NEW YORK — A New York appeals court blasted Manhattan prosecutors Wednesday for filling out Harvey Weinstein’s rape trial last year with what one judge deemed “incredibly prejudicial testimony” from women whose allegations weren’t part of the criminal charges against him — a strategy that now has the potential to jeopardize the disgraced movie mogul’s conviction.
Members of a five-judge panel in the state’s intermediate appeals court appeared incensed with Judge James Burke’s decision to allow the witnesses and for another ruling that cleared the way for prosecutors to confront Weinstein with evidence about other misbehavior if he had testified.
Several judges on the panel appeared open to considering reversing Weinstein’s conviction and ordering a new trial. A decision isn’t expected until January.
Judge Sallie Manzanet-Daniels was particularly vocal, saying that prosecutors had piled on with “incredibly prejudicial” testimony from additional witnesses and that socking away details about Weinstein’s behavior — in some cases boorish but not sexual — amounted to overkill.
“Let’s inflame the jury’s heart by telling them that he beat up his brother during a meeting. I just I don’t see how there is a balance there on that,” Manzanet-Daniels said, challenging a lawyer from the Manhattan district attorney’s office who implored the judges to uphold Weinstein’s conviction.
Weinstein was convicted, at age 69, of performing an oral sex act on a TV production assistant and for raping in the 3rd degree on an actress who had just turned 21 in 2012. He was acquitted of first-degree rape and two counts of predatory sexual assault stemming from actor Annabella Sciorra’s allegations of a mid-1990s rape.
It was an important landmark in the #MeToo movement, which was started by women bringing forward allegations against Weinstein. He insists on his innocence and claims that sexual activity occurred in consensual.
Burke, the Manhattan judge who presided over Weinstein’s trial, allowed prosecutors to bolster their case with testimony from three women who alleged Weinstein also violated them but whose claims did not lead to charges in the New York case.
Rules on calling witnesses to testify about so-called “prior bad acts” vary by state and was an issue in Bill Cosby’s successful appeal of his sexual assault conviction in Pennsylvania. New York’s rules, shaped by a landmark decision in a 1901 poisoning case, are among the more restrictive.
Weinstein’s lawyers argued that extra testimony went beyond what’s normally allowed — detailing motive, opportunity, intent or a common scheme or plan — and essentially put the ex-studio boss on trial for crimes he wasn’t charged with and hadn’t had an opportunity to defend himself against.
Burke’s ruling allowing prosecutors to use horror stories from Weinstein’s past to attack his credibility worked to prevent him from taking the witness stand, Weinstein lawyer Barry Kamins told the appellate panel.
“The jury was overwhelmed by such prejudicial, bad evidence,” Kamins argued. “This was a trial of Harvey Weinstein’s character. The people were making him out to be a bad person.”
Kamins also challenged Burke’s refusal to remove a juror who had written a novel involving predatory older men, as well as his decision to allow prosecutors to have an expert on victim behavior and rape myths testify while rejecting testimony on similar subjects from defense experts.
Weinstein, sentenced to 23 years in state prison in New York, did not attend Wednesday’s arguments. Weinstein was expelled to California in January and is currently being held there while he awaits trial for the assault of five women from Los Angeles and Beverly Hills between 2004 and 2013.