Op-ed: Job requirements

Op-ed: Job requirements February 25, 2020

How about that Harvey Weinstein, huh? Found guilty on two counts, in spite of all his lawyers could do to convince the jury his victims were just scheming sluts trying to exploit him for the fame and the sweet sweet cash.

The Guardian’s Ed Pilkington wrote about Weinstein’s high-powered Chicago lawyer Donna Rutunno a couple of weeks ago, and the way she was going about defending her client.

What is so striking about the defense that Rotunno, 44, is spearheading is how conventional, retrograde, it is, almost as though the #MeToo movement [had] never happened.

It was the revelations in October 2017 that Weinstein had spent huge sums to silence several women accusers that sparked the #MeToo movement. Not that you’d know that when Rotunno cross-examines one of the six women testifying that he sexually assaulted them.

Well of course you wouldn’t: as lawyers for the defense would be quick to remind you, it’s not the job of the defense to remind jurors that their clients tried to silence witnesses. That’s how the adversarial system of justice works: each side goes all out to defeat the other, and no tactic is ruled out as long as it’s legal. That’s how it works, and how it works can be horrific. I expect lawyers would tell me the alternatives are worse, but I still reserve the right to object to what we have.

Last week, Rotunno reduced one of the two main accusers in the trial, who alleges she was raped by Weinstein in a New York hotel in 2013, to uncontrollable sobbing during a total of nine hours of relentless grilling over two days. On the first of those days, the presiding judge had to halt proceedings after the witness suffered a panic attack.

Rotunno had been firing questions at her like bullets, ending each query with a shotgun “Correct?” “You were manipulating Mr Weinstein so you’d get invited to fancy parties, correct?” “You wanted to benefit from the power, correct?” “You wanted to use his power, correct?”

Weinstein was found guilty of the 3rd degree rape of Jessica Mann and the sexual assault of Mimi Haleyi, right. Images via YouTube.

The lawyer has to defend her client, that’s the job…but on the other hand if her client is guilty and you are the victim, it seems grotesquely unfair that you should be pelted with insulting accusations in court as the price of reporting your rape.

The lawyer self-identifies as the “ultimate feminist”, but again you wouldn’t know that from her courtroom posture. She has deployed all the old shibboleths that have been used over decades to discredit sex crimes accusers.

The witness was after the money, she was a serial liar, she may not have wanted sex with Weinstein but she did it anyway to get on in the film business – all those arguments and insinuations have been used by Rotunno and her henchmen.

“It’s the nature of the job,” says the lawyer – and the torturer, the quack doctor, the priest, the hedge fund manager, the advertising executive who flogs cigarettes to teenagers, the pimp, the groomer, the guy who parks a lorry full of dead immigrants and flees into the night.

Rotunno, who began as a prosecutor but then switched to defending men accused of sex crimes, has a formidable record. She has represented 40 male defendants in sex crimes trials, and lost only once.

But what works in Chicago may not necessarily go down so well in front of a jury composed of seven male and five female New Yorkers, all of whom have been soaked in the shifting gender dynamics of #MeToo.

“In a place like New York, with more liberal people friendlier to #MeToo, they may not respond well to a woman lawyer attacking another woman witness who is clearly hurting and in pain,” said Michelle Simpson Tuegel, a former criminal defense attorney who now represents victims of sexual assault. “Nine hours, uncontrollable sobbing – it seems like torture.”

And so it proved, though the jury did not convict Weinstein on all the charges.

He did what he could to terrify the women into silence from the outset.

Weinstein was back near the height of his powers when he heard that reporters were snooping around allegations of rape and sexual assault that had long been simmering.

In response he used the full breadth of his connections, money and ruthless self-interest, to try to quash them. He hired lawyers, private investigators and even an intelligence firm founded by ex-Israeli spies called Black Cube, which counter-investigated the reporters who were investigating him.

He also leaned on longstanding relationships at NBC News and tapped relationships at other media outlets, including David Pecker, the now notorious head of the National Enquirer who also kept secrets and killed stories for Donald Trump.

