The Feds love conspiracies. A conspiracy is when three or more people get together to share an impure thought, and one person takes steps to bring it to fruition. Defense attorneys face the challenge of trying to prove that all of the government’s witnesses are liars. Burning a witness is possible when there are only one or two witnesses, but when the numbers climb into the double digits the chances of the defense, prevailing declines. As one defense attorney put it when ten witnesses get up and say my client is a shithead the jury is likely to conclude they can’t all be wrong.
As the saga of Harvey Weinstein plays out two things occur to me, Harvey is a shithead. He is in all likelihood a serial rapist and may even be a psychopath. He probably never will be convicted of any meaningful criminal charges. Harvey-Weinstein-jail-Hollywood-prison-sentence-trial-charge/
Weinstein will lose in the court of public opinion and prevail in almost any U.S. Court. It is not law enforcement’s fault, and it won’t be the court’s fault. For there to be a successful prosecution, there must be evidence and proof beyond a reasonable doubt. I don’t see that happening. Most of the assaults were one on one. There is no physical evidence. There was no outcry, at the time of the incident. Gossip indicates that it was common knowledge that Weinstein was a pig and would sexually harass and or assault attractive younger women given any opportunity. They still went and allowed themselves or placed themselves in a position of danger.
The gatekeeper to determine to prosecute or not is the District Attorney. I have said it before, but it bears saying again; there is a perception that the police, district attorney, court and corrections are these monoliths that march lockstep through the halls of justice. This is just not true. Each organization has its measure of success, and they don’t necessarily compliment each other.
The police measure success by developing “probable cause” to arrest the perpetrator so that he/she can be prosecuted. The district attorney measures success by the number of prosecutions that result in a conviction. Ask any deputy district attorney who has done an intake (initial case review, before charges filed) what is going through their mind. If they are honest, it will be some variation on the theme, “How can I make this case go away?”
The most convenient way to dispose of a case is to determine that (1) insufficient probable cause or (2) insufficient mens rea (Intent to commit the crime). Here are some examples where the DA’s office concluded they were unable to prosecute Harvey Weinstein. This, from the Manhatten District Attorney the best in the United States. Don’t believe me ask them, they’ll tell you.
Harvey Weinstein offered a strange legal defense for one of his assaults — he says he had a professional obligation to touch a woman’s breasts, to ascertain if they were real.
True story: Harvey Weinstein had a professional need to touch his victim’s breasts, his lawyers told @ManhattanDA. https://www.nytimes.com/2017/10/15/nyregion/harvey-weinstein-new-york-sex-assault-investigation.html …
This was his defense in the case of the Italian model/actress he groped in New York City, the case where the Manhattan DA decided it didn’t have enough evidence to prosecute, despite the SVU and the victim getting Weinstein to admit on tape that he’d grabbed her breasts.
See… they presented an “intent” defense — he didn’t have the intent necessary to the crime because he’s just a professional with a keen attention to detail.
And the Manhattan DA bought this. Or claimed, it bought this.
James Comey would be proud.
The scenario these women found themselves in is like the script of a bad porno movie. Powerful Hollywood Mogul, young, inexperienced starlet, model unused to the big city ways, falls for the evil Mogul’s line. She accompanies him to his office, motel room, screening room to see his work. Instead, he drops his pants, and she hangs around to see what happens next. It’s a tired truth but most women can outrun a guy with pants down around his ankles and his dick flopping in the wind.
Monica Lewinski was a willing participant during her sessions with BlowJob Bill Clinton, the Serial Rapist. Even so, she had enough sense to keep a memento of their time together. The black dress took things to another level. Clinton may be a lot of things, but one thing he is not is a licensed attorney. He was disbarred in Arkansas and is not licensed to practice law, because of the black dress.
It is tempting to conclude that with all these women making an outcry; Weinstein and others of his persuasion ought to be guilty. Outcries are not evidence, sufficient unto itself to sustain a conviction. It really doesn’t matter how compelling the story is, without secondary evidence tending to support the outcry, all the prosecution has is a good story.
Remember the Salem Witch trials and McMartin Preschool Trial in Los Angeles.