Being bad is not a reason for conviction

Dear Readers, Seven years ago, the “Me Too” movement exposed Harvey Weinstein as a bestial bully. He was arrested for multiple counts of sexual assault and has since remained behind bars, ultimately convicted in New York and California.  Except, his conviction in New York has been overturned on appeal.

An appeal is not a new trial or a factual re-trial. It is a challenge to the underlying legality of a trial. Prosecutors do not have an independent right to appeal (they can do something called a cross-appeal) as only defendants have a post-trial right to an appeal.

Someone convicted can always try and claim a conviction is factually flawed, but the appellate court has to assume the jury reached the right result for the right reasons. It is only where there was a complete absence of facts that an appellate court can reverse the conviction.  

On the very rare occasion this happens when the appellate court sends the case back to the trial court (called a remand), it does so with very specific instructions. It tells the trial court to enter a judgment of acquittal, or not guilty because there were insufficient facts to sustain a guilty verdict. When this happens, the accused walks free as if the jury found him or her not guilty. This is not Harvey Weinstein’s new reality. He gets a new trial in New York – the conviction and prison term in California remains unaffected.

The majority of successful appeals hone in on legal errors about evidence, jury selection, or jury charges. Evidence errors can be foibles of the prosecution, withholding evidence or witnesses who “go of the rails.” These are about as rare as convictions reversed for lack of evidence, primarily because a trial judge can often issue corrective instructions to a jury or make other decisions to “correct” the error, understanding the proverbial bell never gets unsung.

This brings us down to the main culprit – the trial judge. We have recent examples of judges having to show great restraint with Donald Trump’s civil and criminal trials.  They all showed remarkable judicial temperament in the face of public scrutiny, pressure, and disrespectful behavior. A normal litigant would have been jailed for the stunts Mr. Trump pulled.  They each comported themselves with one goal in mind: a result that “sticks.”  They each wanted to make sure that, whatever happened, the verdict was bulletproof.

Judges have to be careful not to overstep their authority. They have to appear always as impartial and even-handed. They have to balance the prosecutor’s right to try a case with a defendant’s right to a fair trial. We do not want people going to jail because of character flaws, impermissibly admitted evidence, or a show of bias. Trying a case to completion is hard. Making sure it is done fairly is even harder.

Harvey Weinstein is a public disgrace of a human being.  He is the lowest of the low, acting like a corporate bully and sexual molester. However, his public persona is not on trial; a jury has to hear evidence and deliberate with only it in mind, in conjunction with the judge’s jury instructions as a guide. Especially in today’s world, it’s hard for someone like him to get a fair trial. This is the task of a trial judge.

Over eighty (80) women have accused Mr. Weinstein of sexual assault, and that is probably not all of them. He was on trial based on the accusations of three (3) women, and there were three (3) more women who recounted their uncharged horrors. He won a new trial because of the unindicted conduct and because the judge was going to permit the prosecutors to explore the smorgasbord of complaints from other women if he testified.

It is impermissible to convict someone based on evidence of “other conduct” without a clear showing of relevance. And, it needs to be so relevant that the admissibility overcomes any possible taint from its admission. The one thing you want to avoid is a conviction partially premised on bad conduct unless it shows something relevant about the state of mind, motive, or lack of mistake; you don’t want a jury to convict because if “he did that too, so he must be guilty.”  

Harvey Weinstein was convicted because he was a bad man. New York prosecutors have to start all over and give him the fair trial he deserves, though a despicable human being he might be.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.