Preet Bharara:

From CAFE and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Preet Bharara. On April 25th, New York’s highest court, the court of appeals overturned the 2020 rape conviction of disgraced Hollywood producer, Harvey Weinstein. In the four-three decision, the court ruled that Weinstein had not received a fair trial because of certain witness testimony that was admitted. The witnesses had testified that Weinstein had also assaulted them even though those incidents were not included in the criminal charges at issue in the trial. Such testimony or evidence known as prior bad acts evidence is controversial and its use at trial is strictly policed. The Weinstein decision came as a shock to many. My guest today is Jane Manning. She’s a former sex crimes prosecutor and the director of Women’s Equal Justice, an organization that helps survivors of sexual assault navigate the criminal justice system. Throughout her career, she’s seen firsthand how prior bad acts evidence can unravel a case. Manning joins me to discuss what went wrong in the Weinstein case and what it means going forward. Jane, welcome to the show.

Jane Manning:

Thank you so much.

Preet Bharara:

So can we start at the beginning and remind folks what it was that Harvey Weinstein was charged with and convicted of?

Jane Manning:

Harvey Weinstein was charged with acts of rape and criminal sexual act against two women. And then he was charged with also a count of predatory sexual assault that was premised on the assault of a third woman, Annabella Sciorra. And he went to trial in early 2020 and he was convicted of first degree criminal sexual act for the sexual assault of Mimi Haley, and I am using her name and the other survivor’s name because they have chosen to use their names publicly. He was convicted of criminal sexual act in the first degree against Mimi Haley, and he was convicted of rape in the third degree against Jessica Mann.

Preet Bharara:

So Jane, in the recitation you just gave, there were three victims who were directly related to the charges brought against Harvey Weinstein, but there were other victims who testified as well. Tell us about who those people were and what the legal basis for their testimony was.

Jane Manning:

Correct. So those were three other women whose cases could not be charged in New York, either because they didn’t take place in New York or because of issues of statute of limitations. And those women also testified to being sexually assaulted by Harvey Weinstein and they described some circumstances that were in some important ways similar to what Mimi Haley and Jessica Mann described. They described Harvey Weinstein approaching them with the promise of professional advancement or an opportunity for professional advancement, and then using that to put them in a situation where he was in a position to sexually assault them. And those three women were allowed to testify by trial judge, James Burke, after he found that there was an exception to the usual rule that would preclude admission of that kind of evidence. But that evidence, those three women, their testimony ended up being the subject of the major point of Harvey Weinstein’s appeal, and it was that issue that ultimately led to the reversal of his conviction.

Preet Bharara:

Right. So I’ve done this on the other podcast, Joyce Vance and I have done it on the Insider podcast, so we might as well have someone who’s very versed in these issues. Could you explain what the rule is in New York for the basis on which you can introduce into evidence other acts, other bad act evidence? What can it be used for and what can it not be used for?

Jane Manning:

Absolutely. So the rules in New York on this are pretty strict, and they stem from a case that was decided about a hundred years ago called People versus Molineux. And so this area of law is often referred to in New York as the Molineux rule. And this kind of evidence is often referred to as Molineux evidence, so meaning evidence that the defendant has committed similar crimes to the one that he’s on trial for. And as I said, New York law is quite restrictive with respect to this kind of evidence. And what the Molineux rule says is that evidence that a defendant has committed similar crimes is not admissible for the purpose of showing that he has a propensity to criminal behavior, but it is admissible for certain narrow specific purposes. So for example, it can be admissible to help show a defendant’s motive. For example, if a defendant committed a murder to kill the witness to a robbery. So you can tell the jury about the robbery in order to explain why the defendant had a motive to commit the murder or you can use this kind of Molineux evidence to help clarify the defendant’s intent or to show that something that an act was not committed by accident or mistake or that it was committed as part of a common scheme or plan. So there are several carefully delineated exceptions to the rule that otherwise prohibits prosecutors from introducing evidence of similar crimes.

