New York’s top court torn on tossing Harvey Weinstein’s rape conviction

FILE – Harvey Weinstein arrives at a Manhattan courthouse for jury deliberations in his rape trial, Feb. 24, 2020, in New York. (AP Photo/Seth Wenig, File)

NEW YORK  — Nearly four years after Harvey Weinstein was convicted of rape and sent to prison, New York’s highest court appeared torn at oral arguments Wednesday about potentially overturning the landmark #MeToo-era verdict.

Weinstein’s lawyers urged the state’s Court of Appeals to dismiss the disgraced movie mogul’s 2020 conviction, arguing that the trial judge, James Burke, trampled his right to a fair trial with pro-prosecution rulings that turned the trial into “1-800-GET-HARVEY.”

“It was his character that was on trial. It wasn’t the evidence that was on trial,” Weinstein’s lawyer Arthur Aidala told the seven-member court in Albany.

Weinstein, 71, was convicted of a criminal sex act for forcibly performing oral sex on a TV and film production assistant in 2006 and rape in the third degree for an attack on an aspiring actress in 2013. He was sentenced to 23 years in prison. Last year, he was convicted in Los Angeles of another rape and sentenced to an additional 16 years in prison.

A lawyer for the Manhattan district attorney’s office, which prosecuted Weinstein’s New York case, told the appeals court that Burke’s rulings were proper and the conviction should stand.

Weinstein’s lawyers want a new trial, but only for the criminal sexual act charge. They argue the rape charge can’t be retried because it involves alleged conduct outside the statute of limitations. Reversing the verdict would reopen a painful chapter in America’s reckoning with sexual misconduct by powerful figures. The court is unlikely to rule immediately.

If the Court of Appeals were to rule in Weinstein’s favor, he would remain locked up because of his California conviction. Weinstein did not attend the arguments but was said to be monitoring a livestream from the state prison where he is incarcerated, Mohawk Correctional Facility, about 100 miles (160 kilometers) northwest of Albany.

Allegations against Weinstein, the once powerful and feared studio boss behind such Oscar winners as “Pulp Fiction” and “Shakespeare in Love,” ushered in the #MeToo movement. His New York trial drew intense publicity, with protesters chanting “rapist” outside the courthouse.

Weinstein maintains his innocence. He contends any sexual activity was consensual.

His voice booming at times, Aidala argued that Burke swayed the trial with two key decisions: allowing three women to testify about allegations that weren’t part of the case, and granting prosecutors permission to confront him, if he had testified, about his long history of brutish behavior. Aidala also took issue with Burke’s refusal to remove a juror who had written a novel involving predatory older men.

Weinstein wanted to testify at his trial, but opted against it because of Burke’s ruling that would’ve meant answering questions about more than two-dozen alleged acts of misbehavior dating back four decades, including fights with his movie producer brother and an incident in which he flipped over a table in anger, Aidala said.

“We had a defendant who was begging to tell his side of the story. It’s a he said, she said case, and he’s saying ‘that’s not how it happened. Let me tell you how I did it,'” Aidala argued, adding that evidence of Weinstein’s prior bad behavior, “had nothing to do with truth and veracity. It was all ‘he’s a bad guy.'”

Aidala also argued that other defendants in the state were now at risk of having their cases overwhelmed by extraneous evidence because “the floodgates have been opened” by the precedent of Burke’s rulings.

The judges hearing Wednesday’s arguments volleyed between skepticism and sympathy for Aidala and his counterpart from the district attorney’s office, appellate chief, Steven Wu.

Judge Madeline Singas suggested that the circumstances of Weinstein’s case — using his power in Hollywood to have sex with women seeking his help — may have warranted Burke’s decision to allow the other accusers to testify.

But Judge Jenny Rivera wondered if the behavior the women described cleared the high legal bar for allowing additional accusers to take the stand, namely that their testimony is evidence of same motive, opportunity, intent or a common scheme or plan.

“What’s unique about a powerful man trying to get a woman to have sex with them?” Rivera asked.

Betsy Barros, a lower court judge filling in on the Court of Appeals because of recusals, appeared alarmed by Burke’s ruling allowing prosecutors to confront Weinstein about unrelated misbehavior.

“I don’t think anybody in their right mind would testify” under those circumstances, Barros observed. “So how is this a fair trial when you’re not able to put in your side of it?”

Aidala said allowing the additional accusers to testify turned Weinstein’s trial “into three other mini-trials,” burdening jurors with deciding not only Weinstein’s guilt or innocence on the charges at hand but whether he committed other alleged offenses that weren’t part of the case. Weinstein was acquitted in Los Angeles on charges involving one of the women who testified in New York, Aidala said.

Wu countered that Weinstein’s acquittal on the most serious charges in the Manhattan trial — two counts of predatory sexual assault and a first-degree rape charge stemming from actor Annabella Sciorra’s allegations of a mid-1990s rape — showed that jurors were paying attention.

The Associated Press does not generally identify people alleging sexual assault unless they consent to be named; Sciorra has spoken publicly about her allegations.

The Court of Appeals agreed last year to take Weinstein’s case after an intermediate appeals court upheld his conviction. Prior to their ruling, judges on the lower appellate court had raised doubts about Burke’s conduct during oral arguments. One observed that that Burke had let prosecutors pile on with “incredibly prejudicial testimony” from additional witnesses.

Burke’s term expired at the end of 2022. He was not reappointed and is no longer a judge.