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| Stephen Gillers |
But do the convictions mean anything more? Trial lawyers will tell you that every verdict is unique, a product of the particular jury, the particular judge, the admissible evidence and the skill of the lawyers. Change any part of this mix, and the trial could have ended differently. There is certainly much truth to that.
Yet we often search for a larger meaning in verdicts. In this #MeToo moment, that search is inevitable for the Weinstein verdicts.
The jury had to assess the veracity of three women — Annabella Sciorra, Miriam Haley and Jessica Mann. Although the alleged rapes of Sciorra happened too long ago to charge Weinstein with them, her testimony was necessary for the two predatory sexual assault charges in the indictment. The jury hung on those charges. But it believed Haley and Mann. It convicted Weinstein of a criminal sexual act in the first degree (Haley) and rape in the third degree (Mann).
Weinstein's conviction rested almost entirely on the credibility of Haley and Mann. There was no physical evidence. There were no lab reports. There were no other witnesses to the events. The only corroborating evidence were statements later made to others. And the credibility of each was vigorously challenged. I attended the trial during Mann's cross-examination and walked away wondering whether the jury would believe her beyond a reasonable doubt. Yet it did.
So while recognizing that every trial is in a certain sense unique, it is not premature to say that the Weinstein trial has a larger meaning. It suggests that we have turned a corner. The jurors were given enough information to have a reasonable doubt about the credibility of Haley and Mann. They might in good conscience have chosen to acquit him.
Yet they believed the women. That is the most important meaning of the trial. They believed the women and did so in the absence of the kind of corroborating evidence that not so long ago — and in many American jurisdictions still today — prosecutors would require even to bring a charge.
A puzzle remains. Why did the jury fail to reach a verdict on the predatory sexual assault charges, which required it to accept Sciorra's testimony? Unlike Haley and Mann, Sciorra's credibility emerged largely intact.
Perhaps what explains it is a form of jury nullification, or, if you prefer, mercy. The crimes alleged against Sciorra were nearly 30 years old. Conviction on predatory sexual assault would have sent Weinstein, 67, to prison for life. The other felony convictions already carried sentences of many years. So some jurors — we don't know how many — might have chosen to soften the rigors of the predator law with justice, as they saw it.
Will the conviction survive appeal? Weinstein's strongest appellate argument would seem to be that the trial judge violated the 1901 New York Court of Appeals decision in People v. Molineux. New York, like other states, does not let prosecutors introduce evidence of other crimes to prove propensity to commit the crime on trial. It is not because this evidence is irrelevant. The worry is that the jury may give it too much weight.
As U.S. Supreme Court Justice Benjamin Cardozo explained in 1930 when he was chief judge of the New York Court of Appeals:
The principle back of the exclusion is one, not of logic, but of policy. There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime.
Despite Molineux, the trial court allowed three other women to testify to Weinstein's sexual violence toward them to prove that he engaged in a pattern of conduct like the conduct charged in the current prosecution. One might say that the proof was meant to help the jury resolve any ambiguity in the meaning of the other evidence it heard.
Whether this ruling around Molineux — whether there is indeed any difference between what the court allowed the women's testimony to prove and what Molineux forbids — is certain to be part of any appeal.
I am not saying that the Weinstein conviction certainly means that we have achieved enlightenment and clarity about what is and is not allowed when adults have sex. We've come a long way on that question in the last 50 years, but we still have a long way to go.
The Weinstein case, when we look back at it 50 years from now, may appear as a giant step forward in that journey. Or it may turn out, after all, that the verdict stands for little more than what happened in one New York courtroom across several weeks in early 2020. We'll need more jury verdicts before we can say which it is.
Stephen Gillers is a professor at New York University School of Law, where he teaches evidence and legal ethics.
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