As of last Thursday, under New York State law, the imprisoned rapist Harvey Weinstein serving a 23-year sentence in upstate’s Mohawk Correctional Facility, became a completely innocent man, having his conviction for sex crimes thrown out by the highest court in state, the Court of Appeals. Well, it was sort of the Court of Appeals.
In a plot more convoluted than his hit film “Pulp Fiction,” this rapist foiled justice with a secret, twisted sequence. He must be tried again, as Manhattan District Attorney Alvin Bragg pledges to do. Thankfully, due his conviction in a separate California case, Weinstein will not go free.
The tale begins during Weinstein’s trial before Acting Manhattan state Supreme Court Justice James Burke, when the judge allowed prosecutors under then-DA Cy Vance to introduce testimony from Weinstein’s assaults on three women that were not part of this case, a procedure that is sometimes allowed. Weinstein was then convicted on February 24, 2020 and sentenced to what should have been life for him on March 11.
He appealed his conviction and the Manhattan appellate bench upheld it on a 5-0 decision on June 2, 2022. Weinstein then requested to be heard by the Court of Appeals, which granted permission.
Then it got weird. Before the oral argument was held on Feb. 14, the briefs by Weinstein’s lawyers and Bragg before the high court were all kept secret because of a state law requiring privacy for sex crime victims.
Gannett and the Daily News both asked the court to let them submit briefs making the point that the case’s papers should be made public with appropriate redactions to preserve privacy. While the court accepted the briefs from the press, it ruled against the petitions for openness. Everything stayed secret, including, crazily, the briefs on behalf of openness from Gannett and The News.
The next wild thing was that two of the judges, Shirley Troutman and Caitlin Halligan, both recused themselves. The other five judges should have heard the case, as is allowed under the state Constitution, which sets a quorum at five. Four votes for Weinstein or Bragg would have been needed to make a decision. But under a bad new policy of Chief Judge Rowan Wilson, substitute judges from lower courts are automatically brought in to hear a case whenever there is a recusal, a break with the entirety of the court’s history.
Which judges are brought in? It is not a random selection or a rotation, it is whomever Wilson wants. And presto, the two judges Wilson chose sided with him and one other, giving them a 4 to 3 advantage in favor of Weinstein.
The problem is that two of the four are not real Court of Appeals judges, who had to be screened by the special commission on nomination, then formally tapped by the governor and finally confirmed by the state Senate.
So such a monumental case was left to lower court judges selected by Wilson, giving him the effective power of three votes, when he is supposed to have only one.
We complained mightily about this policy of automatically bringing in substitute judges when Wilson started doing it, but we never thought that the monster Harvey Weinstein would be the beneficiary. For shame.
