If you think the justice system matters—and if you think Harvey Weinstein should be held to account in New York for his alleged crimes there as quickly and severely as possible—you should be appalled at Los Angeles District Attorney Jackie Lacey’s ill-advised decision to pick Monday as the day to publicly announce that she was charging the man whose many alleged abuses sparked the MeToo movement with raping one woman and sexually assaulting another in 2013.
Those eight charges—including rape, forcible oral copulation, sexual penetration by use of force, and sexual battery by restraint—were announced two years after a task force Lacey created began reviewing sexual abuse allegations against Hollywood big shots.
As Lacey declared that Weinstein would be the first task force case to result in charges, the man himself was behind the defendant’s table on the other side of the country as a judge sorted out the rules for his Manhattan trial on five charges including predatory sexual assault and first-degree rape in the long-anticipated case of the People of the State of New York v. Harvey Weinstein.
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Lacey—who gratuitously added that Weinstein had threatened to kill a witness, that bail in the amount of $5 million was necessary to secure his appearance, and that Weinstein, 67, faced 28 years in prison, or in other words, a life sentence—insisted that the overlap of her announcement with the trial across the country was a fluke, since “it turns out coincidentally that our case was ready to go this year. This was the first business day we could get everyone together that we needed in order to do this.”
Less than 24 hours later, jury selection began in Manhattan, where the defense, without Lacey’s intervention, already faced the daunting task of finding jurors they hope will focus exclusively on the evidence presented in the courtroom, ignore the years-long barrage of brutal press about Weinstein, and unequivocally state they will acquit him if the prosecution doesn’t prove their case beyond a reasonable doubt.
Some coincidence. And good luck. Lacey’s timing couldn’t have been any better timed to throw a wrench in the New York legal proceedings. By announcing the charges immediately before jury selection, the L.A. DA ensured that prospective New York jurors would know that Weinstein was being charged in California with virtually the same charges he was on trial for in New York—before the trial judge even had an opportunity to warn them about avoiding the media attention. Not surprisingly, one day after Lacey’s dramatic announcement, at least 40 prospective jurors were relieved because they said they believed Weinstein was guilty before hearing one speck of evidence.
Indeed, Lacey’s announcement stinks of a political and public relations stunt with little regard for the legal process unfolding in New York. The filing of charges, the details she released in support of them, and her ominous announcement that the investigation “remains open” practically assured prospective jurors in New York (and Los Angeles) that in Lacey’s professional opinion, Weinstein, who is literally standing trial for predatory sexual abuse, is a sexual predator who should be warehoused in prison for the rest of his life.
Maybe so. Lacey has every right to, and indeed should, prosecute Weinstein if there is credible and sufficient evidence to establish that he committed serious sexual crimes in LA. Time will tell if they have that evidence. A lot of time, apparently.
Because after publicly announcing the California charges, Lacey acknowledged that “an arraignment will be scheduled at a later date.” Translation: She won’t prosecute until after the New York trial, which is expected to last two months. She didn’t explain why she chose to give the public “advance notice” in the loudest possible manner about the charges— and her intent to jail him pretrial in lieu of $5 million bail and make sure he dies in prison—on the same day Weinstein’s trial started in Manhattan.
The prejudice Lacey caused Weinstein from 3,000 miles away is real. Based upon what we know so far, the New York case against Weinstein is no slam dunk. Far from it, actually. Years passed before the witnesses in the Manhattan case accused Weinstein of any non-consensual sexual activity. At least one of the counts is complicated by electronic communications that are at least consistent with the defense’s core claim that any sex was consensual. The Manhattan DA already had to dump counts related to another accuser and jettison a detective from the case due to his alleged shenanigans. On the eve of trial last fall, the DA had to supersede his own indictment to make sure additional witnesses could testify. In addition, a seemingly strong prior misdemeanor case against Weinstein, which included an audio recording of Weinstein admitting to touching a model’s breast, inexplicably fell apart.
In the event that Weinstein is convicted in New York, it is virtually assured that Lacey’s stunt will constitute one point in his appeal. The weaker the case, the greater the likelihood an appellate court finds that prejudice to a defendant might have deprived him of the right to a fair trial.
Lacey’s virtually unprecedented decision to jump, from the West Coast, into the Weinstein circus immediately before the big top opened in New York isn’t the only bizarre connection between the two cases. Jane Doe 2 in the Los Angeles charges is expected to testify at the New York trial to show Weinstein’s alleged pattern of sexual abuse. This is remarkable and extremely risky for the Los Angeles DA. One wonders why the L.A. prosecutors would allow this, given that Jane Doe 2 is now an essential witness in L.A. Weinstein’s lawyers will be afforded the rare opportunity to vigorously cross-examine and potentially discredit the L.A. charges at the New York trial before he is even arraigned in California. If you take the long view, this essential L.A. witness testifying in New York may actually benefit him. Strange days indeed.
Nothing is more sacrosanct in our criminal justice system than a defendant’s right to due process, including the right to a fair and impartial jury. All lawyers who practice criminal law, including prosecutors, recognize this. If Weinstein is guilty, he’ll deserve every day of the lengthy sentence he gets. But until then, no matter how despised he is, he is presumed innocent until convicted by a fair and impartial jury.
If the system matters to you, this is how it works. Even for criminal defendants that large segments of the population find repulsive. And if you think Weinstein belongs behind bars, and should stay behind bars, you don’t want to see prosecutors jumping the line and screwing that up.
One hopes that when Weinstein is tried in California, Lacey will have more respect for his right to a fair trial in her own backyard than she did for his right to a fair trial in New York.
