Harvey Weinstein filed an appeal on Monday of his conviction on counts of sexual assault and rape, arguing that the judge made numerous errors that resulted in a rigged trial.
Weinstein’s attorney, Barry Kamins, argued that the judge should have excluded Juror 11, saying she could not have been impartial because she had written a novel that involved sexual exploitation by predatory older men. Kamins also argued that Justice James Burke improperly excluded testimony that could have been helpful to Weinstein.
He also challenged Burke’s decision to allow three women to testify about uncharged sexual assaults involving Weinstein. Such “prior bad acts” witnesses — or “Molineux witnesses” in New York — are also at the heart of comedian Bill Cosby’s appeal of his sexual assault conviction in Pennsylvania.
Weinstein, 69, was convicted in February 2020 of two counts: third-degree rape and first-degree sexual assault. The jurors acquitted him on two more serious charges of “predatory sexual assault,” which alleged that he had also raped actress Annabella Sciorra in the early 1990s.
Weinstein is serving a 23-year sentence in a state prison near Buffalo, N.Y. If his conviction is not overturned, the earliest he could be paroled would be November 2039.
Weinstein’s attorneys filed a notice of appeal on April 2, 2020, but waited a year to file the full brief to the Appellate Division, First Department.
However, Kamins laid out much of his argument in a motion last October that sought to have Weinstein released on bail for the duration of the appeal. The motion was denied.
In that motion, Kamins argued that Juror 11 was dishonest when she answered questions about the novel during jury selection. Kamins also contended that the juror “effectively became the People’s stealth expert on the jury, an uncross-examined font of information about how women behave after being sexually abused by older men.”
In the appeal, Kamins argued that the juror’s “fixation” with issues of consent raised the question of whether she had an “agenda” to see Weinstein convicted.
“Allowing Juror No. 11 to participate in the deliberations did not merely obstruct the judicial process, it single-handedly obliterated it,” he wrote.
The juror was seated after the defense had run out of peremptory challenges. Burke denied a motion for a mistrial.
Burke denied several other defense motions during the six-week trial, including a motion to recuse himself from the case. Burke also rejected a defense motion to relocate the trial to Suffolk County or Albany due to pre-trial publicity, refused to allow the defense to call the lead police detective on the case, and refused to let the defense call an expert on recovered memories.
The defense has also argued that one of the crimes should have been excluded due to the statute of limitations.
“We will respond in our brief to the court,” said Danny Frost, a spokesman for the Manhattan District Attorney’s office.
Weinstein is also awaiting extradition to Los Angeles to face an additional 11 counts that carry a potential sentence of 140 years.