New York Supreme Court Appellate Division—First Department

FILED: APPELLATE DIVISION - 1ST DEPT 04/05/2021 12:09 PM 2020/00590 NYSCEF DOC. NO. 8 To be Argued by: RECEIVED NYSCEF: 04/05/2021 BARRY KAMINS (Time Requested: 15 Minutes) New York Supreme Court Appellate Division—First Department Appellate THE PEOPLE OF THE STATE OF NEW YORK, Case No.: 2020-00590 Respondent, – against – HARVEY WEINSTEIN, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT AIDALA, BERTUNA & KAMINS, PC Attorneys for Defendant-Appellant 546 Fifth Avenue, 6th Floor New York, New York 10036 (212) 486-0011 [email protected] New York County Clerk’s Indictment Nos. 2335/18 and 2673/19 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................. vii INTRODUCTION ..................................................................................................... 1 PRELIMINARY STATEMENT ............................................................................... 3 QUESTIONS PRESENTED ...................................................................................... 9 THE EVIDENCE AT TRIAL .................................................................................. 11 The Molineux Evidence ................................................................................. 27 Expert Testimony ........................................................................................... 33 The Sandoval Ruling ..................................................................................... 45 POINT I MR. WEINSTEIN WAS DENIED HIS CONSTITUTIONAL RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY WHEN THE COURT REFUSED TO DISMISS A JUROR FOR CAUSE AFTER HIS PEREMPTORY CHALLENGES WERE EXHAUSTED AND PERMITTED HER TO REMAIN ON THE JURY, EVEN AFTER IT WAS WELL ESTABLISHED THAT SHE LIED ABOUT MATTERS MATERIAL TO HER FITNESS TO SERVE. (U.S. CONST. AMENDS. VI, XIV; N.Y. CONST. ART VI, § 18A) ............................................................................................. 50 A. The Improper Seating of Juror No. 11 and The Additional Failure to Remove Her During The Trial ............................................ 51 B. The Trial Court Abused Its Discretion By Failing to Excuse Juror No. 11 For Cause Where A Substantial Risk Existed that She Possessed a Prejudicial State of Mind That Precluded Her From Rendering a Fair and Impartial Verdict and Where the Record Reflects that She Made Material Misrepresentations about Her Qualifications to Serve ....................... 59 i POINT II THE TRIAL COURT’S MOLINEUX AND SANDOVAL RULINGS DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL UPON CHARGES BROUGHT BY A GRAND JURY AND TO TESTIFY ON HIS OWN BEHALF. (U.S. CONST. AMENDS. V, VI, XIV; NY CONST. ART 1 SECTION 6) ......... 67 A. Weinstein Was Stripped of the Presumption of Innocence When the Trial Court Allowed the Jury to Hear Excessive and Disparate Molineux Evidence that Served No Legitimate Non-Propensity Purpose and Was Designed Solely to Breed Contempt for Weinstein and Distract the Jury from Fairly Evaluating the Evidence on the Charged Offenses ............................. 67 1. The Molineux Rulings ............................................................... 67 2. The Molineux Evidence was Not Admissible For Any Legitimate Non-Propensity Purpose ......................................... 72 a. Molineux Testimony from Dunning, Wulff, and Young Was Simply Not Relevant to the Question of Whether Haley and Mann Consented to the Sexual Conduct that Formed the Basis of the Charged Offenses ................................................................ 72 b. Dunning, Wulff, and Young’s Testimony Was Not Relevant to Show Weinstein’s Intent to Forcibly Compel Haley, Particularly Where the Women Did Not Allege Any Forcible Compulsion by Weinstein ......... 75 i. Intent Was Not an Issue ....................................... 75 ii. The Molineux Witnesses Did Not Allege Forcible Compulsion ............................................ 77 c. Dunning, Wulff, and Young’s Testimony Was Not Admissible under a Common Plan or Scheme Exception .......................................................... 77 ii d. Mann’s Testimony Regarding Prior and Subsequent Non-Consensual Acts of Sex with Weinstein Was Not Relevant to any Disputed Issue and Was Therefore Inadmissible to Show Mann’s Lack of Consent or to Demonstrate Weinstein’s Intent to Forcibly Compel Her on the Occasion Charged ..................................................... 80 e. The Litany of Additional Bad Act Evidence Regarding Weinstein’s Alleged Sexual Behavior Was Not Admissible Under Any Legitimate Theory of Admissibility, Including the Non- Existent Exception of “Giving the Jury an Understanding.” .............................................................. 