Preet Bharara:

Right. And so in this case, what was the particular basis on which the Manhattan DA’s office said they could introduce these Molineux witnesses?

Jane Manning:

The Manhattan DA’s motion has never been made public, it’s sealed like a lot of the papers in connection with the Weinstein case, but the trial judge’s ruling is on the record. And what the trial judge said was that he was going to admit a certain amount of Molineux evidence. And by the way, the three women who were allowed to testify as similar crimes witnesses were three women out of nearly a hundred women who reported sexual assault and abuse by Harvey Weinstein. And apparently, the DA’s office interviewed dozens and dozens of witnesses in connection with Harvey Weinstein’s, other crimes. But of those many witnesses, only three were allowed to testify. So that was already an exercise of some discretion by the trial judge. And he said that he was going to allow these three women to testify because he felt that their testimony was relevant to the issue of intent and to help rebut a consent defense.

So those were two separate grounds for admitting those evidence, both of them were important. I’d like to talk about both of them. So this evidence was allowed and Harvey Weinstein was convicted and he appealed his conviction on the basis of saying that this evidence was prejudicial and should not have been permitted by the trial judge. Interestingly, the appellate division, which is New York State’s Intermediate Appellate Court, upheld the conviction and they really focused on one of the two things that the trial judge said. He talked about the issue of intent and they found that the evidence was properly admitted to help prove Weinstein’s intent and they had some interesting things to say about it.

Preet Bharara:

So at the time that the prosecution moved to have this evidence put in, they prevailed at the trial court level as you’ve said?

Jane Manning:

Yes.

Preet Bharara:

On the first appeal to the Intermediate Appellate Court, they prevailed again. And then even at the highest court in New York State, it was a split four-three decision. So it was very, very close.

Jane Manning:

Yes.

Preet Bharara:

Without asking you to be an armchair quarterback necessarily or view this with 20/20 hindsight, looking back now, was it the right exercise of discretion to seek to introduce this evidence or was it necessary to sustain a conviction? And I guess a related question is one that’s a lesser included question I guess in a way, had they not been able to introduce the Molineux evidence, would they have gotten a conviction?

Jane Manning:

So one can never say what would’ve happened in an alternative-

Preet Bharara:

And it’s a tough balance. This is something that we have been talking about on the podcast for some weeks now.

Jane Manning:

Yes.

Preet Bharara:

That everyone understood that there is some danger when you try to introduce this other acts evidence, but you also have the need and the intent in good faith to get a conviction. So how do you think about that generally and how would you have thought about this in this case at the time?

Jane Manning:

I think that it was reasonable for the prosecution to seek to use some of this evidence, and I think it was reasonable for the trial judge to admit it. I do wish that both the prosecution and the trial judge had done a better job of establishing a good record for purposes of appeal, really spelling out the reasons why this evidence was relevant, because I think that there was a good justification for admitting it. I wish more had been put into the record about that. I don’t know if that would’ve made a difference when the case got to the Court of Appeals. That’s hard to say.

Preet Bharara:

So the case gets to the highest court, which I’ll remind folks, is not called the Supreme Court. It’s called the Court of Appeals. The lowest court is called the Supreme Court. It’s an interesting vagary of New York practice in the judicial system. So what’s the basis on which the New York Court invalidated this conviction based on the admission of this evidence?

Jane Manning:

So the Court of Appeals in their majority opinion said that they didn’t find this evidence to be relevant to any permissible Molineux purpose. So again, under the Molineux rule, the evidence can’t be admitted just to show the person has a criminal propensity. It has to be for a more narrowly delineated purpose. And the Court of Appeals didn’t find any such purpose existed, which was a sharp diversion from what the Appellate Division found. They had found that there was an appropriate rationale and had laid that out in detail.

Preet Bharara:

What is it that the Court of Appeals didn’t buy about the foundation for putting this in to show intent or a pattern? Why wasn’t that sufficient for them?

