandoval evidence. And, if Harvey Weinstein were to testify, and he did not testify, details about whether he verbally abused an employee and threw food at a different employee, whether he bullied, overworked, and verbally abused his personal assistant, whether he threw staples, whether he photoshopped the head of an actress onto a nude body without another consent. It doesn't look like the set of things that are supposed to go to someone's credibility.

0:33:35 Thomas: Wow.

0:33:58 Thomas: What?

0:34:07 Thomas: Yeah, this is interesting. So this was honestly like kind of a revelation on Gavel when we were talking about the Trump trial, because you're right. At least it seems to me, you're correct. I really have not heard much coverage of this. And it's felt like with with Weinstein and maybe with Trump that, like, this was, it feels like a weird gaming of the system, because you know, they're never going to testify. Like there is no chance.

I don't care if the judge had ruled that, like, you can't, you can even talk while you test, like you can't bring up anything while you testify, they're never going to have them testify. And yet what they do, and and this was just such a interesting insight that I just have not heard anywhere else, what they do is in the Trump trial, for example, is they go through this pointless ritual of, all right, well, you know, if Mr. Trump's going to testify, let's have an awful lot of hearings about hours spent deciding what the prosecution is allowed to bring up, what the persecution is allowed a grill him on. But the only reason is so that if the judge, like, you too far, then they have grounds for appeal, because he's never going to testify. And it feels like this way of gaming the system. But I also don't really see how else you could do it.

And it makes sense that, like, that's kind of how it has to work. And so I was just so, so blown away by that, um, of insight on Gavel Gavel, because I've just really never heard that explained before, and it's really fascinating. In

0:35:29 Liz: I think I would just push back a little bit on Thomas's point, like, in some respect, yes, they're not going to, you know, defendants in these cases rarely testify.

0:35:36 Thomas: I want to be very clear, I'm talking about those two, two specific, specific men. Like, there's... there's no way they're going to, right.

0:35:39 Liz: Yeah, right. But it is, first off, it's their absolute right to testify, right? And we shouldn't foreclose it or even attempt to foreclos it based on the fact that we think that it's very unlikely. It is their absolute right. And not only that, but their attorneys can't prevent them from testifying. If Trump wanted to testify, he can testify. If Harvey Weinstein wanted to testify, he can testify. That he can't is an absolute right that cannot be abrogated by his attorney, and that it's a horrific idea. And I would say every case that I've ever had that's gone to trial or almost gone to trail, any attorney at least considers what it would be like for your client to testify and advises your client on whether or not they should testify based on the evidence against them.

0:35:44 Thomas: Sure. Yeah. Mm. -Hmm, right. Yeah. Sure. Yeah.

0:36:20 Liz: And also potentially the Sandoval ruling. And Sandoval ruling would allow so many bad, another thing that I hadn't referenced, but that's in the decision, they would allow him to be cross -examined on the fact that he threatened to cut off another colleague's genitals with gardening shears. It's just, that's so inflammatory and really not relevant. And it also really doesn't go to credibility in in the sense of whether or not he's going to be lying while under oath.

0:36:20 Thomas: Yeah. Yeah.

0:36:40 Thomas: That's really, really not relevant. Yeah, he's Gonna fall through on that threat, yeah, yeah.

0:36:50 Liz: Right. Emphasized here is that these are just not necessarily criminal acts. I mean, they're not criminal acts, well, yes, cutting off your genitals with gardening shears would be, but it wasn't actually something that he did, and that it really doesn't have anything to do with how gonna tell the truth or not, and so it really curtailed this fundamental right that he had the right to testify. And, and have to say the Sandoval ruling here was just so extensive. It went so far, you know, I don't know how, yes, he probably was never going to testify, but certainly after that ruling, he could not testify. I

0:37:10 Thomas: Yeah.

0:37:23 Thomas: Yeah, no, very fair pushback, 100%. And, like, the other point is, um, the system and the state has the obligation to do their job correctly the whole time. I don't, it doesn't matter who's going to testify or not. What sounds like to me is, this what you're saying, saying these decisions sound insane, like, what in the world, why would the judge have let in all that stuff? Why would they, honestly, knowing that this is the game, this is what blows my mind with the Trump trial too, knowing that this is really kind of the game, why would the prosecution even bother trying to ask for a lot of this stuff? Because if they get it, it's just going to give him grounds for appeal. And aside, you, very the well -taken points you're making, we know that Weinstein was not going to testify, like he just wasn't. So like, why would the prosecution even want to go down that avenue? This is very weird that they did this, yeah.

