Mark Geragos: How the Weinstein Criminal Case Will Be Won and Lost (Guest Column)

Harvey Weinstein arrives at Manhattan Supreme Court for a new bail hearing, on December 6, 2019 - Getty-H 2019

A top Hollywood attorney whose clients have included Michael Jackson and Chris Brown games out the courtroom battle and explains what both sides will try to do to persuade the jury.

Like many high-profile cases, the Weinstein trial will be won or lost in jury selection. The defense recognized this early on, which is why they unsuccessfully sought a change of venue outside Manhattan. That failed, but the case may not be the slam-dunk conviction that some might predict. Most jurors who stridently assume guilt will not be shy in expressing those opinions. As such, they will self-select out of the jury in what are called for-cause challenges. Those jurors who are left will, if they’re honest, probably presume guilt. However, absent stealth jurors who lie to serve on a notorious case, a juror who presumes guilt and is honest about it might be someone the defense wants. It seems counterintuitive, but what the defense is looking for is a juror who is honest in admitting a presumption of guilt and willing to set aside that predisposition. It’s also worth noting that, while people may assume the defense will want to avoid female jurors, it is a trial lawyer’s axiom that female jurors are the hardest on other women.

Both sides will need to navigate the current political climate. Historically, the defense typically seeks out a liberal-leaning jury pool. However, a dramatic turn of events has occurred and many now label the Republican party as the strongest proponents of the rights of the accused. Many potential jurors who would normally question other types of crimes do skeptically view sexual harassment in the context of he-said/she-said evidence. Exhibit A is U.S. Supreme Court Justice Brett Kavanaugh’s confirmation hearing and the Senate Republicans’ treatment of his accuser, Christine Blasey Ford.

The court’s approval of so-called Molineux/Sandoval witnesses expands the prosecution’s ability to use testimony from women who are not charged as victims in this case, but potentially describe similar acts as those charged. In the Phil Spector and Bill Cosby cases, this “other acts” evidence was viewed by many observers as especially damning. This makes it very unlikely that Mr. Weinstein will take the stand. As such, the defense will wage its real battle challenging the credibility of the investigation as a whole and the credibility of the complaining witnesses. Much like the Cosby defense, an anticipated theme is the passage of time since the alleged encounters occurred.

Weinstein’s case revolves around a rape accusation dating back to 2013 and a sexual assault of a different woman in 2006. Donna Rotunno, who will lead the defense, has already taken the position that the witnesses will be aggressively challenged without regard for cultural correctness. The (politically incorrect) position she staked out on ABC’s Nightline, "If you don’t want to be a victim, don’t go to the hotel room," may shrewdly resonate with certain jurors.

The reach of social media and Internet fame is an angle that the defense will invariably plumb to suggest that there is an almost automatic praise for "victims" in the #MeToo era. The defense will hammer the theme that the presumption of guilt or the idea that women must be believed doesn’t apply in a courtroom. In addition, the defense will bring up the financial motives on the part of witnesses, hammering home that these were adult transactions and all of the subsequent complaints were not made in real time — but only when there was a payday on the horizon. The prosecution will anticipate this gambit and front-load the bravery of the witnesses and explain their texts and emails with Mr. Weinstein as part of the power imbalance, referencing victim psychology to explain the delayed complaints.

Another subtext during the trial will be the defense efforts to show that the investigation was tainted from its inception. The prosecution has already been forced to dismiss a portion of the case when it was revealed that one of the NYPD detectives involved apparently thought nothing of coaching a witness and supposedly hid from the prosecutors witness statements unfavorable to their case. At the same time, the prosecution will try to either mitigate that evidence or have it excluded altogether. There will undoubtedly be evidentiary skirmishes over the amount of testimony about the investigating officer’s influence and how far the defense will be allowed to dive into the bias of the officer who has left the prosecution team.

A seemingly overwhelming case for guilt may indeed evaporate once witnesses take the stand.

Mark Geragos is a veteran criminal defense and civil litigation attorney whose Hollywood clients have included Michael Jackson and Chris Brown.

This story appears in the Jan. 8 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.