81 3. Even If Some Molineux Evidence Was Proffered for a Legitimate Non-Propensity Purpose, Its Probative Value Was Nil as Compared to Its Prejudicial Effect and Still Should Have Been Excluded ...................................... 83 4. The Admission of Molineux Evidence in this Case was Tantamount to a Constructive Amendment of the Indictment ................................................................................. 85 B. Weinstein Was Denied his Constitutional Guarantees Under the Fifth, Sixth, and Fourteenth Amendments to the Constitution Where the Trial Court Ruled that If Weinstein Exercised His Right to Testify, the Prosecution Would be Permitted to Cross-Examine Him About Dozens of Remote, Highly Prejudicial, and Unsubstantiated Allegations of Assorted “Bad Acts” ........................................................................... 90 POINT III THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT (1) PRECLUDED THE DEFENDANT FROM OFFERING EXPERT TESTIMONY ON TOPICS TESTIFIED TO BY THE PEOPLE’S EXPERT AND (2) PERMITTED THE PEOPLE’S EXPERT TO BOLSTER THE CREDIBILITY OF THE PEOPLE’S WITNESSES (U.S. CONST. AMENDS. VI AND XIV; CHAMBERS V. MISSISSIPPI, 410 U.S. 284 (1973)) ................................. 95 iii A. Procedural History, Evidence, and Summation Tactics Concerning Expert Testimony ............................................................ 97 B. The Court Committed Reversible Error by Permitting Unchecked Expert Testimony That Bolstered the Credibility of The People’s Witnesses and Sought to Establish That The Crimes Charged Occurred ................................................................. 103 1. Dr. Ziv’s Testimony Constituted Inadmissible Bolstering To Prove the Crimes Actually Occurred ............... 106 a. Women do not lie about rape ........................................ 106 b. Women are usually raped by someone they know ....... 108 c. Rape victims engage in self-harm and feel like “damaged goods” .......................................................... 109 2. Dr. Ziv Addressed Topics Concerning Sexual Assault That Were Not Beyond The Common Understanding of Lay Jurors ........................................................................... 111 3. Dr. Ziv’s Testimony About Victim Behavior During The Alleged Assaults Was Not A Proper Topic For Expert Testimony .................................................................... 112 4. Dr. Ziv’s Testimony Improperly Addressed Perpetrator Behavior .................................................................................. 113 5. Dr. Ziv Supplanted the Role of the Jury By telling The Jury That it Could Not Determine Credibility, Supplanted the Role of Defense Counsel by Instructing the Jury that it was “Out of Touch” to Ask an Alleged Victim to Explain Her Conduct and Bolstered the Prosecution by Suggesting that the Prosecutor Had Done its Job ............................................................................. 113 6. Dr. Ziv Was Permitted to Testify About Memory for Sexual Assault, Voluntary Unwanted Sex, and Consent - Matters as to Which She Was Not Qualified to Testify And As to Which the Defense Experts Were Barred ...................................................................................... 115 iv 7. The Prosecutor in Her Summation Amplified The Prejudice to Mr. Weinstein Resulting From Dr. Ziv’s Improper Testimony ................................................................ 117 C. The Trial Court Committed Reversible Error By Precluding the Defendant From Offering Expert Testimony On Topics Testified To By The People’s Expert Witness .................................. 118 D. The Defendant Was Further Denied His Constitutional Right to Present a Defense When, Inter Alia, the Prosecution Withheld Exculpatory Evidence, and the Trial Court Precluded the Defense from Calling Police Officer DiGaudio to Testify ............................................................................................ 121 POINT IV THE DEFENDANT’S CONVICTION FOR THIRD DEGREE RAPE SHOULD BE REVERSED AND THE CHARGE DISMISSED AS TIME-BARRED BECAUSE THE TOLLING PROVISIONS CONTAINED IN CPL 30.10 ARE NOT APPLICABLE TO THE DEFENDANT WHO WAS A RESIDENT OF NEW YORK DURING THE STATUTORY TIME PERIOD ............. 128 POINT V THE COURT ERRED IN REFUSING TO DISMISS THE PREDATORY SEXUAL ASSAULT COUNTS THAT WERE PREDICATED ON AN UNCHARGED, TIME-BARRED SEXUAL ASSAULT ALLEGED TO HAVE OCCURRED IN 1993, THEREBY PERMITTING EVIDENCE OF THIS CRIME AND ASSOCIATED MOLINEUX EVIDENCE BEFORE THE JURY (U.S. CONST. AMENDS. VI, XIV, EX POST FACTO CLAUSE) ............................................................................................ 135 A. Introduction ......................................................................................

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