In 2015, Cy Vance made a decision. His office, the New York County District Attorney’s office, would not prosecute Harvey Weinstein for the sexual assault of Italian model Ambra Battilana Gutierrez, despite their being a recording of Weinstein admitting his conduct.  Perhaps David Boies, who contributed $10,000 to Cy’s re-election campaign when he was running unopposed, had something to do with it. Perhaps not.

But now, Cy has seen the light.

The appeals court decision surprised me because I had been to the trial and witnessed the honesty, raw pain and power of the survivors’ testimonies on the witness stand.

A very curious argument, even for Cy, beyond his flagrant appeal to emotion. Is “raw pain” a substitute for evidence? Does calling witnesses “survivors” prove a defendant’s guilt? But most importantly, if Cy had faith in the veracity and “power” of his accusers, why then did he go out of his way to muddy his case with propensity witnesses to bolster his complaining witnesses and fill in the gaps in the evidence? If he had faith in his case, he could have prosecuted Weinstein for only the crimes for which he was indicted instead of bringing in a smear campaign of uncharged bad acts that was the eventual undoing of his conviction.

And what of that undoing?

It troubled me because with no deference provided to the lower court, the Court of Appeals, in a 4-to-3 decision, had reversed a lengthy, objectively thoughtful, well considered and, importantly, unanimous opinion by a panel of the distinguished intermediate appeals court that sustained every single aspect of the jury’s verdict and evidentiary rulings by the trial judge at the Weinstein trial. That’s rare.

Rare? Is Cy saying it’s rare that the Appellate Division, First Department issues “lengthy, objectively thoughtful, well considered” decisions? Or that they issue decisions at all? Or that the Court of Appeals reversed the intermediate court?

It’s certainly true that most affirmances of criminal convictions are upheld. Heck, few ever make it to the Court of Appeals, which gets to pick and choose its caseload. But there is a reason why New York has a “supreme” appellate court, even if its naming structure is peculiar. That’s because sometimes the intermediate appellate court, thoughtful though it may be, gets it wrong. This is particularly true in cases where the overwhelming public view is that the defendant is guilty, guilty, guilty. It takes a very strong court to push against that public certainty of guilt.

This isn’t to suggest that the justices in the First Department are weak and easily manipulated by public opinion, but that they shared the public sentiment, shared the public’s belief that Weinstein was guilty and rendered a “lengthy, objectively thoughtful, well considered” decision to make sure he stayed convicted.

How do we in New York reconcile the decisions of law by members of our highest court that seem disconnected with the factual realities around rape and power differentials that lead to sexual abuse in the workplace?

This might not seem so at first glance, but if Cy was put on trial, this would be an admission against interest. Note that he recognizes that the Court of Appeals opinion was a “decision of law,” while his argument against it claims to be grounded in “the factual realities around rape and power differentials that lead to sexual abuse in the workplace.” Whether his belief about the factual realities is factual or ideological, what it is not is law.

After this Weinstein decision, how do we give faith to victims that the system can work to hold sexual abusers like Weinstein accountable? The answer lies not in the Court of Appeals, but in the legislature.

Perhaps “sexual abusers like Weinstein” would have been held accountable if Cy didn’t try to collaterally smear him with uncharged bad acts, and instead relied solely on the evidence of the crimes charged. And if the evidence of the crimes charged fell short, that’s how the system is supposed to work. When the prosecution can’t prove guilt beyond a reasonable doubt, the defendant should be acquitted, even if he’s as despised as Weinstein.

But neither Cy nor the very progressive New York legislature is willing to accept the premise that defendants should only be convicted when the evidence is sufficient to sustain their burden of proof as to the crimes actually charged. And so Cy holds hands with legislators who want to undermine basic evidentiary law and due process to craft a system that will convict the accused not merely based on evidence of the crimes charged, but evidence that he has a propensity to commit the crimes and, well, deserves convicting anyway. But only for sex crimes.

Today, it’s about Weinstein. Decades from now, when it’s used against anyone charged with a sex offense, will people remember that we changed the law to get one hated man and ended up undermining evidence and due process for anyone accused of a sex offense, innocent or guilty?