Jane Manning:

What the Court of Appeals said was that the intent exception to Molineux is reserved for cases where a defendant’s intent is really ambiguous from his actions. And that in Weinstein’s case, both of the complaining witnesses described being physically overpowered by Weinstein, that he used physical force to overcome their lack of consent. And what the Court of Appeals said is when that’s the case, there’s no ambiguity as to intent. And the reason I say that that diverged sharply from the Appellate Division is that the Appellate Division really analyzed the case in light of the fact that both of the witnesses, Mimi Haley and Jessica Mann, testified about assaults that took place within the context of relationship violence, that both of these women were acquainted with Harvey Weinstein before the assaults had had to some extent personal relationships with him before the assaults and went on to have personal relationships with him and even some intimate contact with him after the charged sexual assaults.

And the Appellate Division said, violence that takes place in the context of domestic violence or within the context of relationships has a lot of nuance to it. And a jury might look at these relationships and say, the assaults that the women described did not involve overwhelming acts of conspicuous violence or injury. And that a jury could look at them and say, did Weinstein really understand that these women weren’t consenting? They had had consensual contact with him before and or after. Did he really understand that they weren’t consenting? And what the Appellate Division said was, Molineux evidence was appropriately admitted here because Weinstein had had so many interactions with women who said no, and he was an experienced hand at using force or coercion or intimidation of many kinds to overcome women’s lack of consent. And that context is relevant here in the case where for Mimi Haley and Jessica Mann, the prosecution had to prove not only that they didn’t want these sex acts, but that Harvey Weinstein knew that they didn’t want it. And within that context, the Molineux evidence was relevant.

Preet Bharara:

I should point out here, I think it’s correct that you and your organization put in an amicus brief for a friend of the court brief in this case on the side of the prosecution. Is that right?

Jane Manning:

That’s correct, we did.

Preet Bharara:

So is it fair to say that you think that the Court of Appeals decision was incorrect?

Jane Manning:

Yes, I do think it was incorrect. I think that the Court of Appeals could have and should have upheld the conviction on both grounds. We’ve talked about one of them but not the other. We talked about the issue of intent. I do think that the Appellate Division got it right. I do think that within the context of relationship violence, there were nuances that a jury could have seen that the Molineux evidence could have shed light on with respect to Harvey Weinstein’s state of mind. So I think that under this well-settled issue of intent, I think the Court of Appeals could have upheld the conviction. But in our amicus brief, we asked the Court of Appeals to do something new because under the Molineux case a hundred years ago, that case was decided at a time when rape was virtually unprosecuted in New York state. And the court that decided Molineux wasn’t thinking about rape cases and what’s relevant to proving rape cases, but they did say in the original Molineux opinion, “These exceptions that we’re laying out, intent, motive, et cetera, they’re not the only conceivable exceptions to this rule. There could be other conceivable exceptions.”

And what we argued in our amicus brief is it is time for the Court of Appeals to recognize how relevant similar crimes evidence can be to rebutting a consent defense because remember, that was the other grounds that the trial judge listed for his ruling. And we said, “Here you have an offender who would deliberately set up these interactions to make them look consensual. He would invite women up to his hotel room, there would be champagne, he would offer them a massage, and after the assaults, he would send them theater tickets or other gifts or favors.” And he set up these crimes within a set of circumstances that could make them look consensual and that could have a jury looking at the facts and saying, “Boy, this champagne, theater tickets, this doesn’t sound like a rape. This sounds like consent,” until you start to see that there was a pattern among multiple women who were set up in this way. And so suddenly facts that could look like indicia of consent suddenly now start to look more like indicia of a method that the perpetrator used.

Preet Bharara:

So we’ve already talked about the fact that there are multiple judges who agreed with your position or at least side with the prosecution in the highest court. It was four to three.

Jane Manning:

Yes.

Preet Bharara:

I note for the record, two of the three I know from my prior life, two of the three were former prosecutors, and maybe that gave them a different perspective on this matter. And one of the dissents in particular from Judge Singus was pretty powerful and pretty scathing. You want to tell listeners the point she made and was she correct?

