After Manhattan District Attorney Alvin Bragg finishes his trial with Donald Trump, he’ll have to turn to Harvey Weinstein.
The disgraced former Hollywood mogul saw his 2020 conviction on sex crimes charges overturned Thursday by New York’s top court in a 4-3 decision that shocked the public.
But Catherine A. Christian, a former prosecutor who spent more than 30 years in the Manhattan DA’s Office, wasn’t surprised.
“A number of us were expecting that it probably would be reversed if there was some sort of intellectual honesty, because you don’t want to make bad law for bad defendants,” Christian told POLITICO Magazine.
The state Court of Appeals determined Weinstein ultimately did not receive a fair trial because it included testimony from witnesses who accused him of sexual abuse and harassment, but were not part of the criminal charges directly at issue.
Weinstein has been serving a 23-year sentence at an upstate New York prison for a conviction that helped fuel the #MeToo movement and a societal reckoning over sexual misconduct. But he’s not about to be set free. Not only did the top New York court order a new trial, but he also faces a 16-year prison sentence after being convicted by a California jury in 2022 of raping a woman at a hotel in Beverly Hills.
The decision by the New York court was decried by victims advocates, who worry it could chill future sexual assault cases. But Christian said the case — which was initially led by Bragg’s predecessor, Cyrus Vance Jr. — can be retried successfully. And she offered some advice on how to do it.
The following interview has been edited for length and clarity.
The court’s decision to overturn Harvey Weinstein’s conviction came as much of a shock to the public. Were you surprised by the ruling?
What I think the four judges said: I know this was a very high-profile case, this may be a despicable man, but the law is the law. And in this case, we have to follow the law, not how we feel about how despicable this particular defendant is.
I’m not surprised. That they did overturn it shows that they just stuck to the facts and the law and not the celebrity, not how they may personally find him offensive. They looked at that transcript, and then just followed what they believe is the right take on the law.
At the time of the original trial, did you think it was a mistake to have other women testify in this case as witnesses to Weinstein’s misconduct but who were otherwise not part of the criminal charges?
The law allows you, if it’s not too prejudicial, in certain instances to bring out prior uncharged crimes if it goes to notice, intent, common plan or scheme. So, there’s a number of exceptions.
It’s a legitimate decision that the prosecutors made. Yes, now that it’s overturned, you know, hindsight is 20/20. And let me say this, I know the two prosecutors who tried it, and they’re excellent. It was still up to the [lower court] judge, the judge could have said no. And the judge said, “You can do this,” and the Court of Appeals said, “Actually, you shouldn’t have.”
I wouldn’t be overly critical of the trial prosecutors. There were a lot of legal minds in the office that went into the prosecution of this case. You always hope that if you get a conviction as a prosecutor, it will stick. But in a case like this, there were strategic decisions that now have turned out, according to the Court of Appeals, to have been a mistake.
The Manhattan District Attorney’s office has already pledged to retry the case. Do you think there was any hesitation there? Are there risks to doing so?
To me, you have to retry assuming all of the witnesses are available. Harvey Weinstein has been convicted in Los Angeles, so he’s not going anywhere.
They’ll retry it and this time, they’ll do it the way the Court of Appeals says it should be done.
The negative now in retrying it means these women have to come back and do it all over again, and be cross-examined all over again. So that’s the negative of a retrial for the prosecution.
How will this shape sexual assault cases going forward? What about the trajectory of the #MeToo movement?
First of all, the Court of Appeals didn’t say he can’t be retried because it’s so clear that he’s factually innocent. That’s not what this decision was. I don’t even want to call it a technicality.
There was evidence that should not have been admitted, or should not have been allowed to be admitted, because it was too prejudicial. That’s really the gist. I don’t think it should be spread to all sexual assault cases. It’s limited to the facts of this specific case, and how this specific case was tried.
It will affect the law, not just on sexual assault cases, but all criminal cases in New York about what a prosecutor is allowed to bring as evidence, of what uncharged crimes, can they put on their direct case, what prior, vicious, immoral criminal acts can they cross examine the defendant about. That’s in all cases.
But I don’t think this is going to affect prosecutors from going after people who are charged with sexual assault if they can prove it beyond a reasonable doubt. I don’t think, and I’m hoping, it won’t deter victims from reporting it, particularly against high-profile men, because this case happened to be reversed.
Bill Cosby’s case at the Pennsylvania Supreme Court — he had his conviction reversed because of an error made by the prosecutor. It wasn’t like saying either of these men didn’t do it. That’s usually not what the appeals courts do. They just determine whether or not what was done at the trial was legally correct.
DA Alvin Bragg is currently focused on the Trump trial in Manhattan. Could that have any impact on a new Weinstein trial? If not legally, then politically?
No, because remember the Manhattan DA’s office is huge. The Trump trial is being tried by the investigations division.
The Harvey Weinstein case will be done by the Special Victims division, it’ll be their sex crimes division. It’s very, very different. Different set of assistants, whole different thing. I always say about this Trump trial, there are assistants in that office who have their own trials that have nothing to do with this Trump trial.
They probably were anticipating the decision, and it could have gone either way. They probably prepared themselves — suppose the conviction is overturned, what will our response be? I don’t think it was shocking to them.