Weinstein Prosecutors Gambled and Lost

The tossing of Harvey Weinstein's sex crimes conviction in New York may have been shocking, but prosecutors had taken a series of chances when pursuing the case, Jodi Kantor writes in a New York Times analysis. In the end, one law professor and former prosecutor said, whether his trial was fair "is a really close question that could have gone either way." From a distance, the evidence against the former film mogul seemed conclusive, writes Kantor, who won a Pulitzer Prize for a Times investigation of the allegations and co-wrote She Said. But in the context of the requirements of the justice system, Kantor says, "the prosecutors had little concrete evidence."

The charges were based on the allegations of two women, who said they were sexually assaulted by Weinstein but had consensual sex with him at other times. So prosecutors had other women testify he'd abused them to establish a pattern of behavior. "The move risked violating a cardinal rule of criminal trials: Defendants must be judged on the acts they are being charged with," Kantor writes. The appeals court's opinion saw that as a fatal flaw in prosecutors' strategy. "No person accused of illegality may be judged on proof of uncharged crimes that serve only to establish the accused's propensity for criminal behavior," the opinion says. Kantor's analysis can be found here. (More Harvey Weinstein stories.)