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What Bill Cosby’s overturned conviction could signal about Harvey Weinstein’s case

A New York appeals court overturned Weinstein’s 2020 rape conviction Thursday, but he will remain in prison.



Harvey Weinstein’s legal team saw some hope on the horizon when Bill Cosby’s indecent assault conviction was overturned three years ago by Pennsylvania’s top court.

“The Pennsylvania Supreme Court has demonstrated, once again, that no matter who a defendant may be and no matter the nature of the alleged crime, courts can be relied upon to follow the law and come to the correct decision,” Juda Engelmayer, a spokesperson for Weinstein, said in 2021 after Cosby was ordered released from prison after serving three years of a 10-year sentence.

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“This decision also reaffirms our confidence that the Appellate Division in New York will reach the similarly correct decision in Harvey Weinstein’s appeal, considering the abundance of issues that cry out for a reversal.”

On Thursday, Engelmayer’s words proved prophetic.

A New York appeals court overturned Weinstein’s 2020 rape conviction, paving the way for a new trial for the disgraced one-time Hollywood heavyweight.

Unlike Cosby, who had been convicted on three felony counts of aggravated indecent assault in 2018 of drugging and assaulting a woman in 2004, the ruling does not spring Weinstein from prison.

Weinstein remains behind bars because he was also convicted in 2022 of rape in a Los Angeles court and sentenced to 16 years in prison.

But Cosby’s spokesman, Andrew Wyatt, said that “whether rich or poor” all Americans are entitled to due process. And he said people outraged that another convicted predator won an appeal should, in essence, get over it.

“The public must ease their personal feelings about Mr. Cosby and Mr. Weinstein and look at the lack of facts, evidence and proof, without trying to ‘arm chair’ quarterback a person’s Constitutional Rights because that’s an injustice for all American Citizens and a disgrace to our democracy,” Wyatt said in a statement.

Duncan Levin, one of Weinstein’s New York criminal attorneys, conceded there are similarities to the Cosby case.

“This is the Court of Appeals taking a stance about due process and sending a signal that due process is really about doing the right thing even where this is obviously a difficult decision for the court to make,” especially regarding a “very unpopular defendant,” Levin said. “And they’re sending the signal that due process means doing the right thing in every case for everybody.”

Weinstein, 72, has been serving a 23-year sentence in a New York prison following his criminal sex act conviction of forcibly performing oral sex on a TV and film production assistant in 2006 and rape in the third degree for an attack on an aspiring actor in 2013.

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In a 4-3 decision, the New York appeals court Thursday found that the judge in the landmark #MeToo trial made several improper rulings that swayed the case against Weinstein, including a decision to let three women testify about allegations that weren’t part of the case.

Deborah Tuerkheimer, a law professor at Northwestern University and a former assistant district attorney in Manhattan specializing in domestic violence prosecution, said the close ruling reflected how divided the judges were on the issue of whether the trial court erred. She said the judge allowed the witnesses to testify about Weinstein’s alleged actions to show there was a pattern to his predatory behavior.

“In these gender-based crimes, the question of patterns comes up a lot, and so these are hotly litigated issues,” she said.

In Weinstein’s successful appeal, Tuerkheimer said, “what is clear is that the court was very concerned about fairness, and they determined that by allowing those witnesses, it was prejudicial and this evidence shouldn’t have been admitted, and it likely changed the outcome of the case.”

Michelle Madden Dempsey, a law professor at Villanova University and a former domestic violence prosecutor, dismissed the New York appeals court’s reasoning as “shocking and nonsensical.”

“The majority’s opinion reads like an attempt at gaslighting,” Madden Dempsey said. “Victims are routinely told by prosecutors that their cases cannot be prosecuted because sexual encounters are nuanced and involve blurred lines — and so, they claim, juries will not convict, even if they believe the victim’s testimony.”

“Yet, here, where a case finally does get to a jury, and the jury convicts, the highest court of the land swoops in and overturns the conviction because the facts are supposedly ‘unequivocal,’” Madden Dempsey said.

In a statement, the Manhattan district attorney’s office said it would “do everything in our power to retry this case.”

Tuerkheimer said regardless of what happened in New York, Weinstein’s 2022 conviction in a Los Angeles court in another rape case still stands.

But Weinstein’s legal win, coming three years after Cosby’s conviction was overturned, shows how hard it is to get prosecutions in high-profile cases involving well-heeled men to stick.

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“It’s really hard to look at just this latest case and say this is where the system failed victims,” Tuerkheimer said. “I think the problem is much more widespread, and it touches on all parts of the criminal justice system. Until it can be fixed, the system is going to continue to deliver justice only imperfectly to victims.”

Cheryl Bader, a former federal prosecutor who is now a professor at the Fordham School of Law, said in both the Weinstein and Cosby cases it’s important to note that the accusers’ credibility was not the reason the convictions were overturned.

“This feels like a blow to the #MeToo movement, and I think this ruling will retraumatize vicitms, but I’m hoping the victims will see the court’s ruling in a limited way,” Bader said.

In hindsight, Bader said, prosecutors could have tried a more limited case against Weinstein without the testimony from the additional witnesses that “could backfire on appeal.”

“Hopefully, this won’t dissuade victims from coming forward,” she said.

NBC News