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Brian: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. I will admit that I was surprised by the story that we're about to talk about. I thought Harvey Weinstein's legal fate had already been signed and sealed some time ago, but yesterday, former Hollywood producer Harvey Weinstein was found guilty of rape by a Los Angeles jury. The disgrace mogul's consistent, inappropriate workplace behavior, as you know sparked the Me Too Movement back in 2017, emboldening people to speak out against powerful sexual abusers in the entertainment industry and beyond.

Now, while the LA jury found Weinstein guilty of rape, the results of the trial overall were a mixed bag. Nevertheless, legal experts are hopeful that the case in California can influence changes that would level the playing field for victims of sex crimes here in New York as well as elsewhere, and that this has importance beyond Harvey Weinstein's suffering the consequences of his actions. With us now is one of those legal experts, Jane Manning, director of the Women's Equal Justice Project and former Sex Crimes Prosecutor.

She has co-authored an opinion piece uploaded yesterday on the New York Times site. Maybe you've seen it titled Weinstein's Prosecutors Brought His Past into the Courtroom Good. Jane, thanks for coming on today. Welcome back to WNYC.

Jane: Thank you so much, Brian.

Brian: Remind us of where Harvey Weinstein was legally before this trial. Had he been convicted of other things that he became infamous for?

Jane: Yes, absolutely. He had already been convicted of very serious charges of rape and criminal sexual act, is what it's called in New York State against two women and he'd been sentenced to 23 years and he has 21 years left on that sentence. He has appealed that conviction. His appeal was denied by the intermediate appellate court in New York State, but New York state's highest court, the New York State Court of Appeals granted him permission to appeal to them, and that appeal is pending. Harvey Weinstein's story is not finished in New York State either.

Brian: Who were the women who brought this case against Weinstein to court in California, and what were they accusing him of?

Jane: There were four women who were complaining witnesses in Harvey Weinstein's trial in California. The first who was only known as Jane Doe number one was an Italian actress who testified that Harvey Weinstein forced his way into a hotel room in 2013 and raped and sexually assaulted her. She was the survivor whose testimony led to a conviction of rape and other sexual assault charges.

The second survivor in California was Lauren Young, who also testified against Harvey Weinstein as a prior bad act witness in New York State but her case actually went to trial in California, and she testified about a sexual assault. Her case resulted in a hung jury. The third woman who testified was a massage therapist who testified about being sexually abused groped by Weinstein. Her charges led to a not-guilty verdict on the felony, but the jury was hung on the misdemeanor.

That doesn't mean they didn't believe her. It may have just meant that they didn't accept that the conduct met the definition of the felony crime that he was charged with against her. The fourth survivor was, of course, Jennifer Siebel Newsom who is the first lady of California and a documentary filmmaker. Her charges also resulted in a hung verdict. I do want to say just quickly about the three survivors who ended up with hung jury verdicts at the end of this trial and that is this.

For one of those survivors, the jury count was apparently eight to four, for another the jury count was 10 to 2, both of them for conviction. I just want to say that if you had those kinds of numbers in an election and not a trial, it would be considered a landslide. Both of those women were believed to be credible beyond a reasonable doubt by a majority of the jurors and I think that is important to remember.

Brian: To the people listening now who may have perked up at that brief reference that you made to the first lady of California, may not have known that before. The wife of governor Gavin Newsom was one of the accusers of Harvey Weinstein.

Jane: Yes, that's exactly right. She was one of the four women who testified-- well, more than four women testified, but she was one of the four women who testified as complaining witnesses in the California trial.

Brian: What did she allege Harvey Weinstein's interaction with her was?

Jane: She alleged that Harvey Weinstein raped her early on in her career when she was an aspiring actress. She alleged that he set up a situation much like what other women have described, agreed to meet with her, invited her to meet with him for a job offer, and once she was isolated with him he physically attacked her and physically forced himself on her raped and sexually assaulted her.

When Jennifer Siebel Newsom testified in this trial, I think she was very clear-eyed about what she was going into. I think that she knew that she had nothing to gain by testifying in this trial. She doesn't need fame, she already has that. She doesn't need money. She already has that. She doesn't need career success. She already is a renowned documentary filmmaker. She had very little to gain and a lot to lose by coming forward and being part of this trial.

I think it speaks volumes to her courage, and frankly to the believability of her allegations that she subjected herself to the kind of public scrutiny and the abusive cross-examination that she experienced during the trial.

Brian: Listeners, any reaction from you two or questions about the latest Harvey Weinstein verdicts, these coming from California 212-433 WNYC 212-433-9692, about the case itself or the largest social impact of it, or social context of it? 212-433 WNYC, or a tweet at Brian Lehrer for Jane Manning, director of the Women's Equal Justice Project and a former sex crimes prosecutor who has co-authored an opinion piece in the New York Times titled Weinstein's Prosecutors Brought His Past into the Courtroom Good.

