Harvey Weinstein and the Limits of Prior Bad Acts

Harvey Weinstein’s convictions for sex offenses in New York were overturned today by the New York Court of Appeals. He has not been acquitted, the appellate court ruled that he is entitled to a new trial. He is not likely to get out pending the new trial, as his convictions in California still stand, and he has been sentenced to 16 years for those offenses. This is in no way an exoneration.

This is a rebuke of the prosecution, and of the trial court who erred in allowing into evidence prior bad acts allegations (a.k.a. similar fact evidence) introduced by the state. In this case, the prior acts were also sexual acts, but against different people, and none of them had ever been charged, much less proven, against Weinstein. It is much easier to convict someone if you can tell the jury they are a serial offender than to prove a case standing alone. The evidence is not supposed to be admissible to show the propensity to commit a crime, but the impact on the jury can be overwhelming. The theory is that prior bad acts are admissible for other reasons; be it motive, opportunity, etc. The reality is that suggestion of propensity and is likely to overwhelm the presumption of innocence. It’s the worst kind of character evidence, and character evidence is generally inadmissible.

The limit of relevant evidence is that the prejudicial value cannot outweigh the probative effect. Obviously the prejudicial effect of evidence of prior acts of criminal conduct is extremely high, and moreso if the prior bad acts are similar in nature to the offense being tried. It should be a rare circumstance that a prior bad act is admissible, particularly if the prior bad act is a criminal offense that was uncharged.

The power of bad acts evidence was apparent in the prosecution of Bill Cosby. In Cosby’s first trial, the judge allowed prior bad act evidence, but only from one prior alleged victim. That case ended in a deadlocked jury and a mistrial. However, when the case was brought back for Cosby’s second trial, the judge allowed the state to introduce testimony from 5 prior accusers, to show a ‘ distinct, signature pattern’ of Cosby’s assaults. Cosby’s was convicted as charged in the second trial, though his conviction was later overturned for other reasons. There is a risk on prior bad acts cases that the jury is convicting someone not based on the alleged conduct, but on the perception of their character. The difference in results in Cosby’s trial demonstrate the reality of that risk.

Harvey Weinstein has not been acquitted. His conviction being thrown out was for evidentiary errors by the trial judge- but the state is entitled to retry him. They will have to do the trial with evidence of the case at hand, and not based on allegations of his prior monstrous behavior. Regardless, he remains in prison, and his monstrosity remains exposed to the world.

Challenges growing to use of Cell Phone location- “Geofencing” Warrants by Law Enforcement

Law enforcement is increasing its use of reverse-location warrants with companies like Google, known as “geofence” warrants. Instead of asking Google, or Verizon, or AT&T for the specific history of a person, these warrants ask for the identifying information of all the people in a certain area. For instance, a bank is robbed, and the authorities file a warrant on Google demanding that all of the Google Maps users with a certain radius of that bank be turned over to authorities. While the perpetrator may be included in that group, it could also potentially include the private data of dozens or even hundreds of innocent people. That’s where the biggest privacy concern arises.

The use of geofence warrants is growing, Google indicated that they were receiving 180 requests per week at the end of last year, and the numbers have been steadily increasing. The cases challenging these searches, generally most will target the lack of specificity and the invasion of privacy, have not yet resulted in many appellate decisions detailing when such warrants may be appropriate. One judge wrote in denying a warrant application, “The potential to use Google’s capabilities to identify a wrongdoer by identifying everyone (or nearly everyone) at the time and place of a crime may be tempting, but if the government can identify that wrongdoer only by sifting through the identities of unknown innocent persons … a federal court in the United States of America should not permit the intrusion.”

There is likely a path to make such reverse-location warrants valid, but it will likely encounter strict scrutiny to ensure limiting the request as narrowly as possible by size, time, and other factors to target the likely offenders, and not invade the privacy of law-abiding citizens. The concerns about unconstitutional intrusions were brought to light when NYC sought geofence data for people protesting and counter-protesting last year in the hunt for data about criminal rioters. The concern here is not only the invasion of privacy, but also the chilling effect on the 1st Amendment rights of lawful protestors. There are a lot of complex issues here, and it will likely be some time for the courts to develop guidance as to when geofence warrants are permissible, and when they are not.

Michael Cohen Recommitted to Federal Custody

Michael Cohen has been returned to prison today. According to reports, he went to sign paperwork converting his furlough to home confinement. According to statements attributed to his lawyer, the paperwork included a prohibition on several first amendment protected activities, such as speaking to media, engagement on social media, and publishing things like books. Cohen had been working on a book about his history with Donald Trump, which dates back years before Trump ran for president.

