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In Harvey Weinstein trial — a #MeToo milestone — accusers’ credibility will be key

Harvey Weinstein Court Hearing, New York, USA - 11 Oct 2018
Former movie mogul Harvey Weinstein sits in a Manhattan courtroom in 2018, where he will stand trial on multiple counts of sexual assault.
(STEVEN HIRSCH/EPA)

The accusations have come from more than 80 women across the U.S., Italy, France, England and Ireland, sparking criminal investigations in at least four cities.

Many of their stories share similar elements, spelling out something of a cadence to Harvey Weinstein’s alleged sexual abuse: A woman with a chance to network with Hollywood royalty. An invitation to a hotel room or apartment. An experience that would stay with them like a stain.

But while the litany of accusations against Weinstein since 2017 have all endured some level of scrutiny, legal experts say the former mogul’s fate will likely come down to how well six accusers handle direct questioning in a Manhattan courtroom in the coming weeks, and whether a jury finds their version of events more credible than the defense offered by their alleged rapist.

Until now, Weinstein’s accusers have been able to make their cases in private to detectives, through media reports or during news conferences where they were flanked by their attorneys and supporters.

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That dynamic will change dramatically when the alleged victims have to face off with Weinstein and a defense team that has promised to launch aggressive cross-examinations.

“They’re not going to be sitting there with a sympathetic reporter. It’s going to be people who feel that it’s their job to undermine anything and everything they say,” said attorney Gloria Allred, who is representing two of the women expected to testify against Weinstein in New York. “They’re going to do everything they can to challenge their credibility … it’s not going to be a pleasant experience.”

A jury of seven men and five women is expected to hear opening arguments in the case Wednesday.

The former mogul is charged with first-degree rape, two counts of predatory sexual assault, one count of first-degree sexual assault and one count of third-degree rape. The charges stem from the alleged 2006 rape of Mimi Haleyi, a former employee of Weinstein’s production company, and an alleged 2013 assault against an unidentified woman.

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Actress Anabella Sciorra is expected to testify that Weinstein assaulted her in the early 1990s in New York, which would support the predatory sexual assault charges. Those require prosecutors to prove that the mogul committed a serious or violent sexual assault against more than one victim.

Three additional women will be allowed to testify to the pattern of Weinstein’s alleged predatory behavior, including one of the women whose allegations are at the center of criminal charges filed against him in Los Angeles County earlier this month.

The Times does not ordinarily publish the names of alleged victims of sexual assault, unless they identify themselves publicly.

Despite cycling through three different sets of attorneys since his May 2018 arrest, Weinstein’s defense strategy has remained consistent, denying wrongdoing in every instance.

Defense attorneys have also pointed to emails showing that some of the accusers in New York stayed in contact with Weinstein after the dates of the alleged rapes, painting each accuser as either opportunistic or simply caught up in the groundswell of the broader #MeToo movement.

The accusers will face a tough test when they take the stand in New York and are questioned by Donna Rotunno, the Chicago lawyer who now leads Weinstein’s defense team and has earned a reputation for successfully defending men from sexual abuse and harassment claims. Rotunno has noted she can often be more aggressive with accusers on the stand because of her gender.

“He may be an excellent lawyer, but if he goes at that woman with the same venom that I do, he looks like a bully,” she told Chicago magazine in 2018, describing how a man would be perceived using her approach. “If I do it, nobody even bats an eyelash. And it’s been very effective.”

Rotunno has defended that aggressive style in interviews leading up to the trial while targeting the idea that the public should automatically believe women who speak out against powerful men accused of sexual abuse.

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“Cross-examination has been called a truth telling tool. What’s happening with these movements is we are now saying that any questioning of any women in any way … that in doing that you are then victim shaming,” she said. “That is a dangerous, dangerous, dangerous proposition.”

Others, however, believe Rotunno risks losing the jury if she is overly pugnacious in her attacks on Weinstein’s accusers.

Women’s rights groups and criminologists have noted in the past that a victim’s decision to maintain contact with their attacker does not invalidate a rape claim, and some say that is especially the case with Weinstein, whose industry status gave him vast power and influence over the careers of those he is accused of assaulting.

“I don’t believe it’s appropriate to go after a victim on the stand with venom, whether that’s a male lawyer or a female lawyer,” Allred said. “If that’s her strategy, that she believes she can get away with it for a woman … a New York jury may not agree with that.”

Issues of witness credibility have already aided Weinstein, however. Prosecutors dropped one of the six charges against him last year after discovering emails that showed former model and actress Lucia Evans, who accused Weinstein of assaulting her in 2004, wrote a draft email to her husband that offered an account of the attack that somewhat differed from what she told prosecutors.

A witness who claimed to have been with Evans the day she first met Weinstein also said Evans told her the encounter with Weinstein was consensual, according to a letter prosecutors turned over to the defense in late 2018. Evans has maintained that her accusation was credible and chastised prosecutors for dropping the case.

Still, the sheer number of allegations against Weinstein across the U.S. and in Europe will leave the defense fighting an uphill battle against public perception, experts said. As jury selection began in New York earlier this month, 40 prospective jurors said they could not be impartial, with one woman telling New York Supreme Court Justice James Burke she would find Weinstein guilty without even hearing any evidence.

Dmitry Shakhnevich, a criminal defense attorney who now teaches at the John Jay School of Criminal Justice in Manhattan, said public perception against Weinstein was further poisoned when Los Angeles prosecutors filed four counts of sexual assault and battery against him earlier this month.

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The torrent of allegations against Weinstein, coupled with the prosecution’s ability to call accusers describing a pattern of abusive behavior, could prove key in overcoming a lack of forensic evidence, Shakhnevich said. He noted that a similar combination led to Bill Cosby’s conviction in 2018, despite a comparable gap in time between the alleged crimes and the trial.

“I think the vitriol that’s going to permeate this jury pool is going to be tough to overcome,” he said. “This isn’t a typical rape case ... you’re going to have to build the case primarily on volume.”

The Los Angeles charges might also boost the credibility of one of the “prior bad acts” witnesses in New York, the Italian model who accused Weinstein of raping her at a Beverly Hills hotel in 2013. Jurors might be more likely to believe her accusation since prosecutors in Southern California thought it was strong enough to warrant a criminal charge, Shakhnevich said.

It is unlikely Weinstein will take the stand to counter the allegations, though Rotunno would not discuss whether or not she would actually put her client on the stand. She also scoffed at the idea that her aggressive style toward his accusers would prove toxic to a jury.

I’m not concerned about that. I feel like I know how to select juries and I feel like I can select jurors who will be fair,” she said. “I think my style and skills in many ways have been represented as being tough and strong, and although that is true, I’m also very fair and tempered.”


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