Harvey Weinstein Trial Is a #MeToo Reckoning

all that it generated. Weinstein arrived at the Lower Manhattan Court House on Monday morning, surrounded by his lawyers and a security team, and met by scores of photographers and television cameras and about twenty women, including the actors Rosanna Arquette and Rose McGowan, who both say they were abused by Weinstein. As one of the silence bakers, I stand in solidarity with the brave survivors who will take the

stand against Harvey Weinstein in this trial. I thank those testifying for standing not just for themselves, but for all of us who will never have even one day in courts. Joining me as former federal prosecutor Laurie Levinson, a professor at Loyola Law School, the scope of this trial encompasses so much more than the allegations. Explain how that affects what happens inside the courtroom. Well, the first question is how it might affect the jurors who sit on this case.

A lot has changed since the beginning of the Harvey Weinstein case, and I think people are much more alert and much more sensitive to these issues, and that makes it more likely that the accusers will be believed in the courtroom, or even that the jurors might have some type of agenda of convicting Harvey weinsteemed to send a message the jurors are going to be hearing a very narrow case, the charges resting largely on the testimony of

the two women Weinstein's charged with assaulting in two thousand and six. But the judge is allowing the prosecution to call other women, so called prior bad act witnesses, to testify about how Weinstein allegedly assaulted them. Could that be a game changer? Yes, that's likely to be a game changer. And we know that from the Cosby case, which is their strength in numbers, and that maybe one or two

women could be attacked on cross examination. But the prosecutor always wants to show a pattern of conduct, not to say that this was just sort of an isolated situation, but to put it into context, so without those additional witnesses, it makes it much more difficult to get a conviction. Weinstein's lead attorney, Donna Rotuno, downplay the effect of the number of accusers staying on CNN that it might actually

benefit the defense. I think in some ways that number sort of helps us, because once the jury sits down and the jury hears that this is only about two women, I think they start to wonder how truthful those other circumstances are, or if there were so many, why aren't they a part of the criminal case. Is that just trial lawyers bluster? I think that's wishful thinking. I mean, it is true that the jurors are going to be told that this is just being used for a narrow purpose.

It's also true that there are dozens more accusers out there against Harvey Weinstein who are not having their cases tried in the courtroom. And so she might be saying, you know, ladies and gentlemen, there were a lot of accusations out there, but they didn't bear enough truth to be tried, and therefore you should be suspicious of the ones before you. After dropping several lawyers Weinstein now has a female defense attorney, and that sort of fits an

old troop. Does she have an advantage in cross examining the women in this case in any respect? Well, the optics can be slightly better. I mean, it doesn't look good when you have men beating up on women making accusations of sexual assault. It looks like the women are being assaulted again. So just the optics might look better. But I'm not sure how far that will carry her, because at some point, if she gets tough in that examination, what the jurors will hear and what they'll see are

the witnesses being attacked. Initially, I think that there's just sort of this unconscious reaction by some people. Oh, if a woman's representing an man, you know, there must be a good reason. Why would she go out on a limb to do that? But I think yours are pretty sophisticated to know that it's not just about those optics.

Weinstein has released some emails that he and the alleged rape victim exchanged for years after the attack, and his lawyer said, these are women who have spent time with him over periods of time, and I think we have evidence to show that the time was nothing but positive

and favorable. Could those emails help him? But those emails, frankly could help him if in fact the jury believed that, they show that it was not a traumatic event, it was consensual encounter, and that's why these women continued to have contact with him. But again, I don't think it would come as a big surprise to what jurors that these women actually were forced into these contacts according to the prosecution, and that they didn't have much choice to

stay in contact with him. They didn't have much choice but to be nice to him because of the power differentiation. Here. Here's a man who had tremendous power. That's how he got what he wanted with them and continued to have that contact. I've been talking to Professor Laurie Levinson of Loyola Law School about the Harvey Weinstein trial, which is

now in jury selection. Laurie, it seems to me that one of the impacts of the me too movement on the trial is that jurors might better understand the power dynamic that you were just discussing with regard to the emails between Weinstein and one of his accusers. I do think that that's been one of the great progress that's come with Me Too movement, which is to sort of give people a peek into the real world there that women often do things that they don't want to do.

