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.

Bill Cosby’s Retrial Begins this Week

Famed comedian Bill Cosby goes back on trial this week for charges that he drugged and sexually assaulted a woman several years ago. Since the charges were filed, dozens of other woman have come forward to allege that Cosby had similar conduct with them. The case went to trial 10 months ago, and ended with a hung jury. Even though Cosby’s attorneys managed to avoid a conviction at that trial, Cosby now has a new legal team lead by Tom Mesereau, who has handled such high-profile clients as Michael Jackson.

The trial will be quite different this time, as the new attorneys seem more aggressive, and the evidence has substantially changed. For the first trial, the court allowed one other accuser to testify about her experience with Cosby. This time around, the court has permitted up to five other accusers to testify. Last time around, the attorneys were able to cast enough doubt on the “similar fact evidence” witness that the jurors later said they completely disregarded her. It will be very difficult for them to disregard five, or to demonstrate that they are financially motivated. One of the possible witnesses is model Janice Dickinson, who has sued Cosby for defamation for attacking her claims. It’s unclear why the judge decided that five other people can testify in this trial when they couldn’t in the last one, but it appears to make the situation far more grave for Cosby.

Generally, a retrial favors the prosecution… and probably more so when the judge permits a substantial amount of evidence that was previously excluded. We will find out the final outcome when the trial concludes, probably not for about a month.