Losing My Perspicacity April 26, 2024

Welcome back and Happy Free Friday!

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Today, I’ll do my best to explain why Harvey Weinstein’s NY state conviction was overturned, we sing Marta’s praises, there are some uncomfortable truths about Caitlin Clark’s show deal, and WADA has finally caved…kinda.

Let’s go.

NY Appellate Court Overturns Harvey Weinstein’s Conviction

Between the SCOTUS arguments on emergency abortion access on Wednesday and the reversal of Harvey Weinstein’s conviction yesterday, it’s been an absolutely super week to be a woman in America. I’m not even emotionally capable of dealing with the completely unhinged SCOTUS arguments on presidential immunity that took place yesterday morning, so let’s set those aside for now.

If you’re wondering how in the hell a court could look at all the women who have accused Harvey Weinstein and still overturn his verdict, you’re not morally wrong, but you might be legally wrong. Maybe. Here’s why.

Generally, at trial, the prosecution can’t introduce evidence of prior bad acts, meaning the prosecutor can’t tell a jury about a defendant’s prior criminal or morally bad behavior just to demonstrate that the defendant has a propensity towards a certain kind of criminal activity. Here’s a pretty good definition of the rule from the state of Tennessee:

Prior bad acts are generally found to be more prejudicial than probative and can unfairly bias a jury against a defendant. For example, say a guy is arrested for robbing a convenience store at gunpoint. This particular guy knocks over convenience stores all the time. Could the prosecution admit his prior robberies as evidence? It depends. Maybe the guy leaves a Pokemon card behind each time he robs a store as a personal signature. That could possibly come in as evidence of the defendant’s MO, or modus operandi. But a prosecutor can likely not tell a jury the guy robs stores all the time just to convince them that he was also the armed robber in the case he’s being tried for.

Of course, there are other exceptions to the rule. Maybe the defense was to put on evidence that their client was a peaceful guy who would never do anything as violent as robbing a store at gunpoint. If that happens, the defendant has “opened the door” to testimony about his character, and that allows the prosecution to call all the people he’s robbed to rebut his claim of being a non-violent person. Generally, if a person has committed a crime that involves lying, like fraud, embezzlement, check-kiting, etc., the prosecution can introduce those prior bad acts, because they relate to the defendant’s honesty. I’m oversimplifying this, but hopefully you get the gist. Prior bad acts are typically the subject of motions in limine, meaning motions before the trial starts, outside the presence of the jury, and it’s generally up to the judge to balance whether the prior bad acts will help or hurt the jury in determining if the defendant committed the crime charged.

In New York State, there is also something called Molineaux witnesses, which sort of relate to an accused’s MO. The Molineaux Rule is that “prosecutors can bring in proof of a defendant’s prior bad acts or crimes not to show criminal propensity, but to ‘establish motive, opportunity, intent, common scheme or plan, knowledge, identity or absence of mistake or accident.’” This brings us to Harvey Weinstein.

At Weinstein’s trial, there were a lot of women claimed that Weinstein sexually assaulted them but, for statute of limitations or jurisdictional reasons, the state was unable to prosecute their cases. The judge in Weinstein’s trial allowed three women to testify about their assaults in order to show Weinstein’s common scheme of assaulting women he ostensibly met with for business reasons.

From NPR:

Legal analysts had flagged this issue as one that would potentially come back to bite the prosecution early on. Yesterday, they were proven right. A New York appellate court overturned Weinstein’s NY convictions and ordered a new trial, saying the three Molineaux witnesses should never have been allowed to testify. Judge Jenny Rivera said that the inclusion of testimony from the Molineaux witnesses had wrongly “diminished defendant’s character before the jury.”

This is one of those cases where a ruling is probably good for the thousands of criminal defendants who are not Harvey Weinstein, but the fact that it came down in his case makes it tough to swallow. Most criminal defendants are at a huge disadvantage in the criminal justice system for a myriad of reasons, which is what makes experienced public defenders so important. Harvey Weinstein is not one of them. Still, everyone deserves a fair trial. The prosecution’s strategy at the time was a gamble and they knew it.

The most heartbreaking part of all of this is why prosecutors feel the need to bolster women’s testimonies with other women who say, “The defendant did the same thing to me.” And it comes down, mostly, to misogyny. Jurors are much more likely to believe a man is a sexual abuser if there are multiple women coming forward against him. That was the entire basis of the #MeToo movement — that there is strength, and credibility, in numbers. It’s also why many of the women who made #MeToo allegations hadn’t come forward before, and why so many sexual assault victims suffer in silence.

