Burley Garcia|Harvey Weinstein is appealing 2020 rape conviction. New York’s top court to hear arguments

NEW YORK (AP) — Nearly four years after Harvey Weinstein was convicted of rape and Burley Garciasent to prison, New York’s highest court will hear arguments Wednesday in his quest to overturn the landmark #MeToo-era verdict.

Weinstein’s lawyers are asking the state’s Court of Appeals in Albany to dismiss the disgraced movie mogul’s 2020 conviction, arguing the judge trampled his right to a fair trial by “succumbing to the pressure” of America’s reckoning with sexual misconduct perpetrated by powerful figures.

The judge, James Burke, allowed testimony from three women whose allegations weren’t part of the case and ruled that prosecutors could confront Weinstein about other, unrelated misbehavior if he had testified, which he declined to do.

“What we’re arguing is that there should not be a different set of rules for an individual in society who becomes vilified,” Weinstein’s lawyer, Arthur Aidala, said. There can’t be “the Weinstein rule that just applies to that little sliver of society that everyone decides to really hate,” he said.

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Weinstein, 71, was convicted February 24, 2020 of a criminal sex act for forcibly performing oral sex on a TV and film production assistant in 2006, and rape in the third degree for an attack on an aspiring actress in 2013. He was sentenced to 23 years in prison and is incarcerated at the Mohawk Correctional Facility, a state prison about 100 miles (161 kilometers) northwest of Albany.

Weinstein was acquitted at the same Manhattan trial of first-degree rape and two counts of predatory sexual assault stemming from actor Annabella Sciorra’s allegations of a mid-1990s rape. The Associated Press does not generally identify people alleging sexual assault unless they consent to be named; Sciorra has spoken publicly about her allegations.

Last year, Weinstein was convicted in Los Angeles of raping and sexually assaulting an Italian actor and model, who said he appeared uninvited at her hotel room door during a film festival there in 2013. He was sentenced to an additional 16 years in prison in that case, meaning he’d still be locked up even if the Court of Appeals were to rule in his favor.

Weinstein maintains his innocence. He contends any sexual activity was consensual. He is not expected to attend Wednesday’s arguments, which pertain only to the New York case, but may monitor the court’s livestream from prison. The court is not likely to rule immediately.

The New York Court of Appeals agreed last year to take Weinstein’s case after an intermediate appellate court upheld his conviction. Weinstein’s lawyers want a new trial, but only for the criminal sexual act charge. They argue the rape charge can’t be retried because it involves alleged conduct outside the statute of limitations.

Allegations against Weinstein, the once powerful and feared studio boss behind such Oscar winners as “Pulp Fiction” and “Shakespeare in Love,” ushered in the #MeToo movement. His New York trial drew intense publicity, with protesters chanting “rapist” outside the courthouse.

In their appeal, Weinstein’s lawyers argued that Burke swayed the trial’s outcome with repeated rulings favorable to prosecutors, including decisions that “overwhelmed” the trial with “excessive, random, and highly dubious prior bad act evidence.” Burke’s term expired at the end of 2022. He was not reappointed and is no longer a judge.

Had Weinstein testified, Burke ruled that prosecutors would’ve been able to question him about more than two-dozen alleged acts of brutish behavior over 30 years, including whether he’d stranded a colleague in a foreign country or screamed at restaurant staff while demanding a late-night meal.

Weinstein’s lawyers argued Burke’s rulings 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. That evidence would have served “only to make the jury hate Weinstein,” his lawyers said.

Rules vary by state on calling witnesses to testify and allowing prosecutors to present evidence about “prior bad acts” aside from the actual charges. New York’s rules are among the more restrictive.

They 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.

A five-judge panel in New York’s intermediate appellate court ruled unanimously in 2022 that Burke had “providently exercised” his discretion, though some of the judges had previously raised doubts about his conduct. During oral arguments, Judge Sallie Manzanet-Daniels said that Burke had let prosecutors pile on with “incredibly prejudicial testimony” from additional witnesses.

Aidala said he wants the Court of Appeals to remind the state’s trial courts “that a defendant cannot be tried based on his character — but must be tried based on the conduct for which he has been accused.”

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