The imprisoned Hollywood producer claims in an appeal brief he is entitled to a new trial that is not “tainted by excessive evidence of his purported bad character.”
MANHATTAN (CN) — One year into a lengthy rape sentence that has dovetailed with the outbreak of Covid-19, Harvey Weinstein delivered his long-awaited appeal on Monday.
A Manhattan jury had deliberated for five days before delivering a split verdict that convicted Weinstein of committing a criminal sexual act and third-degree rape, but acquitted him on the more serious offense of rape in the first degree and two counts of predatory sexual assault. Three weeks later, Judge James Burke sentenced Weinstein to 23 years in prison. The date of Weinstein’s sentencing, March 11, is also the same day the World Health Organization declared the novel coronavirus outbreak a global pandemic.
On appeal now, the 69-year-old Weinstein seeks now to have the third-degree rape charge dismissed as time-barred, plus a new trial on the single count of first degree criminal sexual act.
Criminal defense attorney Barry Kamins with Aidala Bertuna & Kamins filed the 166-page brief brief this morning with the Appellate Division’s First Department. Himself a retired state Supreme Court justice, Kamins says Juror 11 in Weinstein’s criminal trial could not have been impartial because she had penned an autobiographical novel that involved sexual exploitation by “predatory older men.”
“Juror No. 11’s fixation with matters of consent and predatory older men and her lack of candor about it, raises troubling questions about whether she prejudged Mr. Weinstein’s guilt and whether she had a personal agenda to see him convicted,” the brief states. “Allowing Juror No. 11 to participate in the deliberations did not merely obstruct the judicial process, it single-handedly obliterated it.”
Kamins also contests the trial court’s withholding of what he calls exculpatory evidence, and he says the jury should not have been allowed to hear from three women who recounted “prior bad acts” involving Weinstein not represented in the charges.
New York prosecutors called the additional witnesses to testify about prior uncharged sexual assaults under precedent from the 1901 case People v. Molineux.
“Weinstein was stripped of the presumption of innocence when the trial court allowed the jury to hear excessive and disparate Molineux evidence that served no legitimate non-propensity purpose and was designed solely to breed contempt for Weinstein and distract the jury from fairly evaluating the evidence on the charged offenses,” the brief states.
In a suburb of Philadelphia one year earlier, the government used a similar strategy to convict comedian Bill Cosby at his sexual assault retrial.
Cosby attempted to overturn his conviction by challenging such “prior bad acts” testimony from five additional witnesses at his retrial, but lost his appeal. The actor-comedian was 81 when he was sentenced to three to 10 years in prison for a sexual assault that occurred in 2004.
Weinstein’s spokesman Juda Engelmayer called the appeals filing “a damning indictment of his criminal prosecution.”
“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,” Engelmayer said in a statement Monday. “In this climate, the trial court had a special obligation to safeguard Mr. Weinstein’s constitutional guarantee of a fair and impartial jury trial. “
Danny Frost, a spokesman for the Manhattan District Attorney’s Office, declined to comment, saying their response will be filed with the court.
Throughout his trial, Weinstein’s counsel repeatedly called for a mistrial on same the issues enumerated in the appeal.
His defense also made a failed plea before the trial for change of venue saying that the environment created by the trial’s protracted publicity, #MeToo protesters, and even the brief consideration of supermodel Gigi Hadid as a juror had made for a “media and entertainment circus.”
After the verdict, Weinstein’s Chicago-based defense attorney, Damon Cheronis, warned against saddling Weinstein with what would “constitute a de facto life sentence.”
Separate from the New York case, Weinstein is charged in Los Angeles with groping Lauren Young in his hotel suite in Beverly Hills in 2013. He faces up to 28 years in prison on the two counts in the California case.
Young was one of the “Molineux witnesses” called to testify about prior uncharged crimes in the New York trial.
Weinstein’s New York convictions stem from charges that he forcibly performed oral sex on a former “Project Runway” production assistant, Miriam Haley, in his Manhattan apartment in 2006, and separately that he raped an aspiring actress, Jessica Mann, at a Midtown Manhattan hotel in 2013.
Weinstein was immediately remanded following the verdict. He is currently incarcerated at Wende Correctional Facility, a maximum security prison east of Buffalo, New York.