Women know that one woman coming forward against a powerful man, or even a non-powerful man, is likely to be disbelieved. It’s better to speak up in groups. There’s a greater chance people will believe you. Prosecutors used the same strategy in the Bill Cosby case, and even with more than 60 women coming forward, only one walked away with a conviction. Still, guys like Damon Wayans didn’t believe it. Annabella Sciorra, of The Sopranos and The Hand That Rocks The Cradle fame, gave absolutely gut-wrenching, heart-rending testimony about being raped by Weinstein. The jury found him not guilty on her count.

This is why feminists say “Believe Women.” It doesn’t mean that every woman’s story should be accepted as true without exception. But when women credibly tell a story under oath or at great personal risk, don’t just dismiss it out of hand. It’s not always “her word against his.” We are not always starting from a level playing field. It shouldn’t take dozens of women coming forward for a jury to believe a man is capable of rape.

As for Weinstein, he’s (thankfully) going nowhere, thanks to a 16-year prison sentence on separate charges in Los Angeles. He’ll most likely wait out legal limbo in New York while DA Alvin Bragg decides whether or not to retry him. Bragg has said that his office will do “everything they can” to retry the case, but that also means convincing the victims to go through all of this again. I’m not so sure I would.

Watch Marta While You Still Can

Brazilian soccer icon Marta says she will retire from international play at the end of the year.

It’s difficult to quantify the effect Marta has had on women’s football in her 20-year career. Last year, FIFA announced the “Marta Award,” which will be awarded for the best women’s goal of the year starting in 2025. She’s played in six World Cups, five Olympics, and been voted the best player in the game six times. She’s done for women in South America what the 99ers did for women’s soccer in the USA, and she did it without a World Cup to show for it and all on her own. I’m not sure there’s ever been another women’s player we can compare her to.

In men’s soccer, Brazil has nearly always had a great player for the world to look up, and in women’s soccer, that’s been Marta for as long as I can remember. She’s on Brazil’s Mount Rushmore of Soccer (I actually hate the Mount Rushmore analogy, but it’s apt) with Pelé and Ronaldo. She’s inspired countless girls and women to take up the game, and she deserves all the accolades that are about to come her way.

At 38, Marta is on the bubble for making Brazil’s Olympic team for Paris, but she said the strength of the women coming up behind her was one of the reasons she’s “at peace” with retiring now. Her contract with the NWSL’s Orlando Pride runs through the end of 2024. Go see her while you still can.

The Hard Truth on Caitlin Clark’s Shoe Deal

By now, you’ve probably heard that Caitlin Clark is set to sign a $28 million deal with Nike that will include her own signature shoe. Professor Kevin Blackistone wrote a piece at WaPo about the barriers women in the WNBA still face, and he makes some uncomfortable but undoubtedly true points about who gets to put their name on a shoe and who doesn’t:

His point follows quickly on the heels of an outcry on Twitter that Aces superstar A’ja Wilson does not have her own shoe.

(Edit: A couple of you have emailed to remind me that Candace Parker has her own shoe with Adidas and was left off the list).

There’s no explanation other than the obvious. Here’s to hoping that we remember that doors being open in the WNBA don’t mean much unless they are open for everyone. Otherwise, we’re just continuing to celebrate whiteness.

WADA Backs Down

To follow up on a story from earlier in the week about the World Anti-Doping Agency and the positive doping results by Chinese swimmers that they strategically didn’t let anyone else know about, WADA has now invited an independent investigator to look into its handling of the matter. That’s still not enough for USADA head Travis Tygart, who called the review “totally unacceptable.”

It's hard to imagine that WADA’s chosen investigator is going to come down too hard on the hand that feeds him, but I suppose stranger things have happened. One thing I can assure you, having clerked at the UN Centre for Human Rights in Geneva, is that nothing happens in Switzerland without a lot of politics involved. I’m sure this time will be different!

Finally, I salute my friends and former co-workers at The Onion with a full heart and a tiny bit of jealousy.

While I am sad that our once mighty Onion Union is no more (every single vertical in the Chicago G/O Office has now been sold), it seems they are in great hands.

It’s every outlet’s dream to get bought by fans who know how to run a media company. Good luck, you guys

Have a great weekend. See you all on Monday.