0:38:08 Liz: It was a real mistake that they, engaged in. And I think, you Know, I think this happened for two, two reasons. One, you have prosecutors going to prosecute, you, you now, if you're a hammer, everything, everything looks like a nail. And I think that had this, this defendant who had a rich history of engaging in some, you know, behavior that they found, that they decided that they would argue to the court could be something that he should be cross examined on. And, and I think they made a huge mistake there.

0:38:16 Thomas: Yeah. Right.

0:38:35 Liz: Think the other reason, and this relates a little more to maybe some of the Molyneux, is I because they had, this was a case that was going to be highly scrutinized, it was going to be in the public eye because there had been some internal issues with the case. There'd been some criticism about not, of the individual in 2015, the Italian model, Gutierrez, also not taking apparently Paz de la Fuerta seriously, the internal shovels. I think they felt under a lot of pressure to to get, as any prosecutor would, but especially here, to make sure that Harvey Weinstein got convicted. And so they wanted to bring in additional evidence to just show that without a doubt, he had engaged in sex acts without the consent of individuals that he had engage in forcible compulsion. And so, they bring in an additional evidence at this point.

0:39:12 Thomas: Yeah.

0:39:26 Thomas: No, that makes sense. So, like, they, they wanted to not be seen as going too soft on them kind of thing, maybe reputationally, right?

0:39:33 Liz: And not just that, but they wanted a conviction. Right. And you have the more people you have who come and say Harvey Weinstein did this sort of thing to me, then, yeah, you're more likely to get a conviction, but then that starts to look exactly like why the Court of Appeals overturned this, which is to say for propensity. Right? It's always a dance with, OK, you're trying to get this sort of bad act, uncharged crime evidence. And what's your theory? What's your what? You know, and there can be some really narrow lines here.

But they kind of went over to the propensity side. And I think that they they really struggle to appeal. You I think they struggle to explain it. You you Know, one of the things I'll also note is the Court of Appeals arguments on the on this. They're available on YouTube and I watch them. And, uh, attorney that represents the district attorney of New York, Steven Wu is fantastic. Uh, he does a fantastic job arguing this. He's knows all of his cases. He responds, he lays out arguments, Harvey Weinstein's attorney, Idalla, who appears to be someone who will be his attorney at the retrial does a truly horrific

0:39:36 Thomas: Yeah. Okay.

0:40:33 Liz: Job. He notes how he was among the attorneys that tried the case. He wasn't the primary attorney that tried the case. There were others. And he's basically screaming at one point, telling the judges to trust him that this was used for propensity, that this was a case where the witnesses were saying that they tried force Harvey Weinstein away from them. So why would you bring in Molyneux when intent is so clear? The intent here, like, very clear if you believe the witnesses they did not consent, that they trying to push him away. Why would you bringing in additional evidence? Because already the prosecution had to prove this lack of consent, forcible compulsion. Mean, he says a bunch of weird stuff. He doesn't answer questions correctly. At the very end of his argument, he wishes all the judges happy Valentine's Day. One point, he says something like, what in this situation? It's not an intent to make macaroni and cheese. Oh, and he begins his argument by saying, this is a case about a man courting a woman.

0:40:40 Thomas: Oh. My God, yeah.

0:41:34 Liz: One of the most horrific, shockingly bad, cringeworthy argument by his defense attorney. So the last thing I would just note is that this is not exactly the trope of a rich man hiring a great defense attorney and winning an appeal on a technicality. This is a case where the liberal justices of the New York Court of Appeals felt that Harvey Weinstein, for these two reasons, these two categories of evidence, um, Molyneux and Sandoval, did not get a fair trial, and that's why they overturned the verdict.

0:41:46 Thomas: No. Kidding. Wow.

0:42:06 Thomas: What a story, because it, it really does turn out to be basically the entire opposite of what you might think, in so many ways. Like, yeah, that is so interesting. And it's funny that there's so many parallels to Trump, because it keeps, you keep thinking like, well, he's surely with all his, you know, at least the donations he's probably stealing from the Republicans, he is going to get the best attorneys money can buy. And then they like kind of suck. And I know that still money definitely gets you everywhere in the system, because even just doing any of this costs a crap load of money, and you have to have a crap load of money to, to even like be here. Um, it, like, is funny that they're not sending their best sometimes, like the, the rich, uh, powerful people hiring attorneys. They're supposed to be amazing. It seems like they're not sending their best. Yes.

