When the nightly news showed the B-roll of Harvey Weinstein entering 100 Centre Street for trial, I cringed. There he was, enfeebled.
Maybe this once-robust man, whether sex-hound or rapist, needed to use the walker. It was said that back surgery required it. That could well be true. But it emitted the odor of trying way too hard to create an impression of a old, decrepit guy, too harmless to commit the crime with which he was charged, too pathetic to not evoke the sympathy of the jury.
The physical appearance of the defendant at trial is a matter of strategy. Defending the Menendez Brothers, Leslie Abramson famously put her clients in button-down shirts and matching sweaters to give them a benign, preppie look. Preppie kids don’t kill their parents. And it worked, although not well enough to get them acquitted. Appearance is only one factor, after all. There’s also evidence.
On the most simplistic level, this is why defendants shouldn’t appear in court in their jail jumpsuits, giving the appearance of criminals from the outset. For defendants who have no family to help, it’s left to their lawyers to find clothing for them to wear that doesn’t taint them for no better reason than they look criminal-ish. But this is a palliative solution at best.
Putting a defendant in a suit when he’s not a suit-wearing kinda guy just makes him look awkward and uncomfortable. Then the suit rarely fits well, making it even worse. If the trial lasts a few days, the suit gets ripe and the jury can’t help but notice that he’s wearing the same clothing day after day. But it’s better than orange, and it’s often the best that can be done.
From there, it goes far deeper, as a trial is, in some respects, a play and the clothing and accoutrements are the actor’s costume, but the costume doesn’t end at the tie and jacket, which may be cut in the traditional style or something more trendy, according to the impression you’re trying to convey. It extends to the small details, the haircut, the eyeglasses, the shoes. And the walker.
Harvey Weinstein’s walker is playing a featured role at his trial. The decrepit-looking Mr. Weinstein, body hunched as he slowly rolls forward, contrasts sharply with his former image as a domineering Hollywood power broker now accused of rape and predatory sexual assault.
The contrast is jarring.
To the judge, jurors, lawyers, reporters and onlookers the walker conveys an image, accurate or not, of physical weakness and dependence — what I call the “the aesthetics of disability.” These physical and behavioral markers of disability produce visceral responses in jurors and the public that can lead them to be more (or less) sympathetic when weighing a defendant’s liability, public responsibility and, in the end, punishment.
There’s no doubt that the appearance of being disabled sends a message to the jury.
Similarly, research indicates that jurors are likely to be more lenient in assigning liability and punishment when a defendant is or appears to be 50 or older. In this sense, both age and disability status neutralize or offset juror and public perceptions of danger and risk.
But the generalized assumption that jurors will be more sympathetic based on age and disability is no guarantee. It’s got to work, for that defendant, for those circumstances, given the nature and evidence in the case. As usual, one-size-fits-all research doesn’t address the particulars of any specific defendant in any particular case.
So why should we care about what, in some cases, is a strategic use of this aesthetic in court? Criminal trials are performances, after all, with high stakes and lawyers squaring off in an adversarial system where their duties are to zealously represent their clients.
There are two questions raised by Harvey Weinstein’s use of a walker at trial. The first question is whether it’s wrong to put a defendant behind a walker as a prop to create the appearance of disability, to evoke the jury’s sympathy toward disabled people, should that not be true. From the perspective of those whose concern is directed to the status of disabled people in society, this likely stinks of disability appropriation and is terribly wrong. After all, if Weinstein doesn’t need a walker, then his usurpation of the means of the disabled is a lie. On top of that, he associates disability with his conduct, which is another burden the disabled could live without.
The second question is whether it works. Much as putting a defendant in a costume can help, it still has to be the right attire for its purposes. He has to be able to pull it off, of the costume not only fails to serve its intended purpose, but can backfire. Appearances are a double-edged sword.
Does the walker work? Does Harvey Weinstein’s use of a walker evoke sympathy? Does it at least not make you cringe, with the sense that whoever gave him this prop to use missed the mark by a mile?
It may well be that Weinstein’s walker is totally legit, that he needs it for mobility as a result of back surgery and wouldn’t be capable of making it into the courthouse otherwise. It could be that a choice was made between a walker and a wheelchair, assuming he required some device to enable him. Maybe his legal team would have sincerely wished he needed neither, whether for his health or because it just looks like he’s trying too hard to appear feeble. And if the walker, even if legitimately necessary, creates an appearance that works against him, making him look like he’s trying to game the jury, is there anything to be done about it?
..so sad…I have some reptilian tears here for ya Harv…
I don’t know that Weinstein is that good an actor that he could pull off using a walker if he wasn’t actually injured. In my experience, even people who have used one for several years, look awkward. ( I know when I had to use one for three months after a broken hip 22 years ago, it was awkward as hell and I was young and spry then.) My spouse used one for a couple of years and hated it because it was uncomfortable as hell. I can’t imagine an uninjured person using one on purpose.
I do ADA compliance on the construction side for a major corporation in 44 States across the country so I have some experience in this.
One thought to consider: there are a wide variety of walkers available, some very basic and dreary looking, while others quite sporty and high tech. Weinstein can afford any walker he wants, unlike many people who need a walker, and he chose the most ordinary and dreary looking model, tennis balls on the back legs and all.