This is troubling for a couple reasons. First, it appears the prison is arbitrarily adding conditions to his sentence that were not ordered by the court. Second, those conditions seem pointedly targeted to silence him from speaking out, which is normally protected by the first amendment. While he gives up some freedom when convicted and confined or supervised, his first amendment rights do not generally go away. There may be exceptions, such as when his crime directly relates to his speech (such as if someone who had sent a threat might be restrained while on supervision,) but such conditions would not be expected in this case. The unique conditions, sprung on him without notice, suggest ulterior motives.

Harvey Weinstein Convicted of 2 Counts, Remanded to Jail

Harvey Weinstein was led out of the courtroom in handcuffs, after a jury found him guilty of a criminal sexual act in the first degree and rape in the third degree. He faces up to 29 years in prison on both charges. The criminal sexual act carries a minimum sentence of five years. Weinstein avoided conviction on more serious charges for predatory sexual assault, which could have carried a sentence of 10 to life, as well as an additional rape charge. Due to Weinstein’s age, as well as health issues, he could be facing the rest of his life in prison.

Today, the court remanded him to custody pending sentencing. His attorneys objected, due especially to his health concerns, but the judge decided he would be held pending sentencing (which is not unusual when a sentence of several years is expected.) Sentencing is set for March 11, when Weinstein will learn his fate. His attorneys indicate the appellate process is already underway, and they may move for an appellate bond, which may be difficult to get on a sex offense with many years in prison. He also faces additional charges in California.

Film producer Harvey Weinstein is handcuffed after his guilty verdict in his sexual assault trial. Courtroom sketch by Jane Rosenberg pic.twitter.com/ZvX92lzetU

— corinne_perkins (@corinne_perkins) February 24, 2020

 

Pity the Attorney with a Difficult Client

As you may have seen, trial got underway in New York City for producer Harvey Weinstein, charged with several sexual offenses in one of the landmark cases of the #metoo movement. Today, Mr. Weinstein was excoriated by the judge for using his cell phone in court, in spite of the judge’s strict rule against it, and repeated orders not to do so. His poor attorneys end up apologizing to the judge for their client’s behavior, only for the judge to “snarl” at them as well. Apparently, they had made Weinstein turn over his cellphone earlier, but he had multiple additional cell phones and continued to access them in court. He’s literally pulling tricks to confound his own attorneys as they were trying to keep him out of trouble. The judge threatened to revoke his bond for disobeying the order, which he would have been in his power to do.

Weinstein picked a particularly bad day to disobey the judge, because new charges had been filed against him in California, and the prosecution on this case was already arguing to the court for his bond to be revoked. I think the State shot itself in the foot suggesting that they had not been in contact with the Los Angeles prosecution when the indictment was conveniently unveiled to coincide with the start of his New York trial… and that the L.A. prosecutor indicated that they certainly had been in contact with the New York D.A. The defense asked for a continuance and the judge smartly resolved everything to avoid conflict: denying the request for continuance, denying the request to revoke bail on the New York case, and ultimately setting identical bail on the California case so the court can get down to the business of conducting the trial at hand, which is expected to last around two months.

Harvey Weinstein being assisted to court

The challenge for Weinstein’s lawyers, beyond the legal challenge of defending him from the charges, will be to rein in his behavior so he doesn’t end up shooting himself in the foot. He started showing up to court with a walker, and when commentators suggested he was trying to garner sympathy, he had an extensive interview with Page Six without consulting his attorney.  He’s trying to win in the court of public opinion while his attorneys are trying to win in actual court, where the potential penalty is life in prison. He has already gone through multiple prior attorneys, before settling on this team.

The predatory rape charges included in the New York case create a huge challenge for Weinstein’s defense team as they allow the state to introduce evidence of other offenses. This includes offenses that were not charged and that may not have been brought up until after the statute of limitations, and none for which Mr. Weinstein has admitted or been convicted of. He categorically denies all charges, and says that any sexual contact was consensual. However, the State being able to bring in a string of additional accusers presents a damning fact pattern and suggestion of guilt that will be difficult for the defense to overcome, particularly coupled with some potentially humiliating evidence. Compare the case against Bill Cosby, who’s first trial ended in a hung jury. During the second trial, the court permitted evidence from additional accusers and the jury in that case convicted Cosby. On the other hand, the charges only came about after a very public campaign creating political pressure for the prosecutors to bring charges, and one of the lead NYPD investigators was prevented from testifying due to suggestions of witness coaching and withholding evidence. The case will be a hard-fought battle for the next eight weeks. The attorneys have their work cut out for them, but at least they are being well paid.

Jurors can Get in Trouble if they Disobey the Court

I suppose it is inevitable with the expansion of social media and connectivity nowadays: every juror comes into the courtroom with a habit of using their phones, and that can be hard to break. In every trial, the court tells the jurors not to discuss the case with themselves, or others. In a long trial, the court remind the jurors every time they take a break, which can add up to dozens of reminders over the course of a trial. Sometimes, the message still doesn’t sink in.

