At his first trial, Bill Cosby’s jury hung. At his second trial, it convicted. There was one overarching tactical shift between the two, that the prosecution was allowed to call witnesses, introduce evidence, of uncharged crimes for the purpose of tainting Cosby, notwithstanding the evidence of guilt for the crimes with which he stood charged. It worked.

With trial coming, although now pushed off to January, 2020, the New York County DA’s office is facing a similar tactical problem, and as was learned from the Cosby experience, its ability to get a conviction is substantially increased by the volume of prejudice it can dump on the defendant even if the evidence is lacking. So it obtained a superseding indictment to include the testimony of Sopranos actress Annabella Sciorra.

Ms. Sciorra, who first shared her story in 2017 with The New Yorker, said that Mr. Weinstein had dropped her off at her apartment in Gramercy Park after a film industry dinner in New York. The producer later appeared at her door, she told the magazine, and pushed his way into her apartment.

Ms. Sciorra said Mr. Weinstein cornered her into her bedroom even though she protested. She said he shoved her onto the bed, raped her and then performed oral sex on her, according to the magazine.

“I struggled, but I had very little strength left in me,” she told The New Yorker.

A damning story, for sure, but the story is from 1993.

According to the indictment, Sciorra has accused Weinstein of sexually and orally raping her inside her Gramercy Park apartment over the “winter season spanning 1993 to 1994.”

How does one defend against an accusation of a crime that took place during the “winter season”? How does one defend against an accusation of a crime that took place 26 years ago? Weinstein could not be indicted for the direct crimes alleged because of the statute of limitations, so the prosecution used another crime, Predatory Sexual Assault under New York Penal Law § 130.95, as a backdoor to getting Sciorra’s ancient allegations before the jury.

 A  person is guilty of predatory sexual assault when he or she commits
the crime of rape in the first degree, criminal sexual act in the  first
degree, aggravated sexual abuse in the first degree, or course of sexual
conduct against a child in the first degree, as defined in this article,
and when:
  1.  In  the  course  of  the  commission of the crime or the immediate
flight therefrom, he or she:
  (a) Causes serious physical injury to the victim of such crime; or
  (b) Uses or threatens the immediate use of a dangerous instrument; or
  2. He or she has engaged in conduct constituting the crime of rape  in
the  first  degree,  criminal sexual act in the first degree, aggravated
sexual abuse in the first degree, or course of sexual conduct against  a
child  in  the  first degree, as defined in this article, against one or
more additional persons;

Under this statute, Sciorra’s testimony would be introduced to satisfy the element of “one or more additional persons,” and not for an independent crime committed against Sciorra. While Weinstein is charged directly for two rapes, one in 2006 and a second in 2013, with a third having already been dismissed, and for the additional crime of Predatory Sexual Assault to allow the prosecution to introduce otherwise inadmissible evidence.

Why are these separate crimes being tried together at the same trial? The purpose is to dump as many women accusing Weinstein as possible to gain the prejudice of quantity to overcome the absence of quality evidence. And the law permits (but doesn’t require) such joinder.

Under New York state law, offenses can be consolidated if they meet certain criteria, such as if the offenses in question “are based upon the same act or upon the same criminal transaction,” or if proving one offense is supporting evidence for another offense.

By joining the offenses, prosecutors have successfully requested that all three alleged offenses be heard at a single trial, giving Sciorra her day in court.

Joinder is justified as a matter of convenience for the prosecution by not having to call the same witnesses, try the same issue, twice, as well as efficient use of a judge’s time. There is also an element of not allowing the defendant to enjoy “impunity” from the jury learning of relevant bad acts by breaking up related conduct into separate trials.

 (b)  Even  though  based  upon  different  criminal transactions, such
  offenses, or the criminal transactions  underlying  them,  are  of  such
  nature  that  either  proof  of  the first offense would be material and
  admissible as evidence in chief upon a trial of the second, or proof  of
  the  second would be material and admissible as evidence in chief upon a
  trial of the first; or
    (c) Even though based upon different criminal transactions,  and  even
  though not joinable pursuant to paragraph (b), such offenses are defined
  by  the  same  or  similar statutory provisions and consequently are the
  same or similar in law

The idea is that a defendant might have a fighting chance to defend against a single accusation, but if he faces two, or three, his likelihood of success of defending against all of them is significantly diminished. To add to the quandary, there is a synergistic relationship between the number of accusations and the perception of guilt. If one person accuses a defendant of the crime, they might be lying or mistaken But three people? Can all three be lying or mistaken?

To the extent few will feel any particular sympathy for Harvey Weinstein, who has long since been tried and convicted in the court of public opinion by those for whom evidence is whatever they feel it is, all of this might seem to be some pretty nifty lawyering by Cy Vance’s troops, led by ADA Joan Illuzzi-Orbon, although Sciorra has her own lawyer, the always-available-for-comment Gloria Allred.

Then again, when the defendant isn’t the guy you not merely hate, but are absolutely certain is guilty, the same tactics, the same laws, are available to similarly prejudice them and guarantee that they aren’t just defending against the allegations of committing a particular crime, or a crime that happened so long ago that it’s impossible to muster a defense, but against the prejudicial piling on of ancient allegations so as to crush the defendant under the weight of as many vague stories as the prosecution can throw into the same trial.