Harvey Weinstein Could Be Headed for Retrial Due to 'Incredibly Prejudicial Testimony'

A five-judge appellate court panel could give Harvey Weinstein a new trial.

The New York panel, which included Judge Sallie Mandanet-Daniels, argued that the decision to use testimony from women whose sexual assault allegations were not part of his charges resulted in an unfair trial. The panel also expressed interest in a retrial and maybe a conviction reversal altogether.

"Let's inflame the jury's heart by telling them that he beat up his brother during a meeting. I just I don't see how there is a balance there on that," said Manzanet-Daniels. She also called the testimonies given by unrelated victims "incredibly prejudicial."

Weinstein was convicted of rape in February 2020 for forcibly performing oral sex on a production assistant and sexually attacking an actress. Testimonies not related to those cases, but Weinstein's long history of similar allegations, were the subject of the Wednesday panel.

"The jury was overwhelmed by such prejudicial, bad evidence," said Weinstein's lawyer Barry Kamins. "This was a trial of Harvey Weinstein's character. The people were making him out to be a bad person."

Weinstein was sentenced to 23 years in prison in New York. He is also facing charges in California for assaulting five women from 2004 to 2013. A decision on whether to call for a retrial is expected to be determined in January.

Weinstein was acquitted of first-degree rape and two counts of predatory sexual assault stemming from actor Annabella Sciorra's allegations of a mid-1990s rape.

The verdict was a landmark in the #MeToo movement that was spawned by women coming forward with allegations against Weinstein. He maintains his innocence and contends that any sexual activity was consensual.

Burke, the Manhattan judge who presided over Weinstein's trial, allowed prosecutors to bolster their case with testimony from three women who alleged Weinstein also violated them but whose claims did not lead to charges in the New York case.

Rules on calling witnesses to testify about so-called "prior bad acts" vary by state and was an issue in Bill Cosby's successful appeal of his sexual assault conviction in Pennsylvania. New York's rules, shaped by a landmark decision in a 1901 poisoning case, are among the more restrictive.

Weinstein's lawyers argued that extra testimony went beyond what's normally allowed—detailing motive, opportunity, intent or a common scheme or plan—and essentially put the ex-studio boss on trial for crimes he wasn't charged with and hadn't had an opportunity to defend himself against.

Burke's ruling allowing prosecutors to use horror stories from Weinstein's past to attack his credibility worked to prevent him from taking the witness stand, said Kamins.

Kamins also challenged Burke's refusal to remove a juror who had written a novel involving predatory older men, as well as his decision to allow prosecutors to have an expert on victim behavior and rape myths testify while rejecting testimony on similar subjects from defense experts.

The Associated Press contributed to this report.