Weinstein's Appeal Is Probably Going to Fail, According to a Defense Attorney

The disgraced Hollywood mogul is trying to get his conviction overturned—but according to a legal expert, his chances are slim.
Drew Schwartz
Brooklyn, US
Harvey Weinstein
Photo by Scott Heins / Getty Images

Harvey Weinstein appealed his conviction of two felony sex crimes on Monday, a legal maneuver he hopes will get him out of a 23-year prison sentence and grant him a new trial. The appeal, filed more than a year after he was found guilty by a jury in New York, claims Weinstein was denied the right to a fair trial by a judge who was biased against him, and a juror who had "prejudged" his case before it even got started, among other complaints.


Though dozens of women have accused Weinstein of sexual assault, his conviction in New York hinged on just two allegations: one from Miriam Haley, a former production assistant who said he forcibly performed oral sex on her in 2006; and another from Jessica Mann, an actress who said he raped her in a hotel room in 2013. Three other women who claim Weinstein sexually assaulted them took the stand as "Molineux witnesses," meaning they were able to testify despite not being named in the charges against him—a legal tactic that helped cinch his conviction. But in Weinstein's appeal, his attorneys say that shouldn't have been allowed to happen. That argument, along with the allegations of bias on the part of the judge and juror, are at the heart of the appeal.

It's hard to say whether there's any real merit to those claims. Douglas Wigdor, an attorney who represents many of Weinstein's accusers, told the AP the appeal was "a desperate attempt to undo a fair trial," one that "will not alter [Weinstein's] conviction and sentence." But Weinstein's attorneys are just as insistent that it should. In an effort to unpack the appeal—and to find out whether it could actually get Weinstein off the hook—VICE spoke with Rob Georges, a former Assistant District Attorney in the Bronx and a criminal defense attorney at Konta, Georges & Buza, where he serves as a founding partner. Georges, who has both prosecuted and defended people accused of sex crimes in New York, walked us through the allegations in the appeal, and weighed in on whether or not Weinstein has a chance of overturning his conviction. Georges had a somewhat surprising take: In his view, Weinstein should get a retrial—not because he thinks the disgraced Hollywood mogul is innocent, but because of a number of issues Georges has with the way Weinstein's trial was handled. 


On a big picture level, what were your thoughts on the appeal filed by Weinstein's legal team?
They're the same thoughts I had while the trial was going on, for the most part. I felt at the time that there were two or three—or more—errors and problems that the judge created that, in any other trial, would result in an appeal that would be successful. I think there's enough case law, and there's enough concern in the appellate courts on these issues, that if we were talking about anything other than Harvey Weinstein, the appeal would have a really good shot at getting [this conviction] overturned. Because it's Harvey Weinstein, I'm not as optimistic. The judges in the appellate division—whether they talk about it or not—are going to feel tremendous pressure to sustain the trial conviction, considering everything that went into it and what it signified. 

So from where you're sitting, would you say that the appeal itself has merit, and that these are legitimate claims?
They're absolutely legitimate claims. It's a very meritorious and important appeal to be brought.

And yet you don't think it will actually get Weinstein's conviction overturned.
Honestly, I'm hopeful that it is overturned. I'm hopeful that it does lead to a retrial. And that's not because I think Harvey Weinstein is not a sexual predator. That's because I think the issues that are presented in the appeal are that important to the system. And I think that we should aspire and work towards a system that really ensures a fair trial, no matter how horrible the person is. And I just don't think that's what happened here.


“I'm hopeful that it does lead to a retrial. And that's not because I think Harvey Weinstein is not a sexual predator.”

I want to break down why it is you feel that way, and to dig into some of the claims Weinstein's defense attorneys raised in their appeal. One is that the judge, James Burke, was biased against Weinstein, and should have recused himself. Does that seem valid to you, or not?
It's absolutely valid to me. There are a lot of examples of that. The most egregious one, right off the bat, was that the Los Angeles District Attorney's Office announced their indictment on the [day before the] first day of jury selection in Manhattan. That is so prejudicial—I can't think of a more prejudicial thing to a jury pool. I mean, you have to think about it practically. You have hundreds of people streaming into the courthouse for jury selection, holding their cell phones in their hands. And what's coming up on their phone? Harvey Weinstein, the guy that they're about to sit on a trial for, has been indicted in Los Angeles for raping multiple women. And the judge refused to stop jury selection and say, "You know what, let's come back in a week, when the people who are coming in are not inundated, on that very day, with this as the lead news story." To me, at that point, the judge is already raising major red flags that he is going to be very biased against this defense team. And so to me—as a taxpayer, as a citizen, as a former prosecutor, as a defense attorney, as someone who cares about criminal law—you've got to do better than that in trying for a fair trial.


