It was Valentine’s Day earlier this year when, in an Albany courtroom, the seven judges that make up the New York State Court of Appeals spent part of their day hearing oral arguments about potentially overturning the nearly four-year-old landmark trial in which Hollywood producer Harvey Weinstein was found guilty of two of five felony counts of rape, resulting in a prison sentence of 23 years. On Thursday, more than two months later, the court announced it has reversed the mogul’s conviction in what is a shocking move to many and a pivotal moment in the #MeToo era.
Others who were closely watching the case and the proceedings on that February day in Albany may feel less shocked by the reversal. That Wednesday, the court’s seven judges — four women and three men — held both defense and the prosecution attorneys to account for their arguments, which centered around the 2020 trial judge’s out-of-the-ordinary decisions that defense attorney Arthur Aidala argued — often with booming outrage — crushed any chance of a fair trial for Weinstein.
The 71-year-old convicted sex criminal and former Hollywood power player was found guilty at his 2020 New York trial of 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. Since he was serving out his 23 years at a Rome, N.Y. prison, he reportedly watched the Feb. 14 proceedings from a closed-circuit TV.
Questioned that day were two key moves that Judge James Burke made in 2020: His decision to allow three women whose accusations against Weinstein were not in the purview of the case to testify as so-called Molineux witnesses (trial witnesses allowed to testify about criminal acts that the defendant has not been charged with committing) to establish the Hollywood power broker had a predatory pattern. Burke also said he would allow the prosecution to confront the defendant on the stand about past behavior that was also not related to the cases of the two women accusing him of sexual assault. Weinstein, who maintains his innocence, opted not to defend his actions as consensual encounters to avoid being questioned about two dozen-plus alleged acts of misbehavior, which Aidala said went back four decades.
Joshua Ritter, a criminal defense attorney and former prosecutor for the Los Angeles District Attorney’s Office, says Burke “really dropped the ball.” He explains, “It’s up to the judge to be the gatekeeper of this evidence, and the appellate court didn’t mince words when it said he abused his discretion in ways that led to errors that weren’t harmless.”
At the Feb. 14 hearing, the N.Y. appellate justices — Chief Judge Rowan D. Wilson, Jenny Rivera, Michael J. Garcia, Madeline Singas, Anthony Cannataro, Shirley Troutman and Caitlin Halligan — also grilled Steven Wu, the Manhattan District Attorney Chief of Appeals who argued that the use of Molineux witnesses was justified.
While hearing the two sides argue their cases, Judge Singas seemed to agree with prosecutors when she said Weinstein’s Hollywood status and how he used it can justify Burke’s decision. But the Molineux witnesses became a sticking point, and Wu was questioned heavily by two other female judges on the matter, with Judge Rivera questioning the notion that these three women would be able to show jurors the “unique situation” in which a woman would be willing to have sex with Weinstein to broker an opportunity for herself.
Harvey Weinstein at court on Feb. 20, 2020 in New York City.
Kena Betancur/Getty Images
“I don’t know what’s unique about that — what is unique about a powerful man expecting[ing] sex in return for favors?” Judge Rivera argued back at the prosecutor. “Please connect…any of those Molineux witnesses to show me how that connects to what you say is something that a juror could not understand.”
Rivera, an 11-year Appeals Court veteran who once clerked for Supreme Court Justice Sonia Sotomayor, also questioned whether or not the Molineux witnesses cleared the bar of presenting evidence of the same motive, opportunity, intent or a common scheme or plan.
Ultimately, Rivera came down on the side of the 4-3 decision that led to the reversal of Weinstein’s fate — in New York, at least; in California, a jury convicted him of rape in 2022.
Rivera was joined by two of her three other female colleagues: Troutman and Halligan. Troutman served Erie County and the city of Buffalo for decades and was nominated by Gov. Kathy Hochul to the Court of Appeals in 2021. Hochul also nominated Halligan, who was confirmed just last week on April 19; she briefly clerked for Supreme Court Justice Stephen Breyer, served in the New York Attorney General’s Office and worked in private practices before joining the Court of Appeals.
Wilson was the fourth vote to reverse the court’s Weinstein ruling. (Hochul’s nomination of Wilson to the chief judge position was approved by the New York Senate on April 18.) Rivera authored the opinion, however, arguing that the original trial was unfair to Weinstein.
“We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose,” she wrote. “The court compounded that error when it ruled that defendant, who had no criminal history, could be cross-examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light.
“No person accused of illegality may be judged on proof of uncharged crimes that serve only to establish the accused’s propensity for criminal behavior,” the opinion added.
Ultimately, Ritter says New York’s highest court made the right call to overturn the conviction.
“One of the things we try to avoid more than anything in criminal trials is putting the character of the defendant on trial,” he says. “You’re navigating treacherous waters when you allow uncharged victims. There are exceptions allowing for this kind of testimony, but the court felt that, in this case, it went too far.”
The dissenting opinion, from Judge Singas, insisted that this decision is naive, hinders New York juries, dismisses nuance and hurts women: “Fundamental misunderstandings of sexual violence perpetrated by men known to, and with significant power over, the women they victimize are on full display in the majority’s opinion,” Singas wrote.
“Critically missing from the majority’s analysis is any awareness that sexual assault cases are not monolithic and that the issue of consent has historically been a complicated one, subject to vigorous debate, study, and ever-evolving legal standards. By ignoring the legal and practical realities of proving a lack of consent, the majority has crafted a naïve narrative: that within the most fraught and intimate settings, intent is readily apparent, and issues of consent easily ascertained. This conclusion deprives juries of the context necessary to do their work, forecloses the prosecution from using an essential tool to prove intent, ignores the nuances of how sexual violence is perpetrated and perceived, and demonstrates the majority’s utter lack of understanding of the dynamics of sexual assault.
“Because New York’s women deserve better, I dissent.”
David Ring, a lawyer for one of the accusers in the L.A. trial, says the reversal “easily could’ve gone the other way.” He adds, “You had one justice who was the swing vote. It could’ve been upheld.”
In a press conference held Thursday afternoon, Aidala said Weinstein will be brought from the prison he is currently at in upstate New York back to a facility near the courthouse in Manhattan for a new trial with a new judge and a new prosecutor. Aidala said Weinstein would take the stand in the trial. He noted that it is also under the District Attorney’s discretion whether or not the case will go to trial or be dismissed.
Winston Cho contributed to this report.