Weinstein's acquittal on some charges may hamper appeal of sex crimes conviction

(Reuters) - Harvey Weinstein will seek to overturn his sex crimes conviction by arguing that the jury was prejudiced by testimony from women unconnected to prosecutors’ underlying case, his lawyers have said. But, according to experts, he faces a legal hurdle: his acquittal on some of the most serious charges.

Weinstein, 67, faces up to 29 years in prison for sexually assaulting former production assistant Mimi Haleyi in 2006 and raping Jessica Mann, a former aspiring actress, in 2013.

The former Hollywood producer’s sentencing is scheduled for March 11. After that, he can begin the appeals process, which could run into next year.

Weinstein is “cautiously optimistic” he will be exonerated once the New York state appeals court examines the decision to allow these “prior bad act” witnesses, one of his lawyers, Arthur Aidala, said on Tuesday.

Such witnesses, known in New York state as “Molineaux witnesses” for an 1898 murder, can be used to testify about an uncharged crime committed by the defendant to describe a motive or pattern of behavior.

Molineux witnesses may have played a critical role in Weinstein’s conviction by shoring up a difficult case with testimony from three women alleging attacks by Weinstein, even though the incidents did not result in a criminal charge.

But some experts said Weinstein’s argument that the jury was prejudiced by the Molineux evidence will face a major hurdle: his acquittal of first-degree rape and the most serious charge, predatory sexual assault.

“When you have an acquittal in criminal cases, it always makes the appeal more difficult,” said Michael Bachner, a defense attorney. “It shows the jury evaluated the evidence carefully. It shows they could be fair.”

A lawyer for Weinstein could not be reached for comment on Wednesday.

Prior bad-act witnesses were used to convict comedian Bill Cosby in 2018 of drugging and sexually assaulting Andrea Constand. Pennsylvania prosecutors called five women to testify about similar attacks.

In Weinstein’s case, actress Lauren Young, model Tarale Wulff and costume designer Dawn Dunning testified about what prosecutors claimed was the producer’s signature pattern of behavior: luring women to hotel rooms or his apartment to discuss film roles, then attacking them.

Bennett Gershman, a professor at Pace Law School in New York, said the Molineux testimony in Weinstein’s trial seemed to have been used simply to strengthen the prosecution’s case, rather than for the limited purpose of proving an element of a crime that the prosecution could not otherwise prove.

He called that a “radical extension of Molineux in New York.”

Evidence of uncharged crimes cannot be used to show a defendant is predisposed or has the propensity to commit a crime. Courts make exceptions, including using such evidence to show a defendant’s intent or a signature pattern.