What were some other instances that made you feel like the judge might have been biased against Weinstein?
There's a lot. The defense wanted to put on expert testimony from a psychologist, and the judge said no. Usually there is a lot of effort made to allow the defense to put on their case. And so if a defendant has an expert that's going to lend some credibility—and the prosecution put on their expert—why is the judge saying no? What's one more witness? What's the big deal? 

You had the juror who had written a book about "predatory older men" having sex with younger women. [Editor's note: Judge Burke declined to dismiss that juror.] The judge allowing additional Molineux witnesses—all of those things go into judicial bias. Each on their own are issues of judicial error, in my opinion. But when you add them up, that's where you're really talking about judicial bias. 

One major claim in the appeal, which you just mentioned, centers on Juror 11. Weinstein's attorneys claim she was biased against Weinstein, largely because she had written a book involving "predatory older men," and that she had essentially prejudged the case before it actually played out. What do you make of that argument?
There are a lot of appeals in New York courts [that lead to convictions being] overturned because of issues with jurors and the fairness of jurors. And to me, that was an easy one for the judge to say, "You know what, this is too close to home. You're writing a book about predatory older men. That's literally what this case is about." The judge should have excused her.


Another major claim in the appeal has to do with "Molineux witnesses." Several women testified that Weinstein had sexually assaulted them, but they weren't named in the charges against him. The defense is arguing that those women shouldn't have been allowed to take the stand. What's your take on that? 
The purpose of Molineux—let me explain it this way. A guy goes into a bank, and he's charged in a bank robbery. He's got a bandana around his neck when he's arrested. Then he goes to trial. Ordinarily, they don't put in your prior convictions or your prior cases because you want to be judged just on that one [crime]. Now the DA is going to say to the judge, "But judge, he's been convicted of three other burglaries and robberies, and in all of those crimes, he's wearing a bandana that was around his neck. And so this is his M.O." That is going to help explain what happened; it's going to help the jury. The issue that I have in this case is you already had multiple accusers. You already had that pattern of behavior. You already have the absence of mistake—you already have all of the reasons that a Molineux witness is allowed to be called, because you have multiple instances of what he's charged with. So there's no reason to now have additional witnesses come in. Because what are they adding? We already know that it wasn't just Mimi Haley, or just Anabella Sciorra, or Jessica Mann. We know that there was more than one girl. So what's the need? The only need is—from the defense's perspective—it buries the defendant. It makes him look like a serial predator, and it just makes it so [the jurors] don't like him as a person. And if you're really trying to figure out—did he abuse these three women?—it makes it a lot harder. I think that was wrong for the judge to do. [Editor's note: Some attorneys disagree with Georges on this point.]


What happens next with Weinstein's appeal? Where does it go, who's going to be looking at it, and how do they deliberate on it?
The DA's office is going to get to review [the appeal] and file a very lengthy opposition. And then the judges up on Lexington and 26th Street, where the appellate division is—there's a panel of judges there, and they will review it and read it, and they're gonna dig in. And they can just issue a decision in writing. If Harvey Weinstein loses—which I expect he will—then he would be able to take it to the Court of Appeals and try his hand there.

I know we've already touched on this, but why is it that you're so confident that Weinstein will lose this appeal?
I think it would be seen as overturning the progress—and of course, it's tremendous progress—in the #MeToo Movement. The pressure to keep this conviction is monumental. 

How common is it for criminal convictions in New York to get overturned on appeal? Do you know the percentage of those that are?
It's really low. I don't want to guess, but if you told me it was 5 percent,  3 percent, 2 percent, I would believe it. 

Given how seemingly slim Weinstein's chances are of having his conviction overturned, why file an appeal at all? In some ways it just seems like a lost cause.
You've gotta keep hope alive, right? I've never had a defendant who didn't appeal, who didn't try to fight. There's always, in the back of your mind: "Well, if I get this case thrown out, they won't try it again," or "I'll get bail pending appeal." There's a scenario where they could say, "These are serious enough issues that we're going to grant [Weinstein] bail pending our decision." He might just be hoping for two months at home. He's got a lot of money, I guess, to throw at this—and why not? He's got nothing else to do while he's sitting in [prison] but direct people to try and fight this.

Follow Drew Schwartz on Twitter.