Why Harvey Weinstein Might Walk

Why Harvey Weinstein Might Walk

Our reporter offers a view from the public line at the Weinstein trial.


I don’t think anyone is prepared for this,” a feminist activist in the public line outside Room 1530 of New York State Supreme Court said during a break in testimony late in Harvey Weinstein’s trial for rape and sexual assault. ‘This” meant the possibility of acquittal or a hung jury.

A group of us had been talking after listening to direct and cross examination of Jessica Mann, whose claims are central to the prosecution’s case. We were four New Yorkers, strangers: three women, one man, of different age and class; one black, one Latinx, two white; an independent filmmaker, an activist, a recent college graduate, and me. Unintentionally, we were thinking like jurors charged to decide if the state was meeting its burden of proof. We had doubts. Our conversation echoed those I’d had before and those I’d have in the coming days with others on the public line, backed against a wall, waiting for scarce seats in a large courtroom already filled with guests and more than 100 credentialed reporters.

Those reporters betrayed no curiosity about the public observers’ assessment of events, at least not that I witnessed across the many days I attended. On elevators and in the restroom, their banter stopped abruptly when they noticed us. For the most part, their dispatches parroted the prosecution’s narrative. The public line was scrappy and searching. By the summation phase, a young woman who days earlier had argued away the contradictions in prosecution witness testimony had decided, “It is a very weak case.” News accounts I’ve seen have emphasized only strength. They did not acknowledge defense attorney Donna Rotunno’s closing as a methodical review of evidence, which raised a mountain of doubt, or describe Assistant District Attorney Joan Illuzzi-Orbon’s as a digressive appeal to emotion, which repeatedly declared Weinstein a “predatory monster” but otherwise sowed confusion. Instead, the media largely characterized the defense argument as an attack on women and sidestepped the vital matter of whether the prosecution had proved its case.

Weinstein faces five counts of sexual assault and rape, including two of predatory sexual assault, which could land him in prison for life. The state’s case hinges on accusations by two women: Mann, who was an aspiring actress in 2013, and Miriam Haley, who was a production assistant in 2006. But the state has been allowed to present the allegations of four others to demonstrate a pattern: three “bad acts” witnesses, whose claims are not part of the charged crimes; and Annabella Sciorra, whose 27-year-old rape allegation, barred by the statute of limitations, has come in through the back door, linked to each primary accuser’s claim in the predatory sexual assault charges. The actress is regarded as the prosecution’s best witness. In a three-hour-and-20-minute summation, Illuzzi-Orbon spent the first hour and 10 minutes on Sciorra, whose images dominated the state’s slideshow, reducing the other women to bit parts. Rotunno had urged the jury of five women and seven men to focus on the two primary accusers, study the evidence, and inhabit their role as the ultimate triers of fact; Illuzzi-Orban had likened their job to being “educated consumers.” They may chafe at the demotion.

On Tuesday, February 18, they received instructions from Judge James Burke. He was also confusing. That was the talk on the public benches. It was soon clear jurors felt the same. They sent him questions: Would he give them written definitions of terms in the charges? He could not. Must they find that the state has proved that Weinstein forced sex upon both the primary accuser in 2006 (or 2013) and on Sciorra in the winter of 1993–94 to bring a guilty verdict on the charge of predatory sexual assault? Yes. Could he explain how they are to consider Sciorra given the statute of limitations? “Any matter regarding statute of limitations are for the judge to consider; you are not to speculate.” Are they to consider Sciorra’s allegation on its own? No.

They’ve been told to use their common sense in evaluating the evidence. They have heard expert testimony on the commonness of a woman’s continued contact with her rapist and on the commonness of any person’s revising a memory based on post-event information. They have heard the striking congruity of memory 27 years after the fact between Sciorra and her friend Rosie Perez, but have also been told by Illuzzi-Orbon, “Inconsistencies…that is the hallmark of truth.” Of the “bad acts” witnesses, one had memories that were so fragmented the DA’s office said she couldn’t be used; she took the stand after 55 visits with a therapist. Another told numerous reporters and her then-fiancé about being propositioned by Weinstein, three scripts for a three-way; at trial for the first time, she recalled that on an earlier occasion he had fingered her. A third, who also had memory issues and who was hectored by police about Weinstein’s genitalia until she told them his penis was “deformed,” accused another woman of shutting her in a bathroom with the defendant; the other woman, testifying for the defense under subpoena, forcefully denied her claims.