0:42:29 Liz: Not And I kind of sometimes wonder how they, they end up with the people that they do. I I, astonished by watching, uh, Harvey Weinstein's attorney, his argument in the court of appeals. And, uh. Know, I'd heard within my own office, I work as a public defender, but I heard from colleagues defenders, that his attorney did a really poor job. And then I watched it and I was like, oh, my God, it's actually that bad.

0:42:55 Thomas: Yeah. Wow.

0:43:13 Liz: I feel slightly uncomfortable to be a defense attorney watching this. And Stephen Wu from the district attorney of New York does a phenomenal job, but he he does at various moments really struggle to explain why evidence was in brought except for, you know, for non propensity purposes. He does have moments, but he does best. Whereas Idalla is just all over the place and repeatedly screams at the justices, yelling, saying, just trust me, trust me. We were there. Uh, and that's, that's not, no, I, I have enough self-respect to never do that. So it's really remarkable, honestly, how bad his argument is and how unfocused he is. He doesn't really address specific cases. At one point, he just starts asking a series of rhetorical questions to the judges, to the justices. And one of the justICES just comes back to him saying, the judges here. The questions, you answer them.

0:43:26 Thomas: Yeah, I Wow. He ever tried to pull that one. Does that work? Is that a good, just, just trust me, judge that Oh man.

0:44:13 Thomas: Oh My God. This is an, okay. So do we need to do a lot awful fucking lawyers at this? Like this sounds incredible and this is available, wow.

0:44:21 Liz: It is available. Absolutely. It's on YouTube. I think we should. I mean, it's absolutely hilarious. Serious.

0:44:25 Thomas: I ultimately it's not, but yeah, it sucks. That he won, but yeah.

0:44:29 Liz: It's, I in some respects, right, could not be a more unsympathetic criminal defendant, but the Court of Appeals in making this ruling did so to protect the rights of criminal defendants to have a fair trial, even Harvey Weinstein.

0:44:44 Thomas: Yeah. Yeah. Fair.

0:44:47 Liz: In fact,

0:44:48 Thomas: And we should pin in that we very interested in that because that sounds hilarious, he just sounds like a, a like boomer lawyer trying to speak to the court's manager or something, like it's really, I don't know if that's what he is, but he sounds terrible, terrible. Um, I should also note that like I just know from interacting with you, like off the mic too, like you're super hesitant to at all kind call out a fellow defense attorney of any kind, right? Yeah.

0:45:11 Liz: I really do try to accord people a high level of deference and respect fellow defense attorneys, because I see them. Been there. I probably not always made the best arguments. I probably got slammed with objections by the prosecution. But this one is this it's just that bad that I can't help myself.

0:45:20 Thomas: Wow. And Yet he won, so it's like, that is the takeaway here, like actually the merits of the appeal are good. I mean, I don't, goods the right word, but like, yeah, the appeal had a lot of merit, I, I guess, right? I mean, is that kind of the takeaway here?

0:45:40 Liz: In my view, that's the takeaway. I mean, as a defense as attorney, I do not believe that Harvey Weinstein got a fair trial. I think that the Molyneux witnesses were brought in for propensity. I think that if you looked at the of the actual witnesses as the charged crimes, they needed to stand on their own. That is to say, the prosecution shouldn't have brought in other women detailing these really horrific allegations that Harvey Weinstein had engaged in non-consensual behavior with them.

What the prosecution had to do was was prove the case, showing the allegations from the actual women that basically those experiences, that Mann alleged that he had raped her, right? And that was, you didn't need to bring in another unrelated incident to prove that. The jury could just believe Jessica Mann. And that's what's going to happen now, right. It's not that it's reversed and there's not going to be a retrial.

There will absolutely be a retrial, I, I was was in court a few weeks ago and it was during the Trump trial, and also Harvey Weinstein had been brought back at the, you know, the same day, and, and that's because the district attorney office New York will be doing a retry on this case, and they just won't

0:46:49 Liz: Be doing it with this particular set of evidence based on the Court of Appeals ruling, not

0:46:49 Thomas: Yeah, that was going to be my next question. I mean does this mean he's a free man? I can't remember. I mean, what happens here?

0:47:00 Liz: Even close to it.

