Harvey Weinstein’s Rape Conviction Has Been Overturned – And It Could Have Consequences For Ghislaine Maxwell

On Thursday, the New York Court of Appeals handed down a landmark decision throwing out Harvey Weinstein’s 2020 conviction for rape and other sex crimes. Four of seven judges, who made up the majority, found that Weinstein’s New York trial was “egregiously” unfair and quashed his conviction. Prosecutors have said that they plan to re-try Weinstein, but no firm date has yet been set. He will remain in prison, for now, because he is serving a concurrent sentence for a rape conviction in Los Angeles. However, he is lodging an appeal against that conviction based on the same argument that was successful in New York. The argument could also have implications for Ghislaine Maxwell’s shot at freedom, too — so we’ve dug into the details of the legal argument for you.

Why Was The Conviction Overturned?

Weinstein’s conviction was thrown out because he successfully argued that the New York trial judge had improperly allowed too many so-called “prior bad acts” witnesses. This refers to witnesses who allege that they have suffered abuse or been the victim of a crime at the hands of the accused — but they aren’t formally victims in the case. This means that the acts that they say occurred did not, for whatever reason, end up on the final list of charges against the defendant. This could be because prosecutors worry that there wouldn’t be enough evidence, because victims may choose not to have their allegations on the charge list, or because certain evidence or witnesses about those particular acts have been lost to time or otherwise can’t be presented in court.

As a kind of halfway point between including these victims’ allegations in the actual indictment and excluding them from the trial altogether, there is a rule that allows for these “prior bad acts” witnesses. This means they are allowed to give evidence to the jury about what they say the defendant did to them, but the jury is not allowed to convict any defendant based on this evidence because the acts themselves are not formally charged. This leaves these witnesses in a kind of murky grey area — they are allowed to make accusations against the defendant without necessarily needing to meet the “beyond reasonable doubt” standard, but as a trade-off, the jury is also not allowed to convict purely on the basis of their evidence.

In the New York trial, one complainant, Complainant B, was allowed to testify about Weinstein’s uncharged sexual assaults against her before and after the charged rape and her awareness of his abusive and threatening behavior. Three other women were allowed to testify regarding the defendant’s sexual misconduct towards them years before and after the charged offenses involving Complainants A and B.

These kinds of witnesses, prosecutors argue, are particularly important when it comes to sexual offenses when the defendant argues that the interactions did occur but were consensual — which was Weinstein’s defense. In these cases, prior bad acts witnesses are used to try and undermine the suggestion that all of the actual charges on the indictment were consensual. But is it fair?

The Court of Appeals said no, it isn’t. The judges noted that the trial judge made a mistake when allowing the prior bad acts witnesses to give evidence, saying that “under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality.”

Weinstein was “convicted by a jury for various sexual crimes against three named complainants and, on appeal, claims that he was judged, not on the conduct for which he was indicted, but on irrelevant, prejudicial, and untested allegations of prior bad acts,” the majority continued.” 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.”

What the judges are explaining here is that prior bad acts witnesses are only allowed if they are being used to establish something other than the vague notion that the defendant has a “propensity” for crime. Basically, the rule says that prosecutors are not allowed to use prior bad acts witnesses to try and add extra proof to support the acts they did decide to charge. The rule states that “character evidence is generally not admissible in a criminal trial for the purpose of showing ‘propensity’ — that is, for the purpose of showing that the person likely acted in a way that is consistent with that character trait on a particular occasion.”

The judges in Weinstein noted that this was particularly true because Weinstein had no criminal record and had no actual prior convictions to which these witnesses were referring. In this context, the judges said, the prior bad acts witnesses were being used purely to diminish his character in the eyes of the jury and to give the impression that he had this “propensity” for crime—which is not allowed.

The judges said that allowing these witnesses to testify about their own uncharged experiences with Weinstein violated a rule against “a guilty verdict based on supposition rather than proof, on “collateral matters or [ ] because of [a defendant’s] past” or on the defendant’s “bad character” alone.” They say this fundamentally violated his right to a fair trial.

What Is The Significance of This Ruling?

To put it simply, it’s huge. The ruling – coming from New York’s top court – could establish an important precedent when it comes to how defendants in sexual assault trials are treated. As I mentioned, prior bad acts witnesses are often used in sexual assault cases because it is famously hard to get over the high bar of “beyond reasonable doubt” in sexual assault cases. But the court has definitively said that this should no longer be allowed.

The ruling could have immediate consequences for Weinstein himself because he will use this ruling heavily when he appeals his Los Angeles conviction next month. His trial in California, which resulted in a second conviction for rape, also used prior bad acts witnesses. 