But it was too late. In October 2017 Ronan Farrow at the New Yorker and Jodi Kantor and Megan Twohey at the New York Times wrote explosive articles on the allegations of Weinstein’s abuse, and the stories could no longer be killed.

There is cautious optimism among Weinstein’s casualties.

“The beginning of #justice. More to come, my sisters,” said actor Mira Sorvino, who was one of dozens of women to accuse Weinstein of sexual misconduct. Sorvino believed for years she was blacklisted by Weinstein after she rejected his advances in his 1990s, which the Lord of the Rings director Peter Jackson confirmed in an interview after the reports on Weinstein’s abuse by the New York Times and the New Yorker in October 2017.

It’s a job, people. Lawyers defend their clients by any means necessary, and producers punish women who say no by systematically not hiring them. A job is a job is a job.

“Gratitude to the brave women who’ve testified and to the jury for seeing through the dirty tactics of the defense,” tweeted actor Rosanna Arquette, one of the first and most prominent actors to go on the record with her story of sexual assault by Weinstein, in a hotel room in the early 1990s. “We will change the laws in the future so that rape victims are heard and not discredited and so that it’s easier for people to report their rapes.”

Don’t hold your breath though.

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  • Jim Jones

    I didn’t follow this trial (or these trials?) in detail but I can see problems for the convictions based on the process. He was tried for two different crimes against two different women at the same time and then they brought on other accusers? This doesn’t seem remotely kosher. Even if he had previous convictions, those aren’t considered to be evidence and can only be referred to during sentencing. In a normal trial.


  • Raging Bee

    What’s so “un-kosher” about any of that? Lots of people get charged and tried for two or more more offenses at once.

  • Jim Jones

    No, not like this.

  • amused

    Perfectly normal. Evidence that the defendant used the same method of operation in repeated instances is admissible, not as evidence of guilt, per se, but to show the pattern of behavior. See Federal Rules of Evidence Rule 413. Evidence of each offense would have been admissible as pattern or MO evidence in the trial of the other offense(s). Judicial economy thus is better served by presenting such evidence once in a common trial than presenting it multiple times in separate trials.

  • NathairNimheil

    He was charged with predatory sexual assault; that he has committed sexual assault against “one or more additional persons” in addition to the specific victim, that this is a pattern of behaviour. How exactly are you going to show that without bringing up the sexual assaults on those other persons?

    Your IANAL caveat is prominently missing here.

  • Jim Jones

    The whole thing looks shaky to me. It’s like the Cosby trial where they had one additional accuser, then when that jury failed to convict they added more. And the argument is that had that jury deadlocked they would have had even more accusers.

  • Jim Jones

    And now you have trial by unpopularity.

    But in reality, he was tried in the media, not in the courts, and the media is far more powerful.

  • NathairNimheil

    “But in reality my opinion, he was tried…” fify

  • persephone

    Rotunno stated that she had never been assaulted9 because she would never put herself in a position for that to happen.

    Having been assaulted9 at home, at work, shopping, as a toddler, I’m going to say that there is no safe space.

  • Jim Jones

    I find the whole thing borderline fraud. Not that he wasn’t/isn’t a piece of scum. But trial by unpopularity is a dangerous path to go down.

    It leads the police and prosecutors to start cheating to get the ‘right’ result.

    Courtroom stunner: Man declared innocent of 1985 murder

    DA Pierson on Thursday characterized the cold case investigators’ tactics as having been highly questionable in exacting a confession from Davis’ ex-girlfriend Connie Dahl, a matter he listed as part of the reason for seeking dismissal of the charges and vacating of the upcoming trial. Pierson said the detectives sent to interview Dahl, who eventually testified against Davis, essentially browbeat her into confessing to helping her then-boyfriend to murder Jane Anker Hylton and into implicating Davis as the instigator of the violence at the home on Stanford Lane in El Dorado Hills.