Just a few weeks ago, the New York Court of Appeals, the highest appellate court in New York,  upheld the overturning of a verdict in a high profile murder case against Dr. Robert Neulander, a prominent doctor in central New York that had been convicted of killing his wife. It wasn’t due to the facts of the case, rather it came out near the end of the trial that one of the jurors had been texting throughout the trial with family and friends, to the tune of some 7000 text messages. The only surprising thing was the the trial court had allowed the verdict to stand. “The extensiveness and egregiousness of the disregard, deception and dissembling occurring here leave no alternative but to reverse,” said the court in a unanimous ruling. The juror had even deleted some texts and browser history when her conduct was disclosed.

The court has no choice but to overturn a verdict in such a case, as the confidence would be eroded in the system if the court allowed jurors to so directly (and flagrantly) violate its instructions. A lawful verdict requires the court to hold jurors to their oaths.

Another case of wild juror misconduct was reported today, also in New York, and again the trial court allowed the initial verdict to stand. One of the jurors started having romantic feelings for one of the State’s witnesses, a gang member who had agreed to testify against the defendant to consideration in his own case. The juror wrote a letter to the witness, and a romance blossomed, in spite of the court’s instruction for the jury to avoid contact with anyone involved in the case. She also wrote the prosecutor to ask the State to take it easy on her beau, and to its credit, the DA’s office notified the Defense. Still, the trial court didn’t see a problem with the juror falling for the State’s witness, and let the verdict stand. The appellate court cited the Neulander case, saying “as the Court of Appeals recently reminded us in People v. Neulander, ‘nothing is more basic to the criminal process than the right of an accused to a trial by an impartial jury.'” Sometimes the opinions write themselves. Apparently the juror and the witness made plans to marry… so, silver lining, I guess?

Lawsuit Claims Apple’s Face-Recognition Software Led to Wrongful Arrest

A New York teenager, Ousmane Bah, was arrested at his home in November and charged with stealing from an Apple store. He didn’t do it, and a photo of the the culprit on the warrant did not look like Bah. He was accused of several thefts from Apple stores, including one from Boston on the same day he was attending his senior prom in New York City. He’s now suing Apple, and his suit alleges that Apple’s facial recognition software mistakenly connected the thief’s face with his, possibly from the thief using his stolen identification.

Bah is suing Apple for a billion dollars, which seems kind of high.

Wrongful Murder Conviction Vacated, thanks to Golf Digest

Valentino Dixon was serving a 39-years-to-life sentence for a 1991 murder he did not commit, in Buffalo, N.Y. It wasn’t until Golf Digest did a profile of him, that his case caught the interest of some people to address the mistakes that led to him being convicted of a crime he did not commit… including an admission from the man who actually shot the victim. The prosecutor even charged two men who corroborated the accusation of the actual story with perjury. The perjury charges prevented those men from testify to the truth in Dixon’s trial. The actual shooter says he was pressured to change his story. While Dixon was facing charges, the other man was out of custody, and has since been incarcerated in the same prison for shooting a different person in the face.

Six years ago, Golf Digest shared the story of Valentino Dixon, an inmate who created beautiful and meticulously detailed golf drawings.

Today, after 27 years in prison and an investigation Golf Digest helped open, he was set free as an innocent man.https://t.co/V4Hw2clyUd pic.twitter.com/4nio6SBF2I

— Golf Digest (@GolfDigest) September 19, 2018

The case came to light when Dixon was profiled in Golf Digest about the golf course drawings he did in prison, as part of a regular column they did called “Golf Saved My Life.” Max Adler, the columnist, was so interested in Dixon’s story, he initiated the investigation that eventually led to Dixon’s acquittal, which still took another six years. Dixon walked out of prison this week a free man. I’d like to take him out for a golf lesson.

It’s a really cool story, and a stark reminder of the importance of journalism in our country. It’s sad it took 27 years, in spite of the witnesses for Dixon. Golf Channel and NBC also picked up the story and provided important momentum to right this wrong:

Today a man was released from prison because – in part – of the work we did. In my life as a sport reporter, I could have never imagined i’d Have a chance to do something so worthy.https://t.co/kBRr0GoIX0

— Jimmy Roberts (@JimmyRobertsNBC) September 19, 2018

 

Donald Trump does not Respect the Judicial System

Donald Trump, currently President of the United States, made comments today that make clear he does not respect our constitutionally based justice system. Discussing the process for prosecuting the New York City terrorist, Trump stated at a cabinet meeting, “We need quick justice and we need strong justice — much quicker and much stronger than we have right now. Because what we have right now is a joke and it’s a laughing stock. And no wonder so much of this stuff takes place.” Fox News, in their online story about the piece, edited the quote to make it sound like he was talking about the immigration system. This quote was not about immigration. This line was about the United States criminal justice system, which Trump has insulted.

