Weinstein appeals New York Sexual assault conviction

Harvey Weinstein arrives at Manhattan Criminal Court on Monday, Feb. 24, 2020. Rose McGowan’s fraud claims against Weinstein, his lawyers, and a spy agency survived a round of dismissal motions in federal court this week. Barry Williams/New York Daily News/TNS

Harvey Weinstein formally appealed his rape conviction Monday, arguing the combination of a biased juror and a New York City judge’s decision to allow prosecutors to use evidence that wasn’t connected to the crimes for which the mogul was standing trial led to violations of his constitutional rights.

The Miramax co-founder and disgraced Hollywood icon was convicted of rape and a felony sex crime in February 2020 and sentenced to 23 years in a New York state prison the following month, bringing an end to a years-long saga that helped spawn the -MeToo movement as more than 80 women accused Weinstein of sexual abuse.

Weinstein has also been charged with sexually assaulting five different women in Los Angeles and Beverly Hills, and a hearing that could lead to his extradition to California is scheduled for later this month.

“Mr. Harvey Weinstein’s appellate court brief is a damning indictment of his criminal prosecution,” Juda Engelmayer, Weinstein’s chief spokesman, said in a lengthy statement. “A prosecution deeply influenced by intense and even magnified moral outrage over claimed sexual misbehavior of powerful men, special interest groups seeking to benefit off public fury, and sensational (often inaccurate or prejudiced) media coverage.”

A spokesman for the Manhattan district attorney’s office said prosecutors will “respond in our brief to the court.” The Los Angeles County district attorney’s office did not immediately respond to a request for comment.

In the 160-page appeal, Weinstein’s legal team once again attacked the credibility of the six women who testified at his 2020 trial in lower Manhattan. While most of the allegations were at least corroborated by the testimony of others whom the women told of the alleged assaults around the time they took place, Weinstein’s legal team questioned why they stayed in contact with the mogul — or in some cases continued having sex with him — after the dates of the alleged crimes.

But in their appeal, Weinstein’s lawyers also zeroed in on a series of legal errors they allege were committed by New York Supreme Court Judge James Burke, mistakes that they argue made it impossible for Weinstein to receive a fair trial.

Juror Amanda Brainerd, they allege, should have been removed from the jury pool due to the content of her debut novel, “Age of Consent,” which was published last year and tackled themes of sex and “predatory older men,” according to a description on the author’s website. In their appeal, Weinstein’s lawyers argued, Brainerd was not honest about the nature of the novel during jury selection and criticized Burke for failing to remove her from the jury pool after the defense had run out of its allotted number of challenges to potential jurors.

A representative for Brainerd did not immediately reply to a request for comment.

Weinstein was convicted of assaulting former production assistant Mimi Haley and once-aspiring actress Jessica Mann last year. He also faced a predatory sexual assault charge connected to a rape allegation made by actress Annabella Sciorra in the early 1990s, but the jury acquitted him of that charge.

In their appeal, Weinstein’s lawyers argued the jury was unfairly influenced by Burke’s decision to allow testimony from three other “prior bad acts” witnesses, who had also accused him of sexual violence that was not directly connected to the crimes charged in the Manhattan case.

Burke had previously ruled that the other women — including one whose allegations are the basis of some of the charges Weinstein faces in Los Angeles — could testify to the mogul’s intent to use violence and force to cow women into sexually pleasing him. In their appeal, Weinstein’s legal team argued the testimony was irrelevant to the charges filed and instead only served to weaken their client’s standing in front of a jury.

“Weinstein’s trial was overwhelmed by excessive, random, and highly dubious prior bad act evidence, none of which shed light on disputed issues relevant to the charged offenses,” the appeal read. “Because the evidence on the charged offenses was weak, the prosecution inundated the jury with copious tales of alleged misconduct (much of which was not criminal in nature) that served no legitimate evidentiary purpose but merely depicted Weinstein as loathsome.”

Weinstein also wanted to testify on his own behalf, according to the appeal, but had to surrender that right when Burke said he would allow prosecutors to cross-examine Weinstein about a wide array of allegations of misconduct beyond the scope of the charges he faced. That decision, Weinstein’s lawyers argue, effectively robbed him of his right to testify.

“If he took the stand, the prosecution would have carte blanche to put before the jury, twenty-nine alleged prior bad acts spanning the past thirty years,” the appeal read.

The appeal also challenged Burke’s decision to limit the testimony of a “false memory” expert, Elizabeth Loftus, whom Weinstein’s lawyers hoped to use to cast doubt on the veracity of the mogul’s accusers. While Weinstein’s legal team has cried foul, some critics and academics have decried Loftus’ testimony as one-sided and misleading in sexual assault cases.

Weinstein’s lawyers also argued prosecutors failed to disclose evidence that Mann — who described her relationship with Weinstein as consensual at times, but also alleged it often collapsed into violence and abuse — had continued to engage in a consensual relationship with him until 2016, well after the date she alleged she was raped. The appeal also questions whether Weinstein could have even been charged with assaulting Mann, noting the third-degree rape charge was filed 70 days beyond the expiration of the statute of limitations.

It remains unclear how the appeal might affect Weinstein’s case in Los Angeles. The mogul is expected to challenge his extradition to California at a hearing next month, and trials in L.A. County have been slow to resume due to the COVID-19 pandemic. Attempting to carry out jury selection in such a high-profile case — a process that took weeks in Manhattan last year — could prove incompatible with social distancing requirements.

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