We'll talk about that angle in a minute. Bringing his past into the courtroom something that I think you generally don't want to see happen to accusers in cases like this, but we'll get to that. What do you think is the social context of this? I'm sure the overwhelming majority of people listening right now are thinking, "Okay, Harvey Weinstein convicted of rape again. Good, but that's just about Harvey Weinstein." Some people point to the results of the Amber Heard and Johnny Depp trial and say, the me too moment has ended. Does that belong in the same conversation as this?

Jane: I think that there's a limit to what anyone high-profile case can tell us about the justice system because the dynamics of a high-profile case are different in some important ways from ordinary day-to-day cases but I think they can tell us something. I think that the split verdict that we see in the Harvey Weinstein case in California is a pretty good metaphor for the place where our criminal justice system is right now. In the sense that a survivor's ability to pursue justice in a criminal trial has come a long way in recent decades, but it still has a long way to go.

That's what when I say the split verdict is a pretty good metaphor for that. Many years ago, if a survivor testified, really only, let's say five decades ago, if a survivor tried to pursue her rapist in a criminal trial, there was a legal requirement that she fight back or it wasn't considered rape. There were impossible corroboration requirements that apply just to rape cases and no other cases. There was no rape shield law. All of those things have changed and they changed because activists and survivors worked hard to change them. That's real and tremendous progress, but we still have a lot of progress that we still need. For example, the abuse of treatment that defense attorneys were allowed to inflict on the victims in this case, calling them names and asking really demeaning questions in cross-examination, that's still pretty widely accepted as part of our legal culture and I think that needs to change. It's also true that police and prosecutors are just failing to bring charges in too many cases, even ones they're very meritorious. Third, there are still some changes in the laws of evidence that could make the field a little bit less tilted against survivors.

The system is changeable and the evidence of that is that it already has changed a lot. Thanks to people who worked very hard, but we have more hard work to do.

Brian: What did you mean by asking the accusers demeaning questions in court?

Jane: Just one example. The defense attorney asked Ms. Newsom to recreate the noises that she made when she was being sexually assaulted. God bless her, she pushed right back and said, "I'm not doing that," but all of the survivors commented on how the cross-examination went beyond the appropriate necessity of vigorous questioning and into really demeaning treatment.

Even the survivor who got a conviction at the end of the trial said the defense attorney put me through hell. I think that the judge could have done more to reign in this questioning. I don't really blame this individual judge.

I think she tried to preside over a fair trial, but it's widely accepted in courtrooms that defense attorneys will engage in really trying to dehumanize the witnesses who test testify for the prosecution and I think more can be done to limit that.

Brian: On how the prosecution question Weinstein, it goes to the title of your op-ed Weinstein's prosecutors brought his past into the courtroom good. What do you mean?

Jane: Just to be clear, the prosecutors never actually had the chance to question Weinstein because he never took the witness stand. He never testified, but it does go to how the prosecution proved their case. In both New York State and California, the prosecution sought to introduce testimony, not just from the women whose allegations were on trial, but from other women who came forward and said, "Harvey Weinstein also sexually assaulted me."

Some of those women's cases couldn't be prosecuted because they were barred by the statute of limitations, for other women their cases may have occurred out of state from the place where the trial was. The prosecution sought to have other women come in and say, these women who are testifying to you in this trial aren't alone. It happened to me too, the courtroom embodiment in the me-too concept.

Brian: Bringing his past into the courtroom meant past convictions, but also more than that?

Jane: It didn't just mean past convictions, it meant women whose cases had never gone to trial. They didn't have a conviction, but they were willing to come into court and take an oath and testify under penalty of perjury and subject themselves to direct and cross-examination to talk about the details of what happened to them. They were not necessarily convict, they were not convictions, they were women willing to testify under oath about what they experienced from Harvey Weinstein.

The point of the Op-ed is that New York and California have very different rules of evidence when it comes to this testimony. In California, the law is pretty widely permissive to allowing this kind of evidence in the courtroom.

If prosecutors learn that an offender has multiple complaining witnesses coming forward to say, he did this to me, that prosecutor can call multiple witnesses at trial, even the ones who don't have any charges pending in their cases.

In New York, the law is very different. In New York, this evidence, which is called [unintelligible 00:14:39] evidence in New York, is almost never admitted. The Harvey Weinstein case doesn't really illustrate that because in New York, the trial judge made use of a very, very narrow exception to allow this evidence in. In New York, there were three victims whose cases were relevant to the charges and then there were another three women who didn't have any charge counts against Harvey Weinstein, but they were allowed to testify as these similar crimes, similar bad act witnesses. That's very unusual in New York and the narrow exception that the trial judge used in New York state almost never applies.

The day-to-day norm in New York State is exemplified by a different case called People versus Vargas, in which the defendant had seven prior sex crime convictions and the court ruled that the jury was not allowed to know about any of them. What we argue in the op-ed piece, my co-author, [unintelligible 00:15:42] and I argue in the Op-ed piece, is that the California law really is the better way to go. Sex crime trials are--

Brian: I was just going to ask what do you say to those who fear that prosecutors using testimony outside of a case could impinge on the rights of a defendant. I think the progressive position in almost any other kind of trial was, please don't bring things not relevant to the case from outside into the courtroom about the defendant because that will just bias jurors against him and it's not relevant.