Jane Manning:

I think Judge Singus was exactly right because Judge Singus talked about the history of what rape victims have faced when they come forward to report a rape and to testify in court. And the truth is that in the past and still to this day, rape victims face heightened obstacles to being believed. They face victim blaming, they face excessive disbelief, and that this kind of evidence can really help shift the dynamic so that instead of all the scrutiny being placed on the victim, “Well, why did she have contact with him afterwards? Well, why did she go to his hotel room?” The scrutiny can be shifted from one victim’s supposed mistakes or counterintuitive to a perpetrator’s pattern of behavior. And she did blast the majority opinion and say that the majority opinion would make it harder going forward for rape victims to get relevant evidence heard by the jury, and I believe that she got that exactly right.

Preet Bharara:

Kind of called the majority naive in a way, right?

Jane Manning:

Absolutely. Because of this argument made by the majority that, “Oh, well, if a perpetrator used physical force to overcome his victims, then there’s no ambiguity about whether he knew that they weren’t consenting.” And she did call that argument naive, and I think she’s right about that. And someone else who thought there might be some ambiguity about the defendant’s state of mind was his own attorneys because when the victims were being cross-examined, in particular Jessica Mann, when she was being cross-examined, there were long series of questions saying, “You voluntarily went with him to his hotel room and you made him think that you wanted it,” and many of these questions referred to other occasions when she was with Weinstein, but there was a tremendous amount of questioning about what you made him think. You made him think you wanted to be there, you made him think you were happy to be there. And so questions that really went to this idea that Weinstein was being made to believe that she wanted to be with him. And Judge Singus quoted from some of that questioning in her opinion, and she said there was a lot done here to try to cast ambiguity around Weinstein’s state of mind. And for that reason alone, the evidence should have been admissible.

Preet Bharara:

So explain to folks what happens procedurally next. Now, we should point out for people that he remains convicted of similar kinds of crimes out of a trial in California, and explain to folks why that’s significant in how the California rule on this issue is different because it’s my understanding that that issue is being raised in California as well.

Jane Manning:

So a lot of people have asked that question, do we have to worry now that the California conviction will be reversed on the same grounds and-

Preet Bharara:

California law is different, is it not?

Jane Manning:

California law is completely different on this question, and people can take some degree of reassurance from that because what California law does is California adopted a statute that is modeled after the federal rules of evidence, and it’s a statute that says that this kind of similar crimes evidence is admissible in cases of sexual assault for any purpose. The federal rule that I just referred to was adopted in the early 1990s as part of the Violence Against Women Act because it was understood that women were having such a hard time and continue to have such a hard time seeking recourse against sexual assault in court. And after the federal rule was adopted, there were at least 16 states that adopted similar rules, and California was one of them. So in California there’s a statute that specifically says that in a sexual assault trial, evidence of other sexual assaults committed by the defendant is admissible for any purpose. And so there were women called to testify in California as in New York, whose cases were not on trial, but who testified about similar experiences of being sexually assaulted by Harvey Weinstein. And those women’s testimony is much less likely in California to lead to a reversal of Weinstein’s conviction than was the case in New York because California law explicitly permits this kind of evidence.

Preet Bharara:

Right. And in New York, it’ll be up to the DA’s office to retry Harvey Weinstein without the use of these other witnesses and that’ll happen at some point, presumably. Am I correct that you have advocated for New York to adopt a rule similar to California?

Jane Manning:

Yes, I have.

Preet Bharara:

What’s the likelihood of that?

Jane Manning:

Well, it’s hard to predict, but I do think that the reversal of Harvey Weinstein’s conviction has really elevated this issue and put it in the spotlight. And I think there are a lot of voices right now, including members of our legislature who are saying it’s time to take a look at this. Assemblywoman, Amy Paulin has introduced a bill, it’s Assembly Bill 4992, and the bill is modeled after the federal rule and also similar to the California rule and the bill would make evidence of similar sexual assault crimes admissible in any sex crime trial for any purpose. And there have been other members of the legislature who have expressed a real interest in supporting this bill. I believe that Senator Brad Hoylman was quoted in the New York Post a few days ago saying that he thought it was time for the legislature to take a good look at this issue.

