Mark Geragos Expects "Stealth Juror" Argument in Harvey Weinstein's Appeal (Q&A)

Harvey Weinstein - Donna Rotunno - Getty - H 2020
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On Monday a New York jury found Harvey Weinstein guilty on two charges, and his legal team has already said they're "absolutely appealing" the verdict. 

The jury convicted Weinstein of criminal sexual assault in the first degree, based on the testimony of former Project Runway production assistant Miriam Haley, and rape in the third degree, based on the testimony of onetime aspiring actress Jessica Mann. It acquitted him of the more serious charges of predatory sexual assault, which would have required the jury to find that the prosecution proved without a reasonable doubt that Weinstein also committed a sexual crime against Sopranos actress Annabella Sciorra.

Noted defense lawyer Mark Geragos talked to The Hollywood Reporter about the verdict and which aspects of the trial are likely to be reviewed on appeal — including the juror Weinstein's lawyers repeatedly tried to get removed because she wrote a book about predatory men having relationships with younger women (it's being released this summer, and they claim she lied about it during jury selection) and was reading a book about a teenager having a relationship with her teacher (My Dark Vanessa) during proceedings.

Were you surprised by the verdict?

It does violate one of my cardinal rules. If they go past the Friday bewitching hour of 3 o’clock they’re generally hung. I expected a split verdict on the three counts and I thought they would hold hung on the more serious charges.

The prosecutors were able to introduce prior bad acts witnesses because they charged Weinstein with predatory sexual assault, which requires a second crime. The jury acquitted Weinstein of those charges. Is there a higher likelihood of reversal on appeal because the non-charged accusers wouldn’t have been allowed to take the stand but for the charges Weinstein ultimately beat?

To quote a late judge, this case is an appellate lawyer's Petri dish. The issues are formidable. You’ve got the announcing of the L.A. charges the day jury selection starts, the juror who arguably has a financial stake in a guilty verdict, and you’ve got the other crimes predicates, which were rejected. I think sometimes — from a defense lawyer standpoint — the reaction is, what [prosecutors] lack in quality they’ll make up for in quantity. It can cut both ways. If one witness is bad then that tends to infect the credibility of the others. On the other hand, part of the reason he became the poster child for the #MeToo movement was the sheer numbers. The whole thing from an intellectual standpoint is fascinating.

Do you think this outcome reflects an impartial jury?

I will speak to the fairness of the trial. Your greatest fear is a stealth juror. Their argument is going to be there was a stealth juror. I don’t think that’s unique to a rich male defendant. I think it’s unique to high-profile cases. The fear is always going to be that some juror who has some kind of agenda, through a lie or omission, gets on to a jury. There’s also the fact that the L.A. DA announced their charges on day one [of the New York trial].

What are the strongest arguments for an appeal?

I think that juror [who wrote the book], the instructions and the allowing in of the other acts evidence. Part of those instructions were just so unwieldy for jurors and unnecessarily expansive of what the law is. I think the prosecutors would agree, maybe not publicly, they have moved the definition of what legal consent is. It’s not what it used to be. It’s become more legally permissive. Legal consent is now more in the eye of the beholder.

What effect, if any, does this have on the L.A. prosecution?

There are two options here. Do they immediately try to get to L.A. and try that case or do they stay in N.Y. and wait until that’s over? Now that they’re not hung on the predatory counts there’s no decision for the New York DA to make. Arguably, you might want to get to L.A. If you’re stuck in custody you might as well fight the case in L.A. while you’re fighting the appeal. You don’t want to sit and have all kinds of downtime. At his age, any kind of a significant sentence is going to be a lifetime, but you don’t necessarily get credits for time served in both places.