Harvey Weinstein rape case may turn on history of prior 'bad acts'

[February 18, 2020]  By Brendan Pierson and Tom Hals

(Reuters) - A Manhattan jury's verdict in the sexual assault trial of former Hollywood producer Harvey Weinstein may well hang on the testimony of three women whose accusations were not part of the underlying criminal case.

Deliberations were expected to begin on Tuesday in the case of Weinstein, 67, who pleaded not guilty to sexually assaulting former production assistant Mimi Haleyi and raping Jessica Mann, a onetime aspiring actress.

During the six-week trial, the three other women - costume designer Dawn Dunning, model Tarale Wulff and actress Lauren Young - testified they were enticed into meeting Weinstein for professional reasons and then groped or raped.

They testified about encounters separate from the crimes Weinstein was accused of committing.

Prosecutors called the women as witnesses to try to establish Weinstein's motive and a signature pattern of behavior that legal experts described as potentially powerful evidence that might bolster the claims of Haleyi and Mann.

“The volume and number of witnesses like that make it really difficult for the defense to prevail,” said Daniel Hochheiser, a New York criminal defense lawyer and former Bronx prosecutor.

New York law customarily prevents prosecutors from presenting testimony of "prior bad acts," as it is generally considered prejudicial to a defendant.

"You can't admit bad acts to show that this is the kind of person who does this a lot, and so probably did it on this occasion," said Deborah Tuerkheimer, a former Manhattan prosecutor who is now a professor at Northwestern Law.

'SIGNATURE' PATTERN

An exception to the law allowed prosecutors to call Dunning, Wulff and Young to show Weinstein "had a particular intention" or exhibited a "signature" pattern of behavior when he invited women to meet and discuss professional opportunities.

Under New York state law, such witnesses are known as "Molineux" witnesses.

A lawyer for Weinstein, Arthur Aidala, said it was "extraordinary to have three Molineux witnesses testify when there are only two complaining witnesses."

"It is often difficult for prosecutors to convince a judge to allow one Molineux witness," he said in an email.

Dunning testified that the producer groped her in 2004 and offered her movie roles in exchange for three-way sex with him and his assistant, which she refused.

Film producer Harvey Weinstein and lawyer Donna Rotunno depart New York Criminal Court during his ongoing sexual assault trial in the Manhattan borough of New York City, New York, U.S., February 14, 2020. REUTERS/Carlo Allegri

Young, a model and actress, testified that the film producer trapped her in a hotel bathroom in 2013, masturbated in front of her while groping her breasts, and told her: “This is what all the actresses do to make it.”

On cross-examination, the defense challenged the women's credibility. In Dunning's case, Weinstein's lawyers pressed her about her decision to meet with Weinstein weeks after the alleged assault and the fact that she did not tell anyone about the encounter until years later.

But the sexual assault trial of comedian Bill Cosby suggests that the impact of prior bad acts testimony can be tough for the defense to overcome.

Pennsylvania prosecutors charged Cosby in December 2016 with a 2004 assault of Andrea Constand, a former Temple University administrator.

About 50 women accused Cosby, now 82, of sexual assaults going back decades. Cosby denied the accusations, insisting all the encounters were consensual.

A first trial, with evidence from one "prior bad acts" witness, ended with a deadlocked jury. A second trial included testimony from five other women who accused Cosby of drugging and sexual assault, even though some events occurred decades earlier and had no connection to Constand.

A jury convicted Cosby in 2018, and he was sentenced to up to 10 years in prison. In January, Cosby asked Pennsylvania's highest court to overturn the conviction.

Cosby's lawyers said in court papers that in the #MeToo era, "one cannot imagine more prejudicial testimony" than a parade of women testifying about sexual misconduct, which his lawyers said had no connection to the crime.

"This also left him in the position of having six trials in one," they said.

(Reporting by Tom Hals in Wilmington, Delaware, and Brendan Pierson in New York; Editing by Noeleen Walder and Howard Goller)

[© 2020 Thomson Reuters. All rights reserved.]

Copyright 2020 Reuters. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.  Thompson Reuters is solely responsible for this content.