- Harvey Weinstein was found guilty of three out of seven sexual assault charges on Monday.
- The high-profile trial marked a sea change in the way accused rapists are defended.
In 2008, Alan Jackson, then a young Los Angeles prosecutor who was about to send the music-producer legend Phil Spector to prison for murder, told a reporter that he viewed every trial as a storytelling opportunity.
"I try to transport the jury to that dark alley where the murder took place or back into the bedroom where the rape took place," he said. "I try to move them from the courtroom to the darkness of the event."
Now Jackson is a top criminal-defense lawyer who is more likely to guide jurors' imaginations away from those dark places, especially when it comes to clients accused of sex crimes. In 2019, he successfully represented the actor Kevin Spacey in a Massachusetts groping case.
When disgraced Hollywood film magnate Harvey Weinstein faced a second wave of sex crimes charges from four "Jane Doe" accusers in California — a New York court sentenced him to 23 years in 2020 — Jackson teamed up with Weinstein's defense attorney, Mark Werksman.
Weinstein, 70, was found guilty of three of the seven felony counts of sexual assault on Monday. He could be sentenced to up to 18 years in prison. (In the New York case, Weinstein's appeal of his conviction is pending.)
Early in the trial, Weinstein's aggressive defense was cited by some as a return to the "shame-and-blame" strategy that puts the alleged victim on trial. Here, critics of the approach said, Weinstein's lawyers took the "shame" out of their own use of the shame and blame defense.
The defense focused on the absence of forensic evidence of sexual assault and the charging witnesses' occasional memory lapses or contradictions between their trial testimony and prior statements to the police or the grand jury that indicted Weinstein last March.
But in the absence of bellowing at victim witnesses, prying into their sexual histories, or suggesting their attire invited the assaults against them, Werksman and Jackson have introduced a new scapegoat in defending men accused of rape: The pressure to join the #MeToo movement, they argued, compelled women to report Weinstein to the police years after the alleged assaults took place.
While not condoning Hollywood's "casting couch," Werksman proclaimed that "everyone did it" — that is until the #MeToo movement came along and his client suddenly became "Hollywood's Chernobyl," Werksman said during his October 24 opening statement.
The decision not to shame the case's victim witnesses could make this high-profile trial an evolutionary step above that tactic — but in its place could be more efforts to discredit the movement that gave the accusers a voice to begin with.
Closing the 1980s playbook
The accusers in the LA trial represented a spectrum of occupations within the entertainment ecosphere at the time of their alleged assaults.
The model-actress Jane Doe 1 flew from her home in Rome to attend Los Angeles' 2013 Italia Film Festival. She claimed Weinstein barged into her room at the Mr. C Hotel in Beverly Hills, penetrated her with his fingers, forced her to fellate him, and raped her. The jury convicted Weinstein of these charges.
During the same film festival, Jane Doe 2, a model, said she'd been asked to bring a screenplay to the Beverly Hills Montage Hotel for Weinstein to read, only to have him grope her breasts while he masturbated. A mistrial was declared on the Jane Doe 2 counts when the jury could not unanimously agree on Weinstein's guilt.
Jane Doe 3, a massage therapist, accused Weinstein of touching her breasts and masturbating after he hired her for a massage session at his Montage Hotel room in 2010. The jury acquitted Weinstein of her charges.
Jane Doe 4, who has come forward publicly as Jennifer Siebel Newsom, the wife of California Governor Gavin Newsom, alleged that Weinstein forced oral sex on her and raped her in his room at the Beverly Hills Peninsula Hotel in 2005. The trial judge declared a mistrial on the Siebel Newsom counts.
During the trial's opening statements, Werksman hammered Siebel Newsom, saying she'd be another Hollywood "bimbo" had she not reported the incident to police at the height of the #MeToo movement. Werksman's comments were widely reported and quickly condemned. Susan Estrich, a University of Southern California legal scholar and feminist commentator, told The Guardian that the tactic appeared to be "a bit out of the 1980s playbook." Werksman didn't respond to Insider's request for comment.
Estrich's condemnation brought to mind notorious cases like that of Cheryl Araujo, whose 1983 gang rape epitomized the practice of "dirtying up" and intimidating rape accusers. While six men were charged with assaulting Araujo on a pool table in a Massachusetts bar, the 21-year-old single mother became the target of defense attacks portraying her as a welfare cheat and a woman of questionable morals. One of the defense attorneys asked Araujo: "If you're living with a man, what are you doing running around the streets getting raped?"
At times, Weinstein's lawyers in Los Angeles harkened back to that style during their victim cross-examinations, resulting in tears from all four of the charging witnesses.
In one particularly cringey moment, Jackson seemed to mock Jane Doe 2 during his cross-examination.
"I'm just going to take my jacket off," he said while demonstrating how Weinstein might have started to disrobe prior to showering in front of her. "I'm not going to go any further — don't be scared." Jackson declined to speak to Insider as of publication time.