Women who made allegations of abuse against Weinstein but whose allegations were not included in the actual indictment were allowed to tell the jury about their experiences with the producer. So, Weinstein’s lawyers have said they will be using the New York ruling to argue that the LA trial was also unfair and that these witnesses should have been excluded. Victims’ attorney, Gloria Allred, has said that the California state law is different and allows testimony from these witnesses if it is used to prove motive, opportunity, intent, preparation, or a plan to commit a crime or whether the defendant could have reasonably believed an alleged victim consented — so she says the prior bad acts witnesses were legitimate in California. But it will ultimately be up to the appeals court to decide whether they were used properly, so we’ll have to watch this space.

How Could This Have Implications For Ghislaine Maxwell?

Anyone who followed Ghislaine’s trial closely (as long time readers here you did) will be very familiar with the concept of witnesses who testify about sexual abuse that is not charged on the indictment. Prosecutors called an accuser who used the pseudonym “Kate” to testify about her allegations of abuse at the hands of Jeffrey Epstein and Ghislaine Maxwell — but Kate was over the age of consent in the UK, where the alleged abuse took place, so these offenses could not technically be charged as trafficking of minors. The judge allowed Kate to testify, but Prosecutors had to leave these acts out of the indictment altogether. In court, we heard the jury being told several times that they were not allowed to convict Maxwell on the evidence of Kate alone because she was not actually part of the indictment. While the federal rules are slightly different, this makes Kate, in essence, a prior bad acts witness. This is particularly important because the prosecution relied on Kate’s evidence quite heavily to prove Ghislaine’s specific involvement in the abuse and her knowledge of what Jeffrey Epstein was doing. 

Kate, for example, testified about a conversation with Ghislaine in which Ghislaine allegedly confessed that she could not keep up with Jeffrey’s sexual appetite, and that’s why she needed girls to massage him. This kind of evidence was intended to refute a key part of Ghislaine’s defense, which was that she did not actually know that Jeffrey was sexually abusing underage girls. So, Kate’s testimony could have been influential in the jury’s decision to reject that defense. 

This means that Ghislaine could use the ruling to try and argue that Kate should not have been allowed to testify and that she was called to give evidence for the improper purpose of suggesting that she had a “propensity” to disregard laws around the sexual abuse of minors. Ghislaine lodged an appeal against her conviction and 20-year prison sentence in March. At the time, her lawyers did not raise this argument, but it’s possible that she could now do so with the backing of the Weinstein ruling. This is made even more likely now that Ghislaine has hired Harvey Weinstein’s lawyer.

Who is Arthur Aidala?

Weinstein’s top lawyer, Arthur Aidala, has been making a big name for himself of late. When Weinstein’s conviction was overturned on Thursday, he told the press that he “knew that Harvey Weinstein did not get a fair trial.” He praised the majority ruling, saying that it determined that “you can’t convict someone based on their entire life.”

“There are some people who are unpopular but we still have to apply the law fairly to. The law was not applied fairly to Harvey Weinstein,” he said.  

Aidala, who is famously well-dressed (highlighted here), well-spoken, charismatic, and an advocate against cancel culture, also hinted to reporters that he thinks the ruling could be used in the LA trial. 

Interestingly, he is also a relatively new addition to Ghislaine Maxwell’s legal team. He is the one who helped her lodge her appeal against her conviction in March, which focused heavily on the scandal surrounding juror Scotty David, who told the media that he had been a victim of childhood sexual abuse but, it was discovered later, he had not properly checked the box when asked to identify himself as a crime victim.

“There are certain things that could happen in one’s life that makes you unable to be fair and impartial,” Aidala said about the juror. “That was the case in Ghislaine Maxwell’s jury box. And [Scotty] admits he played a heavy role there.” He added that “on that grounds, the case would cause the case to be reversed to go back to a new trial.”

So, Aidala’s appeal is already focused on the critical question of what constitutes a fair trial. It seems plausible that he could try and use the ruling he won in New York to also argue that, in addition to the juror issue, Maxwell’s right to a fair trial was undermined by the use of witnesses who testified about uncharged offences. We are currently waiting for a ruling on her appeal – which will be determined by the same court that tossed out Weinstein’s conviction — so we’ll have to watch this space to see if Aidala chooses to try and bolster the appeal by attacking the judge’s decision to call Kate.

Whatever the case, we’ll keep you posted!

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— Read My Exclusive With Jessica Mann — The Woman Behind The Now Overturned Conviction, HERE

“What I say next is crucial to understand — Up until the explosive headlines, every single one of us was living under what I call a worldview. The worldview was there was no one bigger than Harvey. And this is one of the most important things I have to say: To hold someone accountable you have to have a system where there is something big enough to hold that person accountable. Without it, there’s no ability to do so. If you attempt to hold that person accountable on your own – you pay with your life in some form or another. That abuser is the ultimate ‘accountability’ without cross and checks. The same goes for our government — which is why our founding fathers created multiple forms of accountability — and we still need to ensure we protect that — especially in this climate that is becoming anything but a democracy.”