How Harvey Weinstein might build a defence in the face of 'constant clobbering'

​While the sexual assault case against Harvey Weinstein poses challenges for both the prosecution and defence, legal experts say it could hinge on the judge's rulings on some significant legal issues. 

Cases such as these — often referred to as "he said/she said" because only two people are present — generally tend to be more difficult for the prosecution, who have the burden of proving the defendant committed the acts beyond a reasonable doubt.

But what's unique in the Weinstein case, says former prosecutor Mark Bederow, is the vitriol that's already been directed toward the 66-year-old Hollywood producer.

"[It's] the constant clobbering of him in the media, whether warranted or unwarranted; that everybody seems to know that at least 80 women have accused him of sexually assaulting them," said Bederow, who used to work in the Manhattan District Attorney's Office.

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"So I think it's not 'he said/she said' in the sense that there's extra judicial evidence that could certainly be known to potential jurors. And that's troubling if you're a defence attorney, for sure."

Matthew Galluzzo, a former prosecutor and member of the New York County District Attorney's sex crimes unit, agrees it will be difficult finding individuals who are willing to cast aside the dozens of sexual misconduct allegations that continue to grab headlines. 

"It's going to be very difficult to get a jury who's not going to have some preconceived notions about Harvey Weinstein abusing his position as a Hollywood mogul … So that that's an extreme challenge for the defence," said Galluzzo, who now works as a criminal defence attorney.

 "I think it's going to be tough to get 12 to say he's not guilty."

On Tuesday, Weinstein pleaded not guilty to rape and criminal sex act charges before a judge in New York.

The cases involved two women in New York. One complainant, who has not been identified publicly, told investigators that Weinstein cornered her in a hotel room and raped her in 2013. The other accuser, former actress Lucia Evans, has gone public with her account of Weinstein allegedly forcing her to perform oral sex at his office in 2004.

Dozens more women have publicly accused him of sexual misconduct, ranging from harassment to assault in various locales.

Allowing other accusers

But for this case itself, the judge's ruling on whether court will hear from other women who have accused Weinstein of sexual abuse could be critical. The successful prosecution of Bill Cosby was, in part, attributed to the judge allowing five women who said they were sexual assaulted by the comedian to testify.

"There's no slam dunk that that will happen," said Bederow. "Generally it's not admissible. There has to be some reason other than saying if he did it once, he probably did it again.

"But it certainly could happen and that's a big problem potentially for the defence."

Resources

One main advantage for the defence is that in this case, and in other similar high-profile cases involving wealthy defendants, they have unlimited resources, said Galluzzo.

Weinstein's lawyer could spend lots of money on private detectives to look into the backgrounds of the complainants, he said, trying to unearth any incriminating evidence in an attempt to shatter their credibility.

"I don't know what dirt is out there, so to speak, on the complainants in this case. But if there is any, I suspect they're going to find it," said Galluzo, who was in court Tuesday for Weinstein's arraignment. 

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A potential red flag for prosecutors could be the time it took for the women to come forward, he said. The defence may argue they are attempting to secure some kind of financial compensation.

"There are some easy arguments for a defence attorney to make about why someone would come forward 14 years later," Galluzzo said.

However, he said the public is becoming more accepting of the explanation that a lot of the rape victims wouldn't initially come forward "when there's so many reasons why a victim wouldn't want to go through with it."

Weinstein's lawyer, Benjamin Brafman, has already suggested one line of defence: the woman who has accused his client of rape was in a decade-long consensual relationship with the film producer that continued after the alleged attack.

While it doesn't negate that a crime could have taken place, "it certainly opens the door to letting the jury hear about those other occasions where it was consensual," said Lisa Houle, a former deputy district attorney in Los Angeles County who now has a private criminal law practice.

"If there is reasonable credible evidence to support that there exists a consensual relationship before or after, I would certainly fight as hard as I could to get that evidence in. It shows a pattern of consent," she said. "And then you can say: this woman is now arguing that this one ill-fated night was not consensual — but that's inconsistent with their relationship."

'Casting couch' defence

Brafman also hinted in a recent news conference that he might use the "casting couch" defence, suggesting that his client may have engaged in bad behaviour, but not in non-consensual sexual activity.

"If I were on that defence team, I would be thinking: 'How can I get that evidence in a reasonable, credible, fact-based way. There's got to be somebody that can talk about that," said Houle.

Bederow said it's certainly a "very nuanced type of defence" that Weinstein may not be the most likable person in the world, but that women were willing to get involved with him — even if he was acting immorally.

"He will argue that that's consent," he said. "I think that's going to be a difficult defence. It's probably one which would require him to testify, which nobody would want. But it may be unavoidable here and there's such a chance of that failing spectacularly."

Another important ruling for the defence will be whether the judge agrees to split the charges into two cases. 

Galluzzo said he believes Weinstein has a good shot at severing the cases because the alleged incidents are unrelated.

"You do not want one jury hearing both women at the same time," he said. "They might say: 'Well, I don't know about her — but then she has told the exact same story, so I guess he's guilty of both."