Jane: A couple of things about that. First off, I think that both in New York and the California trials illustrate very vividly that jurors don't run away with their biases just because they've heard from multiple complaining witnesses in a trial. In the New York case, the jury heard from multiple women, and yet they deliberated for days.

They issued a verdict in which they acquitted him on some counts and they convicted him on some counts. They asked for testimony to be read back.

They clearly worked hard to come to a verdict that they thought was fair with respect to each count. Same kind of thing now we see has happened in California. The jury didn't run away with prejudice against Harvey Weinstein just because they heard from multiple women. They deliberated for over nine days. They asked for testimony to be read back and asked to be instructed on the law. They sounded--

Brian: Nine days?

Jane: Guilty. They found them guilty on some counts, not guilty on other counts. Both of these juries show that jurors really work hard and they really try to be fair to a defendant and they take very seriously their mission that we entrust them with to look at each and every count and hold the prosecution to its high burden of proof beyond a reasonable doubt with respect to every single count. I think this case is a great illustration of why we can trust juries to hear from multiple witnesses without being overwhelmed by prejudice.

Brian: Do you think that standard should apply to other kinds of defendants as well, charged with things that are not sex crimes, and should it apply to the accusers as well? If they want to bring in whatever past behaviors, the defense would argue might indicate that they had likelihood of having consensual sex with the accused, for example.

Jane: To that last point when an accuser, a complaining witness testifies, it is permissible to cross-examine that complaining witness if the witness has a criminal record that is relevant to that person's credibility as a witness. If a victim takes the witness stand and she has convictions for shoplifting or for any other type of misdemeanor or felony crime, she can be cross-examined about those things just the way any witness can be cross-examined about their criminal record because it bears on the person's respect for the law and the jury can consider whether it does or doesn't bear on their credibility as a witness.

That's what the law currently says. In terms of going beyond that to the witness's personal intimate life, the law in every state rightly says that that kind of evidence is completely off-limits. It used to be the case many decades ago that if a victim took the witness stand, the defense could cross-examine her about her private sex life and the overwhelming understanding that all 50 states eventually reached, you see that that kind of evidence is completely irrelevant. People are allowed to have consensual sex lives. It doesn't have any bearing on whether they should or should not be believed as a witness in a sexual assault trial.

Brian: We have two callers who are bringing up Harvey Weinstein's mental state. Before we run out of time, let me take one of those two callers: Jennifer in East Harlem. You are on WNYC. Hi Jennifer.

Jennifer: Good morning. Thanks so much for taking my call. I wanted to just respond to various things that are being addressed. First of all, I think it's generally understood and I think this trial reflected that fact again, that when women come forward with allegations like this, particularly against powerful men, they are the ones on trial, not the man. I did find this very disturbing again in this trial, even if he did face conviction.

The other point I did want to make is when you are looking at behavior that is this aberrant and obviously crimes of this level, why are mental health professionals not brought in to make assessment because you're talking about behavior that is one facet of a very very disordered personality and Weinstein's personality, which includes very domineering and bullying behavior in many areas of his life, reflects psychopathy.

I think that unless we address that, we are not giving the public an opportunity to understand how these crimes occur and how formally perceived pillars of society fall from grace in this way. I'll take your comments off the air. Thank you so much.

Brian: Much. Thank you very much. Jane, interesting questions including, I guess, where's the line or where should it be between toxic masculinity and mental illness?

Jane: Yes. Two really interesting questions. To the first question about women being put on trial, I agree with the caller completely. It is still the case that the scrutiny of the victim in a sex crime trial goes way beyond the scrutiny of the victim in other kinds of trials. That's true even before the victim walks into the courtroom by the way. Look at the kind of attacks that were made on the victims in this trial. They weren't just called liars, they were called bimbos, and they were accused of sleeping their way to the top. These incredibly gendered and sexist stereotypes that the defense attorney appealed to try to discredit the victims and that's a level of scrutiny that is not imposed on victims in other kinds of crimes.

It is appropriate that someone who testifies in a criminal trial be subjected to fair and vigorous cross-examination of their story, and it's appropriate that their credibility be assessed by the jury but when the caller talks about women being put on trial, she's absolutely right. There's an extra burden on victims and sex crime cases. Again, better than it once was, we're not standing still. We've made progress but we have more to go.

In terms of the mental health question, the defendant's mental health only becomes an issue in the trial if he and his defense team choose to make it an issue by asserting an insanity defense or by claiming that he's not fit to stand trial and those things weren't put at issue in this trial, but I do think the caller's observation that we need to attack the root causes of this kind of violence is spot on.

Brian: Jane Manning, who is director of the Women's Equal Justice Project, a former sex crimes prosecutor, and now the co-author of an op-ed in the New York Times called Weinstein's Prosecutors Brought His Past into the Courtroom, Good. I'm glad you got this piece placed so quickly after the verdict and came on with us right away on the next morning. Thank you so much, Jane.

Jane: Thank you, Brian.

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