Both primary accusers gave accounts that were emotive but were also undercut, sometimes seriously, by other witness testimony or evidence. Haley’s has undergone renovation over various tellings. A calendar she kept is scrawled with the words “I love, I love, I love NY. I love, I love, I love stuff” surrounded by doodled hearts on the week of her alleged forcible oral sex. Later entries related to Weinstein she obliterated, and some of her other testimony, including the bleak characterization of an encounter previously described as consensual, invited skepticism when juxtaposed with e-mails saying “lots of love” or “totally bummed to have missed you.” Her roommate at the time testified that she told Haley, “That sounds like rape” when hearing of the alleged oral sex, but also told Haley to call a lawyer rather than police, did nothing when Haley declined, and could recall no other events in her friend’s life in the immediate aftermath.

Jessica Mann, who spent the longest time on the stand, testified that she lied to the defendant, to her friends, her boyfriend, her mother, her psychic, her life coach over the years when in e-mails or recorded phone calls she said Weinstein “validated” her, “understands” her, was “nothing but good” to her, made her “feel so fabulous and beautiful;” when she said she loved him and had set “boundaries” in the relationship. She said that a friend waited in the sitting room of the hotel suite while she was being bullied and orally raped, that she slept on the floor of that friend’s closet when she chose to stay an extra night in New York after the alleged vaginal rape so that she could go to a screening and celebrate Weinstein’s birthday the next day. The friend (now former) was not called by the prosecution. Testifying under subpoena for the defense, she contradicted Mann in large and small ways and was one of the trial’s most credible witnesses. Other than friends of the prosecutor or members of the DA’s office, no one I talked with felt confident they could tell when Mann was telling the truth and when she wasn’t. If jurors find a witness to be untruthful on some things, they may discard part of that witness’s testimony or all of it. Watching Mann under direct examination, unprepared, twisting, aching to tell a story that could not be told, I felt the prosecution had perpetrated an act of cruelty against her.

How the jurors will discharge their duty is beyond guessing. They have the potent memory of women crying on the stand and scads of complicating or contradicting material if they want it. (An excellent podcast, The Harvey Weinstein Trial Unfiltered, suggests the breadth of evidence, with excerpts of verbatim testimony from each day at trial, read by actors.) In bringing this case the way it did, however, the state has also invited jurors to contend with issues that criminal law is too blunt an instrument to resolve. How those feature in deliberations is, again, unknowable. They surely animated discussion on the public line.

Relationships. The legal teams’ competing, and much-reported, rhetoric aside, it isn’t the fact of the accusers’ relationships with Weinstein but the quality, reflected in real-time communication, that bear attention. Nobody outside Room 1530 doubted that abuse and rape can coexist with a relationship, or that women maintain contact with men who hurt them. What rang false was the prosecution’s gothic language and theory of the case set beside the breezily ordinary language of witnesses’ e-mails to Weinstein—asking how he is, what’s his schedule, when is he in LA or London, can he meet her mom; reminiscing about their first meetings (when he was allegedly inappropriate or violent); asking for help with parking tickets, for job leads and party invitations; updating him on a family member, on feelings, work, a break-up with a boyfriend, her new phone number, her friends’ numbers where she can also be reached; making jokes; mugging for the camera, “Hi, from Berlin!”

Mann said every e-mail to Weinstein was a calculated charade for her own safety. As the court was bathed in the banality of messages, she suggested that the words ought not be trusted, that she had no free will, even typing from 3,000 miles away, even in taking a hair stylist job, even in the confidence with which she had told counselors about her relationship to her “client.” The prosecution insulted her as a “ragdoll,” a hick from the country, and put her in a position where she was compelled to deny any authority or responsibility in her own life, to disown her words, her prior self, as fraudulent. “I put myself in the lion’s den and it was exciting…it was a thrill,” she had written to a boyfriend in 2014. That does not prove she had not been raped, but jurors must consider the totality of evidence, and if they have doubts, those would not be unreasonable.

