Steve Palmer [00:00:00]:

Lawyertalkpodcast.com Check us out. Steve Palmer here with another episode of Lawyer Talk podcast coming at you with a what's the Appeal Segment. I'm going to take a little bit of different direction. We're going to use a real life example on what's the appeal? Harvey Weinstein. Everybody knows this guy. Everybody hates this guy. Everybody is aware of what the accusations are, true if you believe or false if you don't. Whatever the situation is, not going to comment on that.

Steve Palmer [00:00:24]:

But it's a great example for what's the appeal breakdown. Because Weinstein was convicted in New York, I don't know, several years ago, and he appealed his conviction, meaning he was convicted, he was found guilty of raping these women. Look, I'm not going to delve into the facts, but the fact is he was found guilty of sexual misconduct, rape and other things and he was sent to prison. After his conviction. He filed a notice of appeal and challenged the legality of his convictions on appeal. And what he was arguing on appeal was that the judge in his trial for raping certain women let in testimony by other women, meaning other people, other alleged victims who were not part of the indictment for various reasons. In law, we call this 404B. I'm not going to dig into the technicalities of it, but basically it says the prosecutor can't put into evidence other acts, other prior acts, or even any acts where in order to show guilt on this occasion.

Steve Palmer [00:01:30]:

So you can't just say, well, look, he did it once, he must have done it again. Now, 404B creates an exception and says, well, sometimes you can, but not to show he did it this time, but to show other things. And there's lots of nuance we can dig into. Maybe that's for another day in the Law school series. But anyway, the, the judge in his original trial let the prosecutor admit testimony from other victims, other alleged victims about other acts that Weinstein allegedly committed. And the court of appeal says, yeah, you can't do that. That wasn't fair. And the idea is, and look, you can say, well, he's a no good rotten sob and maybe he is.

Steve Palmer [00:02:07]:

And we don't care if all these, why shouldn't the other victims testify? Here's why. Because you want to make sure you have a fair trial. If anybody deserves a fair trial, it is the most guilty, deplorable person you can possibly imagine. Because if he can get a fair trial, then you, when you're not guilty, you can get a fair trial too, if you bend the rules. For the Weinsteins of the world, then the rules aren't going to be there when you or your loved one wants a fair trial and maybe you're not guilty. So the court of appeals sends it back for a new trial. And during the new trial, the prosecutor not only retries the original case, but I think added a couple of victims and. And added some stuff, probably.

Steve Palmer [00:02:45]:

I don't know this for sure, but probably. So they wouldn't be just other acts. They would actually be acts. They would actually be charged counts. And that would create a roadmap for admissibility of some of that other testimony. Well, a couple things happen. They go through the trial, and apparently the jury was. We'll just say there was some unrest in the jury panel as they were deliberating.

Steve Palmer [00:03:10]:

There was some shouting, there was screaming. They were at each other's throats. Apparently there was even a threat, I'll meet you outside someday, from one juror to the other. This is going to sound terrible, but I love this. I love it, and here's why I love it. Because this is the jury system, folks. This is what makes it tick. You know, you put 12 folks in a room and you make them decide facts.

Steve Palmer [00:03:32]:

It should be. Maybe not should be. It often is rather contentious because we have something called the adversarial system. Everything from soup to nuts, beginning to end, is adversarial in our system. I represent the defendant upstairs in my law practice all the time, and the prosecutor represents the government. And we go at it, we tear at each other's throats. And it should be that way, because at the end of that conflict, at the end of the adversity, the theory goes, the truth lies. Now, is that always the case? Of course not.

Steve Palmer [00:04:03]:

Because we're human and we're imperfect. But we have decided that the adversarial process is the best way to get to what we think is the closest semblance to the truth you can get to in the criminal justice system. And what was going on in Weinstein's jury deliberations was clearly adversarial. They were going at it. Great movie. I'm sure I maybe even talked about it before, called 12 Angry Men. It's about a jury deliberating. I believe it started as a play, actually, and the movie was made famous by Henry Fonda and a great host of character.

Steve Palmer [00:04:34]:

I think Jack Klugman was in it, a great host of character actors. Go watch it. It's old, it's black and white, but trust me, you'll love it. But the title of the movie was 12 Angry Men, and it was 12 Men arguing in a jury deliberation room about whether they should convict a young man of murder. And at the end of the day in that movie, I won't tell you the end, but they reached a decision. And it started 11 to 1. You can imagine who was the one, Henry Fonda. And it flipped all the way around at the end and actually didn't flip all around, but eventually reached a decision unanimously, 12 to 0.

