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Harvey Weinstein's Lost Appeal

Not realizing what lay ahead, Weinstein boasted of his support for the forces that were about to devour him.

Harvey Weinstein Los Angeles Court Appearance
(Photo by Etienne Laurent-Pool/Getty Images)

On Thursday, June 2 an appellate body in New York upheld the conviction of Harvey Weinstein. On its face, the ruling could hardly be less surprising. Harvey Weinstein is not the most sympathetic defendant. Nor the most photogenic, as the prosecution in his New York trial repeatedly pointed out. The state’s witnesses and attorneys said that he was “overweight,” “sloppy,” “hairy,” “had moles…on his rolls,” and a “lot of black heads.” They told jurors that he “smelled like…shit” and “just was dirty.” In short, they presented him as so repulsive—in physical as well as moral terms—that no woman would willingly have sex with him.

Yet the initial appellate body’s ruling was far from a foregone conclusion. During oral argument in December, that same body expressed grave doubts about whether Weinstein had received a fair trial.

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One issue concerned Juror 11, a Harvard-educated novelist named Amanda Brainerd. During voir dire, she denied that her debut novel, scheduled to be released a few months after the trial, concerned “predatory older men.” This was a transparent lie, but Brainerd was allowed to remain on the jury. When the state insisted during the appeal hearing that Brainerd had been forthright, one judge replied, “She wasn’t completely candid. At the very least you have to acknowledge that.”

Another issue was the prosecution’s use of so-called Molineux evidence, concerning prior bad acts with which Weinstein was not charged. Use of this type of evidence is generally limited. It risks leading a jury to convict a man because of who he is rather than because he has done what he was charged with. The appellate panel stated that in its use of Molineux evidence the prosecution had chosen to “pile on.”

Finally, the appellate body raised doubts about the trial judge’s Sandoval ruling, which permitted prosecutors to cross-examine Weinstein on an extensive list of prior bad acts if he chose to take the stand. A judge compared Weinstein’s treatment to that of more typical defendants: “There are trials every day where we have defendants who have a rap sheet a mile long, a mile long! They’ll have twenty felony convictions on their rap sheet… They usually just let one or two in.”

The judges’ reservations, expressed with clear exasperation, heartened the Weinstein team. Donna Rotunno, one of Weinstein’s defense attorneys, told Variety, “It couldn’t have gone better.” Damon Cheronis, her co-counsel, said, “We are very hopeful, based on the appellate court’s questioning, that they see this case for what it is.”

But in its unanimous ruling refusing Weinstein’s appeal, the appellate body dismissed the doubts it had once raised.

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The judges defended Juror 11 against charges of dishonesty. “To be sure, Juror 11’s own website and her publisher’s website, in describing her novel as being about the young female protagonists’ struggles with ‘predatory older men,’ contradicted her statements during jury selection,” they wrote. “However, this is not indicative of any intent by the juror to lie.”

Perhaps she neither noticed nor agreed with the way her novel was described on her own website?

Yes, the book, titled Age of Consent, does describe a boarding-school teacher, one Mr. Winkler, coming on to a fifteen-year-old student with the implicit promise of better grades (“‘Eve’—he lowered his voice—‘at my house you can be any age you like”). But how could the author be expected to regard such a situation as predatory?

“As a legal matter, a minor’s consent to the advances of an older man might not prevent him from being considered a ‘predator,’” the judges wrote. “However, to a novelist, such distinctions may not be relevant, and it is plausible that the juror did not view her character as a ‘predator’ in the traditional sense.”

The judges do not seem to have a very high view of novelists.

The panel also rejected the idea that Juror 11 stood to benefit financially from her presence on the jury, despite the fact that her role in the case was mentioned in promotional events for the book.

Doubts about the legitimacy of the Molineux and Sandoval rulings were likewise set aside. “The amount of Sandoval material is unquestionably large,” the judges wrote, “and, at first blush, perhaps appears to be troublingly so.” But they eventually concluded that the trial judge had been right to open Weinstein to cross-examination on a list of 28 acts spanning 30 years, because “the unique nature of the instant case required consideration of material not typically encountered in the ordinary case.”

In other words, the normal rules do not apply. This idea has always been at the heart of #MeToo. From Ronan Farrow’s slipshod reporting to the reckless prosecution of Weinstein, old standards have routinely been discarded where they might block the desired outcome. Behind #MeToo there seems to be an unspoken conviction that equal treatment will never lead to equal outcomes, and so it is necessary to accord favored treatment to the victim class, even in legal proceedings.

In 2019, Weinstein complained to the New York Post that people had forgotten all he had done for progressive social causes: “I made more movies directed by women and about women than any filmmaker.... I did it first! I pioneered it!” He pointed to his backing of films that dealt with drag balls and trans issues. “This was a company that took social issues and tackled them.” Not realizing what lay ahead, Weinstein boasted of his support for the forces that were about to devour him.

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