The Myth v. Harvey Weinstein

As of this writing, the jury has been out for three days. But today is Friday, and Fridays are magic in jury rooms, so you never know. But for the outside world, the verdict came in on Day 1: Guilty. Even people who know better, like Conor Friedersdorf, took for granted that Harvey Weinstein was guilty when he interviewed me for The Atlantic.

Friedersdorf: Let’s turn from the innocent to the guilty. I’ve wondered what effect #MeToo will have on them. Bill Cosby and Harvey Weinstein are no longer able to marshal their wealth to transgress with impunity against women after woman. To me, that’s progress, and I celebrate the careful journalism that documented their misdeeds and prompted criminal probes.

Greenfield: And then there’s the poster boy for #MeToo, Harvey Weinstein, who has already had the charges based on one accuser dismissed because it was revealed that her allegations were false in that she knowingly engaged in sex to get a role, fully aware of the deal she made with the devil. Other charges have other issues. As he’s yet to be convicted of anything, let’s not assume the verdict by the Court of Ronan Farrow is inviolate.

Harvey Weinstein has now gone through a trial. Perhaps you heard about it? But did you hear how the trial really went, or did you hear about how guilty he really is, because the people telling you the story want him to be, believe him to be, guilty? As Christina Hoff Sommers said, “Best article yet on Weinstein Trial. And it’s in The Nation.” Since ThinkProgress went under, there is no more progressive outlet than The Nation, and there it was, an article by JoAnn Wypijewski, and it said aloud what should be clear to everyone.

I don’t think anyone is prepared for this,” a feminist activist in the public line outside Room 1530 of New York State Supreme Court said during a break in testimony late in Harvey Weinstein’s trial for rape and sexual assault. ‘This” meant the possibility of acquittal or a hung jury.

They were, “unintentionally,” thinking like jurors. Others in the media were not.

Those reporters betrayed no curiosity about the public observers’ assessment of events, at least not that I witnessed across the many days I attended. On elevators and in the restroom, their banter stopped abruptly when they noticed us. For the most part, their dispatches parroted the prosecution’s narrative.

There was always the possibility that a jury would acquit or hang, just because nobody knows what a jury will do. But for this small group of people who sat through the trial, heard the evidence, was a proxy for the jury even if they came in believing with certainty that Weinstein was guilty, the post-evidence and argument epiphany was real.

“It is a very weak case.” News accounts I’ve seen have emphasized only strength. They did not acknowledge defense attorney Donna Rotunno’s closing as a methodical review of evidence, which raised a mountain of doubt, or describe Assistant District Attorney Joan Illuzzi-Orbon’s as a digressive appeal to emotion, which repeatedly declared Weinstein a “predatory monster” but otherwise sowed confusion. Instead, the media largely characterized the defense argument as an attack on women and sidestepped the vital matter of whether the prosecution had proved its case.

Nonetheless, Harvey Weinstein might be convicted, because nobody knows what a jury will do. But as pointed out, it was a “weak case.” And not just a weak case, but a weak case even after Judge Burke and the prosecution loaded the dice as much as they  could, by putting on propensity witnesses against Weinstein, the trial within a trial, even though he wasn’t charged with their accusations. Then he doubled down with the jury whose deceptive answers were discovered in time.

One of them has a debut novel coming out in July that involves young women interacting with “predatory older men,” according to one description of the plot. She was not forthcoming about this during voir dire, and the defense, which had run out of peremptory challenges, sought to strike her for cause.

The judge disagreed, and disagreed again on February 18, when the defense moved to replace her with the first alternate, producing a review she’d written during the trial of a book involving a “repulsive” predator. It’s hard to see how her commercial prospects do not put a thumb on her decision. Convicting the monster would gain her instant media cachet; acquitting him would likely have negative consequences.

A conviction will land this juror a prime spot on Oprah. An acquittal will be bad for sales. Unlike other cases where post-conviction investigation into juror bias and misconduct has raised cries of impropriety, this was known before deliberations began and so, with the wave of a hand, she could have been removed from the box and replaced with an alternate. Now that they’re three days in, the situation has changed. After a verdict, it will have changed significantly.

Despite all of this and despite the presumed lens through which Wypijewski walked into the courtroom in the trial of The People of the State of New York v. Harvey Weinstein, she walked out realizing it was a weak case, not because of the narrative, but because of the evidence.

They’ve been told to use their common sense in evaluating the evidence.

When all else fails, the prosecution’s last resort is common sense. Whether that’s sufficient to make their conviction remains to be seen, but Wypijewski’s article in The Nation reflects something remarkably uncommon: integrity.

11 thoughts on “The Myth v. Harvey Weinstein

  1. Kathryn Kase

    Sorry for this slightly off-topic comment, Scott, but what’s the state of legal and factual sufficiency review in the NY appellate courts these days? Should this prosecution result in conviction, it seems headed for sufficiency review and, of course, I’d love your opinions on whether the appellate courts might be more sober than the courts of public opinion.

    1. SHG Post author

      The law hasn’t changed as to legal or factual sufficiency, and “against the weight of the evidence” remains intact. But it’s still as rarely invoked as before, and the Appellate Division, First Department, hasn’t sobered up much in the last generation.

      That said, the Molineax and refusal to remove the juror issues could have some traction.

  2. B. McLeod

    The mere fact that the jury is asking questions and revisiting specific testimony indicates that they are trying to decide the case based on the evidence and the court’s instructions, rather than the state’s “burn the witch” thesis. This by itself says a lot for the presentation by the defense.

    1. SHG Post author

      Sometimes, that’s what happens. No mass trashing this time, and this was the most-read post of the day. It’s not as if I can make people comment. It’s unclear to me whether it means something or not, but c’est la guerre.

  3. Conor Friedersdorf

    For the record: I did not assume that Weinstein was guilty of any particular rape charge, or any rape for that matter. I did assume he was guilty of marshaling his wealth to transgress against women and treat them badly. In your response to me you note that in one case an actress apparently slept with him willingly to get a role… which is, at best, a transgression against the other actresses who tried out for it. More broadly, Weinstein himself said,

    “I came of age in the 60’s and 70’s, when all the rules about behavior and workplaces were different. That was the culture then. I have since learned it’s not an excuse, in the office – or out of it. To anyone. I realized some time ago that I needed to be a better person and my interactions with the people I work with have changed. I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it.”

    That Weinstein treated women badly in the workplace, then the focus of #MeToo, and used his wealth to escape normal person consequences for it for a long time is not in doubt. And as you rightly and invaluably insist, that doesn’t mean he’s guilty of rape or ought to be thrown in prison.

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