They don't complain, they go along with the game because they didn't feel like they have much choice. And then the more that came out of people in power and in power that did this, the more sophisticated. I think the populace became an understanding why women would say yes when they don't really mean yes. You mentioned optics, and on the first day of trial we saw the optics of Harvey Weinstein going into court hobbling over a walker, not looking like the Harvey Weinstein power broker of old.

Does that affect the jurors in anyway? It could. I mean it's a defense one to try to exploit it and say, you know, basically, he's just sort of a feeble old man. He's not some type of sexual predator. Just look at him. Then maybe some jurors would say okay and even feel some sympathy. But again, I think people are fairly sophisticated. I mean, one of the reasons he looks like this is because of recent back surgery.

He didn't always look like this, and also, you know, given his appearance, it might actually help the prosecution when they argue this is not some suave guy that all these women wanted to have a relationship with, and that that would undercut the defense argument of consent. Now, Weinstein is not expected to testify, and the jurors will be told they can't consider that. But I always question whether in the back of their minds, no matter what the

judge says, they do say, well, why didn't he testify? Well, they won't say it that directly, but I do think that we know that jurors sort of have in their mind, you know, if he had something that would help him, why wouldn't he let it be known? Like you said, why wouldn't he testify? There's fisted enough not to say that during jury deliberations, ordinarily because they've been instructed not

to do so. But how it factors into their individual decision making, Yes, I do think that they still consider that is there going to be a key moment in the trial? Is there going to be testimony that the trial sort of hangs on? Well, I think that the key moments will be when the accusers, when the alleged victims come forward and are actually on the witness stand, and people not only hear what they have to say, but see how they say it. That's how we often

evaluate who we believe in who we don't. So, um, I think what is said from that witness stands going to be key. Also, you know, ironically, even though it's not evidence, how Harvey Weinstein responds while he's sitting in that courtroom, we know that jurors will look at everything in the courtroom. So if there's some type of unusual response by win seeing during this trial, that could be a key moment as well. And speaking about behavior in the courtroom, what I find a little odd, and of

course there's no jury there yet. But the judge reprimanded Weinstein for defying his earlier order banning him from texting in the courtroom, saying he'd seen Weinstein with no fewer than four cell phones in court on Tuesday morning and warning him that he would be jailed if he flouted the order again. Now, that's not how a defendant should be behaving before a trial judge, is it. Well, you

certainly don't want to up set the judge. Um, the judge has a lot of discretionary calls to make throughout this trial, Jurors usually looked to the judge to sort of take cues. How does the judge feel about this case? So, getting the judge on the wrong sign this early in

the proceeding not a good thing to do. I want to discuss for a moment the celebrity factor here, because not only is a well known actress going to be testifying as one of the so called prior bad Acts witnesses, but some famous actresses say they're going to be sitting in the courtroom. Also, the judge released a list of possible witnesses, including actresses like Charlie's Farren. So how does the celebrity factor play here? We know from prior cases

that there's quote a celebrity justice element. You know, which way it goes depends on the case. But jurors realize one thing, which is this is a really important case and if it looks like there's a cheering section for one side or the other, jurors will pick up on that. Now, there's not supposed to be anything overtly done by the people sitting in the trial, but it puts out a

pressure on the jurors. They know that their verdict will be scrutinized, that there's a whole group out there, a constituency, waiting to see how they rule. On Monday, as Weinstein was about to go on trial, California state prosecutors charged him with raping one woman and sexually assaulting another in twenty third team. Here's the Los Angeles District Attorney, Jackie Lacey. My office has charged Harvey Weinstein with sexually assaulting two