Why people do the things they do, what’s complicated about anyone’s vulnerability and power in a relationship, what’s transactional, how time, suggestion, and changed circumstance can transform what formerly was acceptable or maybe regrettable into something utterly debased and criminal—all the messiness that people know from their own lives was raised only by the defense. Though partisan and narrow, Rotunno’s theory of the case, that sex with Weinstein was a form of barter, was situated in the real world. ADA Meghan Hast’s opening statement best captured the state’s approach: “These were not mutual adult relationships.… He was the Old Lady in the Gingerbread House, luring the kids in, missing the oven behind.”

Shame. “What is this saying about women’s sexuality? About women’s agency?” a 40-ish woman exclaimed during a break in testimony. Vital to the state’s case was the idea that women so beautiful, so perfectly formed and innocent, could never have chosen to have sex with Harvey Weinstein. Already a metaphorical monster, he was made a monster at trial: physically “deformed,” “abnormal,” “intersex,” “disgusting,” “scarred,” “grunting,” with bumpy skin, lumpy semen or no semen, “fat,” “hairy,” stinking of “shit, sorry, poop,” a beast, unmanned, subhuman, possibly “autistic,” but also a “genius.” Never has body shaming and the beauty trap, the “normal” trap, been so wielded as a weapon of presumed progressive justice. As my fellow observer suggested, the shaming of Weinstein inevitably required that his accusers be ashamed too. Jessica Mann said, “Honestly, I felt compassion for him,” and also spoke about “negotiation”: “I thought we were creating a fantasy, as if we were having normal sex.” She said she’d felt used, but also admitted using him. She suggested he was a daddy, and said in passing late in her testimony that she was a huge fan of Beauty and the Beast. In this setting, though, she could not possibly admit that she had ever had any attraction or any pleasure across the years that she was intimately involved with him. This raised questions on the public line, and perhaps among the jury. If he really is so damaged, or insecure about impotence etc., might he have needed to believe the lies women told of love? What if they didn’t act like victims but like volunteers?

Complicity. The jurors may review, if they wish, a May 22, 2014, e-mail, which prompted the most emotional moment of the trial. Jessica Mann was writing to her boyfriend, an actor named Eddie, saying “I lived in fear of [your] rejection.” The letter defends her relationship with Weinstein, saying he could see past the jumble of her life. It says nothing negative about him. It indicts Eddie for shaming her, for having no sympathy or love. It mentions a sexual assault in her youth. She cried while reading it, told the judge she was having a panic attack, and was ultimately excused for the day. Earlier she had testified that her “worst nightmare” was that her friends would find out about her and Weinstein, that she would have a “stigma”—in other words, that the industry that openly joked about Weinstein’s casting couch, that basked in its history of sexual barter, that has seen legions of young women (and at least one non-accuser who testified) trade intimacy for the chance to break into the intimate art of film, that this same industry could destroy people who live by its unwritten rules.

Jurors have been instructed to use their experience in evaluating the evidence. One of them has a debut novel coming out in July that involves young women interacting with “predatory older men,” according to one description of the plot. She was not forthcoming about this during voir dire, and the defense, which had run out of peremptory challenges, sought to strike her for cause. The judge disagreed, and disagreed again on February 18, when the defense moved to replace her with the first alternate, producing a review she’d written during the trial of a book involving a “repulsive” predator. It’s hard to see how her commercial prospects do not put a thumb on her decision. Convicting the monster would gain her instant media cachet; acquitting him would likely have negative consequences. It’s hard to imagine, though, that there is not at least one juror who was as troubled by the state’s case as some on the public line, so people speak of deadlock. Some aren’t so sure. Others say he’ll walk.

Correction: A previous version of this article incorrectly implied that Annabella Sciorra was testifying as one of four “bad acts” witnesses. There are only three “bad acts” witnesses; Sciorra is not one of them. Her testimony is tied to a predatory sexual assault charge against Harvey Weinstein. A previous version of this article also misspelled Assistant District Attorney Meghan Hast’s name. This article has been updated.

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Editorial Director and Publisher, The Nation

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