And that was very heartening to hear because I think the time has come to recognize that this evidence is relevant, that it’s important, and that there are cases where it’s needed. And another thing I would just like to say, what are the fears that is part of the reason for this rule, the reason why the Molineux rule has been zealously upheld by courts all these years? Is the fear that if a jury knows that a defendant has committed similar crimes, they’ll be overcome by prejudice and they will rush right past the evidence to convict the defendant?

Preet Bharara:

They’ll go right to propensity. They’ll say, “This is a person who does this kind of thing, and this is consistent with their bad character, and that’s not permissible.”

Jane Manning:

Exactly. That’s the fear. And what experience has now taught us is that that fear is not borne out by the facts. Take a look at both of Harvey Weinstein’s trials. In both of those trials, Molineux witnesses were brought in to testify to similar crimes, and yet neither jury acted like a prejudiced jury. In both cases, the jury deliberated for days, they asked for read backs of testimony, and in the end, they issued discerning verdicts that convicted the defendant on some counts and acquitted him on other counts. In California, they convicted him of the assault of one victim, but they reached hung juries in the cases of three other victims. I could also point to similar patterns in the Trump trial and the Bill Cosby trial to say that if jurors are presented with this evidence of similar crimes, they may consider it, they may find it relevant, they may use it to help interpret the facts of the complaining witnesses case, but they do not run away with prejudice and rush to a conviction. The evidence has really disproved that fear.

Preet Bharara:

I wanted to say, I’m glad you give a shout-out to Amy Paulin, who happens to be my assemblywoman. I think we have good representation, at least where I am.

Jane Manning:

We do. We sure do. Amy Paulin has been a champion of women’s rights and survivors rights for decades. It was Amy who was responsible for New York State removing the statute of limitations on rape. It was Amy Paulin who was responsible for New York State passing a law against human trafficking and many other really, really important advances for women and for victims of gender-based violence.

Preet Bharara:

This podcast is supported by friends of Amy Paulin.

Jane Manning:

Well, two friends anyway.

Preet Bharara:

Two friends of Amy Paulin. So the last question, and you already made a mention of the Trump trial. We’ve been talking on our podcast for the last number of weeks about this brand of evidence, not in the sexual assault case or a rape case obviously, different context, but the admissibility and the actual admission of some of the similar act evidence for purposes other than propensity. Is there anything about the Weinstein case and its reversal that has any bearing on what’s unfolding in Manhattan Criminal Court in the Trump case?

Jane Manning:

I don’t think there’s much of an analogy to what’s happening in the Trump case, and here’s why. Donald Trump is on trial, of course right now in Manhattan for charges relating to falsifying business records and efforts to cover up illegal campaign activity, illegal financial contributions to a campaign, and that trial is going to involve a lot of testimony involving many different kinds of acts that were committed over the course of many years. The reason I don’t think that’s going to really be impacted by the ruling in the Harvey Weinstein case is that the series of actions, the many actions over many years that are being described in the Donald Trump trial really go to this idea of a common scheme or plan, which is a well-recognized, well-established exception to the Molineux rule, the idea that if you had-

Preet Bharara:

Less controversial and less worrisome.

Jane Manning:

Yes. I think that’s right. I think that’s right.

Preet Bharara:

So we’re not going to be back here in 18 months or 24 months with a Court of Appeals opinion throwing out the Trump verdict if it’s a conviction on these grounds?

Jane Manning:

I think it’s highly unlikely. I think there’s nothing that I have seen or heard about in the Trump trial that is in any way analogous to the facts of the Harvey Weinstein case.

Preet Bharara:

Well, on that note, thank you so much for being on the show. Thank you for your work in this area, Jane Manning. Appreciate it.

Jane Manning:

Thank you so much, Preet.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content including the weekly podcast I host with former U.S. Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The Deputy editor is Celine Rohr. The editorial producer is Noa Azulai. And the CAFE team is Matthew Billy, Nat Weiner, Jake Kaplan and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.