I think the jury will just think he is faking it for the trial. If he actually needed the walker his team could arrange to get him to court early and to leave after the press and jury have gone.
It’s not easy in Manhattan to get any special dispensation from the court officers. I’ve tried. That said, whether he’s faking or not, the question remains whether the jury will think he is no matter what. That’s the question. As far as the jury is concerned, it’s always performance.
It’s not working on me. I thought hard about why and can only come up with the fact that it’s because I grew up with someone severely disabled and I know she did not like her unavoidable appearance of being crippled to lead anyone to think she deserved sympathy or was incapable in any way besides the obvious.
I also thought about what would work to warm me up to him if I happened to be on the jury and realized it would probably boil down to eliciting one the characters from any of the dozen movies he has produced that I would take to a desert island if they were the only things I could bring for entertainment.
Your job is hard.
It’s not working for me either, and if this is a prop, then it seems to be a bad call. But then, if he really does need it, what can you do? Sometimes, reality gets in the way of the best performance.
He was so young then.
So were we, my friend. So were we.
He should have split the difference: use a cane and fall down a couple of times.
If he fell down, he could break a hip. That would really hurt.
If it doesn’t break,
It may be fake.
At least he isn’t in a wheelchair with oxygen…
https://youtu.be/YhUZaAYsaGU
Methinks he weilds his walker with the practice one might have from years of use ( or a crash course watching such individuals) rather than the awkward stumbling of one who is still getting used to it legitimately.
It’s the tennis balls. I just can’t get over the tennis balls. I’m worried that somewhere in an alley in midtown Manhattan, there’s a poor old lady with a broken hip shouting, “Help, I’ve fallen, and Harvey Weinstein took my walker!” But, as you note, it all depends on if the jury buys it, and without the walker, you’re left with a large beefy client with a well-known reputation for throwing people around. I guess they had to do something. This was something 🙂
“I can’t imagine an uninjured person using one on purpose.”
C’mon, he’s facing the rest of his life in the pokey. I got no skin in this, but would imagine tattoos and piercings and more would be on order, if he thought they’d help. The trial rendered OJ free, if destitute. No money v. no ability to use the money meaningfully? Not a bad trade-off.
People have a hard time putting themselves in the likely very expensive slippers of a defendant. “I wouldn’t do it” is easy to say when it’s not you, but that has nothing to do with what someone else would do, and what they would do under circumstances like this. As a lawyer, if I thought getting “I Didn’t Do It” tattooed across his forehead would help to win acquittal, I would send him to the tat parlor. If the choice was get a tat or die in prison, life with a tat suddenly doesn’t look so bad.
Excellent point. Ultimately, the jury will likely never hear whether Harv has a valid reason for the walker or not. How the jury perceives him, however, may be a deciding factor. For me, it’s not just the walker, it’s the walker and the shoes. Dude has some fancy slips-ons, a suit, but this shitty walker. As you intimate, why a Craigslist walker and not a Lil’ Rascal, for instance? Seems like a risky gamble.
I had a client, a squatter charged with multiple counts of trespassing where she was trying to get title through adverse possession. (Judge finally let us put on an adverse possession defense of sorts.) She’d gone the entire trial wearing relatively decent street clothes that I got through her non-incarcerated boyfriend. But when the jury announced they had a verdict, client suddenly decided it was high time to show off her true colors. Unbeknownst to me, she decided to dress out in her orange jammies and entered court for the verdict that way. The judge was, how shall I say, unamused, as was the jury.
Obviously the client chose to put on her jammies. But it remains to be seen whether Harv’s jury sees the walker as a step too far.
Outsiders: But it diminishes the seriousness of the plight of the disabled.
Me: If it works, do it. But make sure it’s not gonna backfire or you’re fucked.
Outsiders: But what about the disabled?
Me: I don’t represent the disabled. I represent the defendant.
I might buy into the walker but what about the shoes? Did he get them at Walmart?
Those shoes probably cost as much as a small house. Whether they’re worth it is another story.
He should enter in a Hoverround , perpetually stuck in a right turn that makes bigger and bigger circles until it reaches the court house door.
It brings in both his physical disability and the mental disability of only being able to make right turns.
Sheesh, I can’t believe any Manhattan jury is going to care if he’s faking.
So Ms. Harris’s bio states that she is “Acting Professor of Law” at UC Davis. Never heard that title before, but in the context of this story, that’s hysterical.*
* Meaning funny, for those still getting up to speed on the new dictionary rules.
I was on a jury in a rape case, not in NY.
We weren’t told of the defendant’s record (which included violence against girlfriends) until after we’d convicted him. (Then it was clear that we’d got it right.) My question is: if it’s wrong for the jury to know about prior convictions, how can it be right for them to know about prior acts for which the defendant was not convicted? Googling Molineux left the impression that the judge is going to have to give some convoluted instructions to the jury, which will, I fear, not help because the first thing that we did as a jury was to discard anything complicated that the judge had said to us: we had the evidence to consider, and that was more than enough to deal with.
Among the silliest of the law’s assumptions is that juries follow instructions.