Can Harvey Weinstein Get a Fair Trial?

Posted at 2:30 PM, February 6, 2020 and last updated 3:53 PM, May 17, 2023


It was billed as the trial to define the #MeToo movement – and New York v. Harvey Weinstein has been all that… and more.

As the Weinstein defense team launches its case-in-chief, my legal eyes see that his already uphill battle has grown significantly steeper. For what may benefit him is not being fully disclosed to the jury and what harms him is being improperly amplified.

COURT TV- A sketch artist depicts defense attorney Donna Rotunno cross-examining a witness for the prosecution, Jessica Mann. (Feb. 4, 2020)

The criminal indictment accuses Weinstein with sexual assaults against two women – Miriam Haley and Jessica Mann – with the top charge of predatory sexual assault being supported by a third accuser, actress Annabella Sciorra.

Additional witnesses are also being allowed to testify as prior bad act witnesses – these witnesses allege sexual misconduct by Weinstein, but he is not criminally charged with these allegations. This strategy was effectively used in the conviction of Bill Cosby.

Practically speaking, Weinstein faces six accusers in the prosecution’s case and some of those accusers have and will be allowed to have “outcry” witnesses to support their claims. An outcry witness is an individual who first hears the allegation of a sexual crime from the alleged victim.

The law has long recognized that victims of sexual assault often, and rightfully so, delay in reporting to authorities. That delay, the law also sees, must be explained to a jury to corroborate a victim’s veracity and it often is through these outcry witnesses.

The rules of outcry testimony in New York are limited in that the alleged victim’s accusation must be made at the first “suitable” opportunity and it is only that an accusation was made that is admissible – not the details of the accusation.


However, Sciorra’s claim that she was raped by Weinstein in the winter months between 1993-1994 has no admissible outcry witness. There was an intimation that actress Rosie Perez was her outcry witness from the time they were interviewed by Ronan Farrow in 2017. Although Perez was on the witness list, she was not going to testify as an outcry witness because Sciorra did not tell anyone about the alleged rape after it occurred. She only told Perez a year later that “something bad happened” and “I think I was raped.” Ultimately, Perez pieced together that Weinstein was the alleged perpetrator.

Sciorra didn’t tell Perez about the alleged rape. Perez is no outcry. Perez is out. Period.

No, not period. Because the prosecution found a way to back door her testimony into this trial and Honorable James M. Burke, the presiding judge, was only too willing to give her entry.

I don’t begrudge the prosecution for trying to get Perez in – any litigator worth their weight in law books pushes the envelope every second, never conceding an inch. It’s the judge’s responsibility – it’s the judge’s duty – to be the gatekeeper.

According to Assistant District Attorney (ADA) Joan Illuzzi, Perez should be allowed to testify to combat the cross-examination by lead counsel for Weinstein, Donna Rotunno who implied that Sciorra was fabricating the rape “for the purpose of getting money.”

The defense agrees that the sex between Sciorra and Weinstein occurred, but it was consensual in nature. Further, Arthur Aidala, another member of Weinstein’s defense team, says the inferences made on cross-examination were not of recent fabrication – if they were, the rules of evidence would allow a prior consistent statement to be admitted.

NEW YORK, NEW YORK – JUNE 10: Rosie Perez attends “The Dead Don’t Die” New York Premiere at Museum of Modern Art on June 10, 2019 in New York City. (Photo by Michael Loccisano/WireImage)

Judge Burke lets Perez testify, although not letting her discuss Weinstein’s alleged stalking of Sciorra (the least of Weinstein’s concerns), but he allows in basically every other facet that led to Perez’ deduction that Weinstein raped her friend Sciorra.

Another celebrity actress and beloved New Yorker got to testify, through tears nonetheless, to a potentially starstruck audience thereby bolstering the prosecution’s case.

After something works once, wouldn’t you try it again? They did and it did.

After Mimi Haley testified, ADA Meghan Hast argued that Haley’s outcry witness, Liz Entin, should be allowed to say more and cited the same theory that allowed Perez’s testimony to come in. The legal theory is when a witness’s testimony is being challenged – directly or by inference – as a recent fabrication, the outcry witness may be rehabilitated with a prior consistent statement made at a time before the motive to fabricate.

The defense argued that Haley always had a motive to fabricate – it wasn’t recent, and again, the relationship was consensual. The judge ignored the defense’s argument and frankly, the rules of prompt outcry – thereby permitting Entin to tell the jury the details of Haley’s account or complaint.

The judge also repeatedly allowed pictures of Entin’s puppy, Peanut, to be shown to the jury. Really, Judge?

The early indications that the trial was going off the rails into tangential mini-trials was cemented when the prior bad act witnesses, Dawn Dunning and Tarale Wulff, had corroborating witnesses testify. But prosecutors failed to predict the defense would dismantle those witnesses. In a stunning moment, defense attorney Damon Cheronis exposed that Wulff’s corroborating witness, Mauricio Ferrigno, may have been coached by the prosecutor.

One thing I could not have predicted, as someone who practiced in that courthouse for over 15 years and is acquainted with the prosecutors, is they would cut corners or play games or not turn over every single speck of evidence related to Weinstein’s legal team. Especially with a trial of this media magnitude.

Last week, after the cross-examination of Wulff, it was revealed that prosecutors did not turn over to the defense the name of a witness/friend who both aided in Wulff’s recollection of her timeline and who was present during an undisclosed third meeting between Wulff and Weinstein. Wulff claims she only met with Weinstein twice.

This is, without exaggeration, jaw-dropping. It is a blatant discovery violation. The prosecution is mandated to turn over evidence favorable, or potentially favorable, to the defendant. This is not within their discretion – they must turn the information over.

Witness Tarale Wulff, center, leaves the Harvey Weinstein rape trial during the lunch break, in New York, Wednesday, Jan. 29, 2020. (AP Photo/Richard Drew)

The prosecution disagrees there was a discovery violation and further insists Wulff’s friend “never returned calls.” Still, her name and contact information should have been turned over to the defense – especially when the friend texted ADA Hast TWO DAYS before Wulff testified.

The defense requested a mistrial or in the alternative have Wulff’s testimony be stricken from the record with a curative jury instruction stating the “State failed to turn over relevant material.”

Not surprising the defense is getting neither. However, Wulff is being made available to testify again this week and her friend is being called to the stand on Thursday.

There wasn’t even an on-the-record slap on the wrist to prosecutors by Judge Burke.

As more accusers testified this week, the parade of corroborators and thus more mini-trials is, to many legal practitioners, highly objectionable because of the extreme prejudice to the defendant.

Remember the defendant? The guy facing life in prison. The only one in the room who is at risk of losing his liberty and freedom.

Harvey Weinstein, left, departs a Manhattan courthouse for his rape trial, Wednesday, Feb. 5, 2020, in New York. (AP Photo/John Minchillo)

Weinstein’s team couldn’t be more on top of the objections, the investigations and the flurry of motions. But is it all for naught if their arguments are falling on deaf ears? If the prosecution continues to be allowed to decide what is relevant and what gets turned over – then no matter how dreamy the team is – Weinstein will not get a fair trial.

So, as we enter the home stretch of the Weinstein trial we know this much, even with the best attorneys money can buy, money doesn’t always buy you justice.


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