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Weinstein appeal leaves victims in limbo, raising serious questions about justice system

Ruth Green, IBA Multimedia JournalistFriday 23 April 2021

‘This trial — and the jury's decision today – marks a new era of justice’. This was the triumphant message from Tina Tchen, President and CEO of the Time's Up Foundation, in March 2020 after Harvey Weinstein was sentenced to 23 years in prison for rape and sexual assault.

Heralded as a turning point for victims of sexual crimes, the verdict appeared to mark a fitting end to a protracted trial that captured the world’s attention. However, a year on, an appeal against his conviction and controversial settlement agreements fuel concerns about the legal system’s ability to deliver justice for victims of sexual misconduct.

The appeal, filed on 5 April 2021 in New York State Supreme Court, argues that a series of errors compromised the fairness of the trial and led to an ‘excessive’ sentence and calls on the Court to reverse both convictions and dismiss the charge of third-degree rape.

We need there to be more women in the justice system…to ensure that the lens is changing towards equality and more inclusiveness

Elise Groulx Diggs
Co-Chair, IBA Business Human Rights Committee

Luz Nagle is a former Co-Chair of the IBA Crimes Against Women Subcommittee. She believes the appeal’s success hinges on the alleged constitutional violation involving one juror – an issue that Nagle says ‘reads like a soap opera'. The brief cites that Juror No.11 authored a book ‘about the predations of older men against younger women’ but failed to disclose this fact and other interests relevant to the trial.

‘To me, the most significant issue is Juror 11 and whether Weinstein can get his conviction thrown out based on her alleged misconduct,’ says Nagle, who is also a professor at Stetson University College of Law. ‘The defence presented this new information to the judge, who indicated that he would “dump” the juror. The prosecution resisted and managed to prevent the judge from excusing the juror, even after question of the juror in open court.’

Weinstein’s legal team also alleges that the trial was ‘permeated with negative publicity about him and his alleged relationships with women’, claiming that this unduly influenced the verdict. This isn’t the first time concerns have been raised as to whether the justice system can give Weinstein a fair trial against a backdrop of intense media scrutiny. Robert Balin, a partner at Davis Wright Tremaine in New York, acted on behalf of several news organisations in 2019 arguing that they had a First Amendment right to sit in the pre-trial hearing. However, the judge closed the courtroom to the press and the public for that portion of the trial, citing this as the only way ‘to avoid the tainting of the jury pool.’

High-profile cases pose considerable challenges for both juries and judges. Balin, also a member of the IBA Media Law Committee Advisory Board, believes the media can play an important ‘watchdog’ role and that press coverage shouldn’t be restricted. ‘A fair trial does go both ways,’ he says. ‘It is surely the right of the defendant and the accused to the extent that prosecutors need relevant evidence. Wholesome pre-trial press coverage helped that to happen. Closing a courtroom in America is an exceptional act. It is the exception, not the rule. The [majority of the] trial was ultimately conducted in public, as it should be.’

The appeal comes as Weinstein, currently imprisoned in New York State, prepares to face 11 separate sexual assault charges in California. Los Angeles officials have initiated extradition proceedings, which have already been delayed twice due to the pandemic. Settlement agreements have also been reached between Weinstein’s accusers and the Weinstein Company – an $18.8m settlement in New York in July 2020 and a $17.1m agreement in Delaware in January 2021. There are also reports of several other pending lawsuits against Weinstein and executives within the Weinstein Company.

These battles inside and outside the courtroom highlight the ongoing challenges facing the judicial system in bringing alleged perpetrators of sexual crimes, particularly high-profile, well-connected individuals, to account. Nagle says settlement agreements can exacerbate this power imbalance, absolve the accused of liability and ultimately impede justice. ‘Settlement agreements are crafted to avoid protracted litigation, elude accountability, and creates a power imbalance in the adjudication process,’ she says. ‘In this particular case, my concern is that powerful individuals may have influenced or interfered with the delivery of justice.’

The allegations against Weinstein that erupted in October 2017 sparked the global #MeToo and #TimesUp revolutions against sexual harassment and assault. The impact of these movements has been significant, says Elise Groulx Diggs, an international human rights lawyer and Co-Chair of the IBA’s Business Human Rights Committee. ‘There’s been real and tangible progress compared to where we were,’ she says. ‘In the US, there’s been an absolute setback as regards women's rights in general, but women are pushing for progress and being very vocal in their advocacy. I don’t know enough about the facts of the Weinstein case, but not so long ago women often had slim chances of being believed when taking the stand. Now at least their credibility is not being challenged because of who they were or what they were doing. It’s important to remind ourselves of that.’

Groulx Diggs agrees with Baroness Helena Kennedy QC, Director of the IBA’s Human Rights Institute, who illustrates in her latest book – Eve Was Shamed: How British Justice is Failing Women – that laws have been framed by men, not women. Better training, as well as greater representation and participation of women at all levels of the justice system, are necessary to guarantee justice for victims of sexual misconduct. ‘That’s going to take time to really change,’ she says. ‘We need there to be more women in the justice system – whether judges, prosecutors, police, lawyers and others – to ensure that the lens is changing towards equality and more inclusiveness.’

Header pic: Shutterstock.com / lev radin