By Tom Hals and Brendan Pierson
(Reuters) – Harvey Weinstein will seek to overturn his sex crimes conviction by arguing that the jury was prejudiced by testimony from women unconnected to prosecutors’ underlying case, his lawyers have said. But, according to experts, he faces a legal hurdle: his acquittal on some of the most serious charges.
Weinstein, 67, faces up to 29 years in prison for sexually assaulting former production assistant Mimi Haleyi in 2006 and raping Jessica Mann, a former aspiring actress, in 2013.
The former Hollywood producer’s sentencing is scheduled for March 11. After that, he can begin the appeals process, which could run into next year.
Weinstein is “cautiously optimistic” he will be exonerated once the New York state appeals court examines the decision to allow these “prior bad act” witnesses, one of his lawyers, Arthur Aidala, said on Tuesday.
Such witnesses, known in New York state as “Molineaux witnesses” for an 1898 murder, can be used to testify about an uncharged crime committed by the defendant to describe a motive or pattern of behavior.
Molineux witnesses may have played a critical role in Weinstein’s conviction by shoring up a difficult case with testimony from three women alleging attacks by Weinstein, even though the incidents did not result in a criminal charge.
But some experts said Weinstein’s argument that the jury was prejudiced by the Molineux evidence will face a major hurdle: his acquittal of first-degree rape and the most serious charge, predatory sexual assault.
“When you have an acquittal in criminal cases, it always makes the appeal more difficult,” said Michael Bachner, a defense attorney. “It shows the jury evaluated the evidence carefully. It shows they could be fair.”
A lawyer for Weinstein could not be reached for comment on Wednesday.
Prior bad-act witnesses were used to convict comedian Bill Cosby in 2018 of drugging and sexually assaulting Andrea Constand. Pennsylvania prosecutors called five women to testify about similar attacks.
In Weinstein’s case, actress Lauren Young, model Tarale Wulff and costume designer Dawn Dunning testified about what prosecutors claimed was the producer’s signature pattern of behavior: luring women to hotel rooms or his apartment to discuss film roles, then attacking them.
Bennett Gershman, a professor at Pace Law School in New York, said the Molineux testimony in Weinstein’s trial seemed to have been used simply to strengthen the prosecution’s case, rather than for the limited purpose of proving an element of a crime that the prosecution could not otherwise prove.
He called that a “radical extension of Molineux in New York.”
Evidence of uncharged crimes cannot be used to show a defendant is predisposed or has the propensity to commit a crime. Courts make exceptions, including using such evidence to show a defendant’s intent or a signature pattern.
Gershman said David Allweiss’s conviction for the 1973 murder of Carol Hoffman in Manhattan was a classic use of Molineux witnesses for a limited purpose — identifying the killer.
Six women testified that Allweiss told them the same peculiar story that his wife had been raped before he sexually assaulted each victim.
Moments before Hoffman’s murder, she called her boyfriend to tell him a strange man had entered her apartment, saying he was looking for his wife’s rapist.
Defendants have had success overturning convictions based on improper use of Molineux evidence.
In 2017, the New York Court of Appeals ordered a new trial for Richard Leonard, who was convicted of first-degree sexual abuse for a 2007 incident involving a minor female who was intoxicated and unconscious.
To help secure a conviction, prosecutors introduced evidence that Leonard had raped the same person in 2005.
The Appeals Court said the evidence of the 2005 incident, which was not charged as a crime, tended “to show that defendant committed the charged crime because he had done it before.” The court called that “classic propensity evidence” – and an impermissible use of Molineux testimony.
“The question on appeal (for Weinstein) will be, does this evidence sound more in propensity, which is impermissible, or more in intent, which is permissible,” said former federal prosecutor and current defense lawyer Paul Shechtman.
Legal experts said Weinstein will almost certainly challenge the number of Molineux witnesses as well.
Weinstein defense lawyer Aidala has said it is extraordinary to have three Molineux witnesses testify when there are only two complaining witnesses. It is often difficult for prosecutors to persuade a judge to allow one Molineux witness.
The number of such witnesses is part of an appeal by Cosby now pending before the Pennsylvania Supreme Court.
In Cosby’s first trial, there was one prior bad-act witness, and the jury could not reach a unanimous verdict. When the state retried him using five prior bad-act witnesses, he was convicted.