Steve Palmer [00:05:14]:

But the point is that in that conflict, in that arguing, in that back and forth, sometimes heated, emotional, even personal debate, lies the truth. Now, there's another twist to this in the Weinstein case is that the jury in that case, in the retrial, was able to convict on, I think, some of the counts, but not on all of them. So I think there was a conviction on some, there was an acquittal, meaning found not guilty on another and couldn't reach a decision, became deadlocked on yet another count. So he had, like, the full array of things that could happen in a jury deliberation happened in the Weinstein case. So there was a conviction, there was an acquittal, and there was a hung jury. Now, before I go into what happens with a hung jury, let's talk a little bit about the arguing and the debating, because Weinstein's lawyers, as I probably would have been, jumped up and down saying, I deserve better. I'm the guy on trial. This isn't fair to me that these jurors want to kill each other.

Steve Palmer [00:06:12]:

I use that term euphemistically, of course. I don't mean kill each other, but wanted to fight each other. They're arguing and his lawyers are saying, look, this isn't fair. And I think Weinstein himself even made a statement at some point saying, look, I'm the guy on trial here. This is for me. It's not fair to me. And the judge, I think, rightfully said, nah, not so fast. This is what the process is about.

Steve Palmer [00:06:34]:

This is why we have jury deliberations. This is why it gets heated. And, you know, when you're in the heat of battle like that, on the defense side, we make these arguments for, like, a mistrial, for instance, because the jury's fighting each other and not getting along. But you never know. Sometimes I've made these arguments thinking, well, what if it's going my way? You just don't know. And as much as I try to predict it, as many times as I thought I had it right, there's an equal Number of times where I was completely wrong. I thought it was going the other way, but it was going mine or going my way, but it was going the other. You never know.

Steve Palmer [00:07:05]:

But the judge rightfully said nuh. Now the question then becomes on appeal. So when Weinstein appeals this conviction, what are the issues? Jury misconduct or deliberation type of evidence is really difficult. There's something called the aliunda rule, which is fancy Latin talk. A L, I U n D E for you geeks out there, look it up in your Black's Law dictionary. But it basically says you can't disturb a jury's verdict based on one juror's testimony or statement. And the idea is to preserve the sanctity of the jury deliberation process. So I don't think there'll be much play for Weinstein on appeal on that issue.

Steve Palmer [00:07:45]:

Now back to the deadlocked or the hung jury and the retrial, or maybe not retrial. So prosecutors at their discretion, can elect to retry the case after a hung jury. I've had cases where the jury's hung and back I call the old days. I'm only 55 and I've been doing it for 30 years. But back when I started, a lot of times we'd have a trial, it'd be a hung jury and judge say, okay, we'll start tomorrow, we're going to retry it right now. Mr. Prosecutor, what say you? And the prosecutor would get to say, well, we're going to retry the case and we're ready to go. But they don't always have to retrial the case, and they don't always do retry the case, particularly when there's some.

Steve Palmer [00:08:25]:

Some convictions, but not others. So let's say there's 15 counts and there's guilty verdicts on seven of them, and on the remaining eight, it's a hung jury. And the seven are enough to put a client away or put a defendant away for a sufficient amount of time that the prosecutor doesn't really care to bother with another exercise of a jury trial. They may just say, no, it's good enough for us. But in this day and age, we have these victims rights and there's a lot more attention to what the victims want, or alleged victims want, rather. And, and prosecutors will often just retry it, even though it won't really move the needle on the punishment at the end of the day because they want justice for their victims. It's their choice. I mean, that's just how the system works.

Steve Palmer [00:09:05]:

So here I think the New York prosecutor is banging the table and saying, I'm going to retry this. We're going to convict Mr. Weinstein of everything we can. And it may not matter because the original convictions may or may not be upheld on appeal. And if they are, then he's doing enough prison time where it probably doesn't matter. And don't forget, there's also a case out in Los Angeles where Weinstein has been convicted, and that case is currently on appeal as well. So we'll see what happens. It's just a great real life example of lots of different things that can happen after a conviction and on an appeal.

Steve Palmer [00:09:38]:

So you want me to break it down even more? Shoot me a comment in the socials. Shoot me a questionawyertalkpodcast.com this is Steve Palmer coming at you each and every week. Lawyer Talk podcast, off the record, on the air.