Weinstein Redux

A very thoughtful article here, from a periodical that no doubt would like to see a conviction but acknowledges that it’s a “weak case”.

We here at LoS?  Not so sure.  We like this quote from The Nation article:

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.

That’s insightful. The outcome of a criminal trial is guilty or not guilty. This leaves little room for nuance. In theory, at least, a lot of nuance should result in “not guilty”. But the practice is different.

Weinstein didn’t testify. That’s not supposed to count against him, but it does. Reliable accounts indicate his lawyer argued well on his behalf, but there’s just something about a defendant not testifying that leads many jurors – probably a majority – to incline towards a conviction.

One interesting thing about this trial, at least to us: it’s revealing about the prosecutor mindset.  As we have pointed out before on numerous occasions, prosecutors are normally very comfortable with witness credibility contests at a trial, because their witnesses – very often cops – overwhelmingly win such contests.  The question the prosecutors ask themselves about their case is whether their witness will “hold up” under cross-examination before the jury. They tend to under-appreciate the significance of documentary proof, and specifically contemporaneous records that undermine their witness’ testimony.

Here, the defense had some pretty devastating documentary proof in the form of contemporaneously generated records, often by the witnesses themselves, strongly suggesting that at the time the complained about events occurred the witnesses did not regard themselves as having been raped or assaulted.  So the argument the prosecution has to make from there is that the truth is being told on the witness stand, not in the contemporaneously generated records.

That’s a tough sell, and it should be. But the prosecution might sell it.

If the shoe’s on the other foot, and the defense has to make that argument? There is no possibility whatever that it could be sold.

The prosecution is apparently going out on this limb because #MeToo is just a slogan unless there’s a scalp at some point.  Another disturbing thing is that there are a lot of problems with the proof here, but Harvey Weinstein is an unappealing defendant – as in physically unappealing – and that has been made a factor in the trial.

We object to that as a tactic, both because it’s unfair and because there’s at least some chance it will work: pretty defendants are more often acquitted and ugly defendants are more often convicted.

Likely there will be a verdict by close of business today, or a communication to the court that the jury is hung. It’s Friday, after all.