Several appellate justices said Wednesday that they worried that Harvey Weinstein had been subjected to “overkill” at his criminal trial in New York last year.
Weinstein, the disgraced Hollywood producer, is appealing his conviction on charges of sexual assault and third degree rape, which resulted in a sentence of 23 years in prison.
At a hearing before the Appellate Division, First Judicial Department, on Wednesday, three of the five justices expressed serious concerns that Justice James Burke had erred by allowing prejudicial evidence at trial that could impugn Weinstein’s character.
“You’re really arguing this was not overkill?” Justice Sallie Manzanet-Daniels asked Valerie Figueredo, the assistant district attorney representing the Manhattan D.A.’s office. “I don’t see how there’s a balance there on that.”
The defense has argued that Burke should not have allowed three women — Dawn Dunning, Tarale Wulff and Lauren Young — to testify at the trial. Each of them alleged that Weinstein had sexually assaulted them after they had visited him for a business meeting. The women’s testimony — called Molineux evidence in New York — was used to show a pattern of sexual misconduct in order to support the allegations for which Weinstein was on trial.
Burke also allowed so-called Sandoval evidence, which can be used to rebut a defendant’s testimony at trial. Weinstein did not testify in his own defense, but his appellate attorney, Barry Kamins, argued that was partly because Burke had granted prosecutor’s request to bring up as many as 28 other incidents to attack Weinstein’s credibility.
“He doesn’t get convicted because he’s a bad guy,” said Justice Judith Gische. “He gets convicted for these particular crimes.”
Manzanet-Daniels asked why the three women whose alleges were charged — Jessica Mann, Miriam Haley and Annabella Sciorra — were not enough. She worried that the Molineux witnesses were used to demonstrate a “propensity” to commit crimes, rather than a signature pattern. She added that judges typically bar prosecutors from going deep into a defendant’s rap sheet.
“To pile on with three uncharged complainants is leaning really close to that propensity line,” she said.
Kamins also argued that Juror 11 at the trial should have been excused because she misrepresented the subject of a novel she had written. The justices seemed far less interested in that issue.
Weinstein is currently housed at the Twin Towers Correctional Facility in Los Angeles, where he is awaiting trial on 11 other charges. That trial is not expected to begin before next summer.
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