women in Los Angeles County. We believe the evidence will show that the defendant used his power and influence to gain access to his victims and then committed violent crimes against them. If convicted has charged in the case, defendant Weinstein faces up to twenty eight years in state prison. My office will ask the court to set bail at five million dollars. Once the defendant's case is completed in New York, we expect him to appear in a courtroom

in Los Angeles County to face these charges. Is the timing suspicious? Oh? I think Actually? The district attorney said, I didn't want to do it earlier because I didn't want to interfere with the trial in New York but I do think it's to the advantage of the Los Angeles prosecutors to sort of wait and see what happens in New York. First of all, if they get an fiction in New York, they'll be able to use some of maybe those witnesses as the prior acts and showing

the scheme. It could even force some type of plea deal, although I think at this point not much of an offer would be made to Weinstein. But equally important, if they lose the case in New York, the prosecutors in Los Angeles can learn from any mistakes. So yes, going second and something like this has its strategic advantages. So for Weinstein, he'll be fighting one set of charges in court, and Nose he has to face another set of charges in another state, facing more jail time. Is there a

psychological factor here, I think so. I mean it just wears him down. There's no light at the end of the tunnel, you know, because even if he wins this one, he's going to go through it all over again. And it just becomes very apparent that nobody's backing down from this. You know. When it initially started, I think there was a thought that well, okay, there'll be a few will

swap them away, but eventually this will go away. Just how long it will take to get through these proceedings for the next five ten years of Harvey Weinstein's case, it's all about these trials. Now, many people are expecting a conviction here. But in the past, we've seen many cases, and you and I both cover the O. J. Simpson trial where you think there's going to be a conviction but the jury quits. Oh. Absolutely, that's the nature of trials.

You know, expect the unexpected, especially in a high visibility case. And as you mentioned, there's o J. There's Michael Jackson, the Robert Blake, the list goes on. So I don't think anybody should sort of say this is a done deal. The lawyers before Harvard Wayne seemed very good lawyer, very prepared. Uh, these are the types of cases where surprises can happen. Um, we just don't know. But that's the nature of the trial system. That's why we meet a trial, not just

an allegation, not just headlines. But we need a trial. So in this case, what is a little unusual is that the prosecution is not going to be calling police to testify. Indeed, it may be that the defense calls police to try to discredit the charges against Weinstein. Is that a good move by the defense to try to turn the police against the prosecution. The best defense in some cases is a good offense, and that's kind of what they've been trying to do in this case, which

is to challenge the investigation, challenge the police. So far the judges shut them down, but I think that they'll continue to try to bring out the problems and the investigation. That was a key strategy. Frankly, in the O. J. Simpson case, even when people thought there was a d n A, they put the L A P. D on trial. So I think it is a defense that can work on the other and I think it's smart by the

prosecutors not to play into that. Say we're not putting our police on We're going to put on the actual victims. We're going to make this jury look these women in the eye and then make their decision. Finally, Laurie, everyone says, well, things have changed so much, But when you look at this trial, and you know, most rape accusations still don't make it to court. Are the legal challenges the same? Do you still have? Uh? He said, she said in the defense saying it was consensual. That is a basic

issue in these cases. Although I always teach my students, he said, she said, doesn't mean you don't have a case. It means that if the jury actually believes her there, it should be a guilty verdict. So what prosecutors have to do is learn that. The reason, he said, she said cases were always so difficult is that people weren't

believing the victims. And to believe the victims, you need corroboration, you need a motive, and you need credible witnesses, all of which I presume they're putting together for this case. Thanks so much, Laurie. That's Laurie Levins and a professor at Loyola Law School. And that's it for this edition of Bloomberg Law. Remember you can listen to all the latest legal topics in the news anytime on our Bloomberg Law Podcast. You can find them on iTunes, SoundCloud, or

at Bloomberg dot com slash podcast Slash Law. I'm June Grosso. Thanks so much for listening, and remember to tune into the Bloomberg Law Show tomorrow night attend p m. Eastern Right here on Bloomberg Radio,