  • barriejohn

    In my opinion as well. He may have been as guilty as hell, but he was found guilty by the media ages ago, and the same has happened in countless cases down the years. They have little interest in truth or justice.

  • NathairNimheil

    I’m confused about your point. Other than nebulous fears of a slippery slope, what is your actual objection? Did the police cheat somehow? Did the jury ignore the evidence and convict on the popularity of the accused? If you’re concerned about American jurisprudence in general (and who could blame you) that’s one thing but where exactly is the “borderline fraud” in this specific trial?

  • NathairNimheil

    So you think he’s innocent and was unjustly convicted? ‘Cause it sure looks to me like truth and some form of justice is exactly what happened here. Win, no?

  • barriejohn

    Is that what I said? I was commenting on trial by media, which has in many cases made a fair trial impossible, and has even, on occasions, led to the acquittal of the guilty. Do you think the mainstream media are interested in truth and justice, or might they perhaps have other motives?

  • Jim Jones

    There’s a lot about this that troubles me. I compare it to the two cases of Leandro Andrade. These were practically identical, except there were two different K-Marts (both in California), different employees obviously and the items he stole were different (although all of them were Disney movies).

    And yet he got two completely separate trials with no reference to the other offense or his criminal history, and no attempt to bring in ‘witnesses’ from other offenses, even though those were already proven in other trials.

    Which is as it should be. But now, if you can’t get a conviction by following the rules you just ignore the rules? Where are the limits now?

  • Broga

    Bit of a reality check for Weinstein. From what in the West is regarded as the ultimate luxury to a prison cell. Lots of examples in the UK where the great and the good e.g. the late and unlamented paedophile Sir Cyril Smith – never face a court.

  • NathairNimheil

    But the media has always sensationalized crime and trials! In fact, they used to be far more sensational than they are now. I have no doubt that the influence of prejudiced popular opinion on jurists was a concern in ancient Athens. So why is this particular trial generating so much pearl clutching? From where I sit it looks like this trial went off properly and the result was both reasonable and appropriate. There was no “trial by media” just a trial and the media.

  • NathairNimheil

    But now, if you can’t get a conviction by following the rules you just ignore the rules?

    Here’s the actual rule in question [FRE413(a)]:

    In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

    That’s pretty clear, no?

  • Jim Jones

    So they codified this into what?The law?

    But in a case where a business defrauded 530 homeowners, this rule doesn’t apply?

  • Connie Beane

    I found the comments on this thread far more interesting than the article. It seems that there are some men out there who feel that the standards for conviction on rape charges should be so high that the only evidence that would be deemed sufficient would be a professionally produced video of the act plus a detailed, sobbing confession on the stand from the accused. Oh, and the victim would have to provide irrefutable evidence that she had never so much as talked to, seen, or heard of the perpetrator or any other male over the age of six.

    Women fear real rape. Men fear false rape accusations. One is much more likely than the other.

  • NathairNimheil

    FRE413 is specific to sexual assault cases. 414 is the same rule but for child molestation cases. However, Rule 404b(2) specifically allows evidence of a crime, wrong or other act in any case if it is presented in order to demonstrate such things as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident” but it is not is not “admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

    The law recognises that some people are habitual predators and need to be treated as such. If we start running into a whole subculture of compulsive serial corporate homeowner defrauders then maybe we’ll establish specific rules of evidence to address them like we have done with sexual predators.

  • barriejohn

    So you can tell the gender of commenters from their usernames and/or avatars, can you? I wouldn’t be so hasty! It so happens that I am male, but also gay, so I have little fear of false rape accusations. I just don’t like the idea of someone being found guilty before the evidence has been properly presented and a fair trial conducted. That’s not to say that this jury were improperly influenced, or that they made the wrong decision; it’s just that the whole media circus seems prejudicial to that.

  • Jim Jones

    Seems to me that this is what gave the US the Salem witch trials.

  • NathairNimheil

    Yeah, slippery slope, I got it.

  • Jim Jones

    Good. Because 6 (or more) poor witnesses don’t make one good one.