Weinstein decision undermines integrity of NY court

The only surprise in New York’s top court overturning the sexual assault conviction of Harvey Weinstein was the breathtaking recklessness of the ruling and the devious process by which it happened.

The Weinstein ruling will make it difficult to bring acquaintance rape and sexual assault charges in New York and could hold sway in other states. “Ultimately, the road to holding defendants accountable for sexual assault has become significantly more difficult,” wrote Associate Judge Madeline Singas in dissent.

In finding that it was prejudicial to allow testimony from alleged victims of Weinstein whose encounters were not part of the charges against him, the ruling essentially found that a defendant’s rights are more important than the rights of those who said they were crime victims. The decision must be understood within the larger context of the ambitious movement to remake New York’s criminal justice system into one that sends fewer people to jail. It started with 2019’s sweeping changes to bail requirements, narrowed three times since, and continued with the tawdry process to torpedo the nomination of Hector LaSalle as chief judge and instead elevate Rowan Wilson, someone primed to disrupt precedent in order to expand protections for the accused. Next up is a lobbying campaign to stop the reappointment of trial court judges considered too tough on defendants.

DANGEROUS PRECEDENT

While changes to correct the over-prosecution and incarceration of vulnerable and marginalized groups are warranted and overdue, a crusade that involves stealth engineering of Court of Appeals procedures and traditions to get a desired result sets a dangerous precedent.

If Weinstein deserved a new trial because of an error by the trial judge, a narrowly crafted ruling on specific facts should have been enough. But as noted by Singas, the former Nassau County district attorney, it’s becoming clear that under Wilson “this Court has continued a disturbing trend of overturning juries’ guilty verdicts in cases involving sexual violence.”

Now top New York Democratic elected officials — Gov. Kathy Hochul, State Senate Deputy Majority Leader Michael Gianaris and Senate Judiciary Committee Chairman Brad Hoylman-Sigal — are caught in this backlash to the #MeToo movement’s push to bring serial sexual predators to justice. Finding a legislative way to restore the ability of district attorneys to use evidence of past behavior in sexual violence cases would certainly be swimming against the tide in Albany.

But something even more troublesome is happening. Such a radical change to century-old rules of evidence must rest on a foundation impervious to claims of illegitimacy. Included in the four-judge Weinstein majority, the minimum needed to decide a case, were two lower court judges never confirmed to sit on the state’s top court. New York’s Constitution requires that judges of the seven-member court be nominated by the governor and confirmed by the State Senate. That’s to ensure a variety of perspectives among the judges selected, a notion critical to maintaining public confidence in the integrity and fairness of the court’s decisions.

The 4-3 decision cannot escape this devastating specter of illegitimacy.

Two associate justices, Shirley Troutman and Caitlin Halligan, recused themselves for reasons that remain disturbingly unclear. Former associate judge Eugene Fahey’s mentoring of Troutman and close relationship with Wilson are well-known. But Fahey’s bonds with Weinstein go back even further to their time as college roommates, and he presided over two Weinstein marriages. Halligan has now twice ducked big cases, beginning with the 2022 redistricting fiasco. After LaSalle’s rejection, Hochul and Senate Democrats agreed to alter the selection process. This allowed Hochul to pair the appointments of Wilson and Halligan, who was seen as more moderate, to counterbalance him. Yet, in the two cases with national implications, Halligan declined to participate. Court records reveal she provided only a vague explanation about a connection to a friend-of-the-court brief.

JUDGES SIDELINED

With Troutman and Halligan self-sidelined, the likely vote would have been 3-2 to uphold the Weinstein conviction. But it never got that far.

A chief judge who understood the importance of leading an institution might have sought to forge a consensus so the court could speak with a clear voice on important issues. But Wilson, whose judicial career is marked by numerous dissents, instead turned quickly to the rarely used process of “vouching in” a lower-court judge as a substitute.

For one, Wilson selected pro-defendant Brooklyn Appellate Division Judge Betsy Barros, who had dissented in a recent gun case with the same criticism of evidentiary rules adopted in the Weinstein case. That echoed the redistricting case, where Wilson chose a substitute judge who had ruled against Republicans in a similar challenge to the gerrymandered maps.

The other judge-for-a-day was Albany Appellate Judge Katherine Clark, someone Wilson knew from her work encouraging lawyers to volunteer to represent the disadvantaged. Five weeks after the arguments in the Weinstein case, Wilson appointed Clark to a special state commission, lavishing praise on her efforts “to narrow the State’s justice gap,” according to a March 24 news release.

The State Legislature should revise court rules to remove the chief judge’s authority to elevate a lower-court judge to substitute on Court of Appeals cases. The selection should be more random, made either by seniority or a lottery.

In his tenure so far, Wilson is establishing a record as a chief judge who believes the end justifies the means, undermining the assumption that a case will be decided strictly on the merits and not in service of a wider political agenda.

The people of New York deserve better.