0:47:01 Thomas: Okay, good. Yeah, they

0:47:01 Liz: No no no he is not he is is not a free man. He has the conviction out of California. That's keeping him in. And then he's got this case pending and he's in on this case. So yeah, it looks like they're going to be doing a retrial. Funny enough, in front of a judge who I know very well, I actually did a trial in front him about a year ago, a rape trial.

0:47:24 Thomas: Call him the hammer. No, they have those stupid nicknames in real life? You got the hammer. They is it just like, oh, that's that judge and that's how you.

0:47:27 Liz: No. It's just that judge. I don't know if I have I have any nicknames for any judges or certainly not. Yeah. Any that I can share on this podcast

0:47:35 Thomas: Uh, weird. Because There Isn't Every single show or movie. Yeah, unless It's Like, "Oh, that's dick face McGee over there." This is me talking, I don't want to get you in trouble. This, that was me making joke, your honor's listening. That's not Liz at all, that was all me just being funny.

0:47:58 Thomas: So wow, that's a really interesting breakdown. And I, certainly if we can't trust this audience to parse those things, I don't know who we could trust. You know, the fact that it's not any sort of defense of this awful person or anything he did, but certainly a defense attorney like you, I mean, you're interested in defendants getting a fair trial and these kind of cases set the rules, you

0:47:56 Liz: Because I mean, no nicknams and right. I, And and I agree with that. And I just, you know, I realize I'm coming in hot with what seems like a defense of Harvey Weinstein. It's, it's not, it's a defense of the fact that he did not receive a fair trial. And it's not specific to Harvey Weinstein. It's specific to the rights. It has to do with the rights of all criminal defendants and the people that I represent. The fact that if this sort of evidence brought in is really prejudicial because juries might just say, listen, this person seems pretty bad in these instances. He's probably pretty pretty bad in the charge incident, he probably did it. And that's not the prosecution meeting its burden. That's not The prosecution proving the case beyond a reasonable doubt.

That the prosecution, you know, using other stuff to cover over potential holes or flaws in their case, or, as I say, just being prosecutors and just trying to throw the whole, you know, the whole bathtub in or whatever. And it's It's not how our legal system operates or should operate, and that's what the Court of Appeals said. Ultimately, even for these incredibly unsympathetic defendants, we're not going to look the other way. There's that old saying that bad facts make bad law.

This could have been a case where bad facts, Harvey Weinstein just is a walking bad fact, could have made a really bad Court of Appeals decision that seem possible to bring in this type of evidence, but they didn't say that. Instead, the Court of Appeals came down and said, it's our job to diligently guard the rights of criminal defendants, regardless of the crime charge, the reputation of the accused, or the pressure to convict. The accused has a right to be held to account only for the crime charge. There you go.

0:48:29 Thomas: Yeah, Absolutely. No, seriously, thanks for the breakdown, um, this sucks, but like, again, if the evidence is rock solid and if he did the stuff, I mean, I would hope that in this retrial they're going to be able to nail him again. Like, I would hope, it seems like from the description, I don't know, but from your description, this stuff really did seem kind of unnecessary. Like, I don't really know why you would need to get all that stuff in. Um, I mean, I guess fingers crossed that that they can nail him again. Oh.

0:50:22 Liz: I mean, and that's what we'll have to see. And I think the other thing that's interesting, at least I've seen headlines on this. Don't know if it's going to happen, but the district attorney of New York says, actually, you know, we have some additional charges we're going to add in. So, you there are other people who've come forward who, you you know, can be part of this.

0:50:34 Thomas: Wow. We Actually wanted another try, thank you for giving us another shot because we Were going To do it even harder. So Okay.

0:50:41 Liz: Yeah. There you go. Yep. Exactly.

0:50:44 Thomas: I like it. All right, well, Liz, thank you so much. Uh, forget, is there anywhere to point anyone to do anything to support you or follow you or anything, you online, or is it just you're Liz, cool defense attorney, and

0:50:57 Liz: I'm just Liz, cool defense attorney. So find me, find me. Come join me on gavel gavel.

0:50:59 Thomas: You On Gavel Gavel. I

0:51:03 Liz: Were you here?

0:51:03 Thomas: Can't wait till I can get that all public too. I know so many people haven't heard it yet, but they will, don't worry, they will.

0:51:09 Liz: That'd be great.

0:51:10 Thomas: Right, well, thanks so much and forward to speaking to you again.

0:51:13 Liz: Yeah. Thank you. Thank YOU so much for having me.

0:51:15 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.