Mostly, though, the LA attorneys combined their combative stance with quieter lines of interrogation that centered on hotel-guest folios, the victims' social-media accounts, cell-phone-tower pings, and DNA examinations of a dress. There was even granular testimony about a false fire alarm at Mr. C to suggest that Jane Doe 1 was not in her room at the time she said Weinstein assaulted her, which made the defense's line of questioning sound more like a murder-trial strategy than a shaming exercise.
The veteran women's-rights attorney Gloria Allred, who represents two of the trial's original five accusers, emphasized that the targets of Werksman and Jackson's argumentative statements and cross-examinations were a tiny demographic — the 12 people who voted on Weinstein's verdict.
"The job of the defense is to plant doubt," Allred told Insider prior to the decision. "The burden of the prosecution is to prove their case beyond a reasonable doubt. So if they are able to persuade even one juror that this is what happened, then from the defense point of view, they've done their job."
The defense didn't imply the accusers were "asking for it," were physically attracted to Weinstein, or were resentful vamps who decided to bring down a great man. Far from being a legal relic, their blended approach at least seemed to give Weinstein a fighting chance.
A strategy emerges
The heart of Weinstein's defense lay with a strategy that was both old-school and very much of the moment.
Werksman and Jackson claimed that the sexual meetings between Weinstein and the women were consensual and transactional. That is, not only were these events not coerced, but they were tacitly agreed to by the women as the cost of professional advancement in the entertainment industry, the attorneys argued.
The defense never directed blame at individual women, instead holding the #MeToo movement responsible for pushing them to report the incidents.
Despite some lapses into eye-rolling or gratuitous snark, Weinstein's lawyers mostly avoided the kind of questioning that had marked the Araujo trial and countless others like it.
When the trial began, Werksman knew the jury would be soon hearing vivid testimony painting Weinstein as an obese predator whose MO was to bring women he'd just met to the bathroom of his hotel suite, where they said he masturbated in front of them — often as a warm-up to more violent treatment.
Werksman also knew jurors would hear descriptions of Weinstein's scarred and discolored abdominal skin, and what Kelly S., a corroborating witness who claimed Weinstein raped her, described as his "mountainous" back acne. The jury also heard descriptions of the producer's testicles, which, as the result of a medical intervention against Fournier's gangrene, had been surgically transplanted from his scrotum to his inner thighs. Even his dark, orange-yellow ejaculate was "not normal," Kelly S. testified, but a kind of Lovecraftian ooze.
With the exception of making a straw woman of the #MeToo movement, some parts of the defense's attack are emerging in other sexual-assault trials. Appeals to "common sense" appeared prominently in Werksman's opening statement and Jackson's closing arguments. The defense attorney Donna Rotunno made similar arguments in Weinstein's New York proceedings.
Such arguments have shown up in some of the year's most high-profile rape trials, including those of the producer Paul Haggis, whom a jury found liable for rape in November, and the actor Danny Masterson, whose trial ended with a hung jury. Now, challenging a victim's recollection of events has become a standard-issue weapon.
Before Weinstein's verdict was announced, Zachary Margulis-Ohnuma, a New York attorney, told Insider that claiming that the sex was consensual was even more important for Weinstein's defense than undermining witness memories.
"Consent is the biggest tool," said Margulis-Ohnuma, who has represented defendants in sexual-assault cases. He added that his argument would be that Weinstein "misused his place but didn't cross the line of actually using force," because he could "suggest to women they would get jobs" and they'd consent.
The past as prologue
A 2008 rape trial that took place in the same courtroom offered a glimpse of an even more promising standard for defense tactics. The up-and-coming fashion designer Anand Jon Alexander was charged and later convicted of multiple counts of sexual assault against young women he lured into his studio using drugs and promises of modeling work.
The Alexander case had many similarities with the Weinstein trial: A cast of photogenic young women with dreams of breaking into a glamorous profession (in their case, modeling), accusations that they had willingly consented to sexual encounters with Alexander in exchange for career advancement, as well as troves of emails, texts, and phone calls showing the women had remained in affectionate contact with their supposed rapist long after they said they had been assaulted.
Alexander assembled a formidable bench of defense attorneys whose measured questioning of his accusers, some of whose stories sounded shaky, set it apart from many sexual-assault trials up to that point. While the lawyers (all men) forcefully pressed the women on their recollection of the assaults and their reasons for remaining in touch with Alexander, they never played a shame-and-blame game.
In the end, though, Alexander was convicted of most of the charges, including one for rape, which earned him a sentence of 59-years-to-life in prison. Nevertheless, the Alexander trial made it a little less acceptable for future defense lawyers to fall back on the old ways.
Apart from some eyebrow-raising moments, Werksman and Jackson also shunned the more traditional, high-volume tactic of attacking the personal integrity of Weinstein's accusers.
The two attorneys likely did not set out to do so, but their layered strategy could move the needle on how the defense should approach sexual-assault trials. Clearing the mud and innuendo from a courtroom may dampen lawyerly theatrics, but it will keep juror focus on the evidence, where it belongs.