This should come as no surprise, as his imperiousness as president has frequently stepped on Constitutional protections. Famously, Trump took out full page ads in NY City papers in 1989 during the prosecution of the “Central Park Five”: 5 young men who were wrongly accused of a brutal beating and rape of a jogger in Central Park. “Muggers and murderers,” he wrote, “should be forced to suffer and, when they kill, they should be executed for their crimes.” “Though he didn’t refer to the teenagers by name, it was clear to anyone in the city that he was referring to them,” said the New York Times. The botched prosecution led to the wrong men being locked up for years, and the actual criminal, serial rapist Matias Reyes, continued to roam the streets attacking women. Even after DNA proved their innocence, and the exonerations are now an exemplar of poor police procedures and wrongful prosecution: a fact the Trump still has not acknowledged. “Quick”, by necessity, has to take a back seat to the more important principle of “justice”.

It’s ironic that he would call the criminal justice system a laughingstock the same week his former campaign chair and other advisers had charges brought against them in Federal court. They are probably happy to be out on bond as their cases are pending, and glad to avail all possible defenses under the Constitution. It’s easy to point at an evil person like the man who drove into a crowd of innocent bikers in New York… but, the Constitution protects us all. The justice system is not one size fits all, and most of the Constitutional protections are to prevent Government overreach, they are to prevent the violations of those rightly and wrongly accused. Our justice system has developed over that last two centuries as a model replicated around the world.

We all want to see justice brought to the New York City terrorist, and all those who would commit crimes against our people. But the system is not a joke. As an attorney, both prosecutor and defense attorney, respect for the Constitution and respect for our individual rights are the starting point for justice, and it is disappointing, albeit not surprising, for Donald Trump to disparage that. This is not a partisan issue… like many Republicans, I believe in our Constitution and our justice system. It’s flawed, and those of us who work in it are always working to better it, but it is not a joke. And I hope that the leaders in this country, on both sides of the aisle, stand up to speak up for it.

-UPDATE-

The White House later tried to walk back Trump’s comments about the justice system. At a briefing later in the day, spokesperson Sarah Sanders denied that Trump said our justice system was a laughingstock, and tried to claim that he was saying the process has people calling us a joke. Video LINK. But that’s not what he said… very clearly he was the one calling it a joke. Here’s his full quote:

“They’ll go through court for years,” he said. “And at the end, they’ll be — who knows what happens. We need quick justice, and we need strong justice, much quicker and much stronger than we have right now. Because what we have right now is a joke, and it’s a laughingstock. And no wonder so much of this stuff takes place.”

The fact that they are trying to reframe the president’s comments shows that they know they are inappropriate. The fact that the White House spokesperson is straight up lying to us about what the president said is embarrassing. I’ll leave it to you to decide who is the joke, here. Sadly, it’s no laughing matter.

Guy Commits Coolest $1.6 Million Armored Car Robbery Ever

 

Ever see the Bill Murray movie Groundhog Day? There’s a scene where Murray’s character, Phil, times the behavior of armored guards to walk up and steal a bag of money when they aren’t looking. Some guy in New York actually pulled that off!

Here’s the scene from Goundhog Day, if you haven’t seen it before. It makes more sense to know that Bill Murray is reliving the same day over and over again, so he knows what’s going to happen…

So, a guy in New York just pulled off that move. He walked up to an unguarded armored truck, snatched a bucket of money, and walked off. The whole thing was caught on camera, and NYPD Crimestoppers are looking for tips if anyone recognized the guy. Here’s the footage of the sneaky thief:

Here’s the amazing thing… this guy didn’t just get a bucket of change. The bucket he swiped was full of gold! The five-gallon pail had 82 pounds of flaked gold, worth $1.6 million dollars. It was so heavy, it took him an hour to walk a few blocks where he got in a van to make his escape. Police pieced all this together by reviewing the surveillance footage in the video, above. They still have not identified him, and are looking for tips.

Screen Capture of the Groundhog-style Thief

I called this a robbery in the title, but it’s really more of a simple grand theft. Robbery typically indicates taking property from a person, but there’s nobody here. It’s like shoplifting, except from an armored car. It’s exactly like the Groundhog Day, theft, so I’m beside myself because it’s one of my favorite movies. But this guy didn’t plan it out… he probably just saw an opportunity, and got really lucky. Winner, winner, chicken dinner and bucket of gold. I think they have an idea who it is, because investigators think the suspect is laying low in Florida. Because of course he is. Just so EPIC.