On October 24th in a Los Angeles courtroom, Mark Werksman, Harvey Weinstein’s lawyer, was delivering his opening statement. The LA case marked the second time Weinstein faced prosecution; the first ended with his conviction, in early 2020, on charges of third-degree rape and a criminal sexual act.
“She’s made herself a prominent victim in the MeToo movement,” Werkman said. “Otherwise, she’d be just another bimbo who slept with Harvey Weinstein to get ahead in Hollywood.” He was talking about Jennifer Siebel Newsom, a documentary filmmaker whose husband is the current governor of California, Gavin Newsom, and one of four women whose allegations made up the charges against Weinstein. Without naming her, Werksman made it clear who he was referring to when he described her as a very prominent citizen of California.
Siebel Newsom’s attorney denounced the comments as “despicable, desperate” and “dishonest” to The Associated Press, adding: “The defense is callously engaging in misogynistic name-calling and victim-shaming.” Even by the acrimonious standards of the American courtroom, Werksman’s words seemed brazen: openly contemptuous of not only Siebel Newsom, but other women who have alleged Weinstein assaulted them.
Yet Alan Jackson, another lawyer for Weinstein, used a similar tone in his closing argument. Siebel Newsom’s tearful testimony, which she had delivered earlier in the trial, was “a theatrical, overly dramatized performance,” he claimed, telling jurors: “What you saw was an act.” He argued that Siebel Newsom had engaged in ““transactional sex,” a recurring theme in the defense’s strategy. “She knows it, and she hates it,” he told the jury.
This approach was only partially successful for the defense. In a verdict announced on 19 December, the jury found Weinstein guilty of rape, forcible oral copulation, and sexual penetration by foreign object. All three of those counts were related to one woman. Jurors acquitted Weinstein on counts related to a second woman, and could not reach a verdict on counts related to two other women, including Newsom.
This year, the unbearable cruelty of the American courtroom was laid bare. From Weinstein’s court cases to the federal appeal of former cult leader Keith Raniere to the controversial Peacock documentary about Casey Anthony, US jury trials have come under particular scrutiny — and justifiably.
The public shaming of Amber Heard
In the US, jurors may rule on criminal and civil cases alike. Other countries, such as France and Canada, use juries more sparingly, only allowing them to rule on the most serious criminal offenses. In the UK, too, juries are more rarely relied on; unlike in the US, they can only be used to render a verdict, and never to decide on whether to charge someone. In the US, however, a grand jury can be convened after someone is arrested and only they decide whether to indict somebody of those crimes (for instance, in the OJ Simpson trial, Simpson was arrested by police and then, after a grand jury was convened, the jury decided he should be charged with murder. In most other countries, the state would have made this decision.)
Jury duty is often painted as a sacred duty of American citizenship. At the Depp v Heard trial, Judge Penney Azcarate made a point to thank jurors for their time and service. And well she might: Being selected for jury duty is in several regards a major logistical annoyance, getting in the way of jobs, planned travel, and other day-to-day responsibilities. But in 2017, a Pew Research Center survey showed that 67 percent of respondents said serving on a jury is “part of what it means to be a good citizen.” In the courtroom, the prosecution and the defense share a mission: that of convincing the jury of the defendant’s guilt (for the former) or innocence (for the latter). Trials in the US therefore often become exercises in storytelling, more so than fact-finding. Each side deploys its own narrative and competes to tell their own story the most compellingly.
This dynamic was perhap most ferociously illustrated this year in Fairfax, Virginia, where Johnny Depp and Amber Heard’s civil lawsuit took place in front of a number of spectators and journalists, including this reporter. Depp sued his ex-wife for defamation over an op-ed for The Washington Post, in which she described herself as “a public figure representing domestic abuse”. (He previously lost a defamation case against The Sun in the UK over a headline referring to him as a “wife beater.”) She counter-sued him. Both took the stand during the trial, and both were cross-examined by the other’s legal team.
The trial was televised, meaning that millions of viewers watched along with the jury as Heard fought for her composure through hours of testimony. Online, countless messages and memes made fun of her. At the end of it all, jurors largely sided with Depp, finding that Heard had defamed him on three statements. They found in favour of Heard on one of three statements mentioned in her counter-suit. Depp was initially awarded $10.35m in damages and Heard $2m, but on December 19, Heard announced they had decided to settle the case. Depp’s legal team told The New York Times that Heard had agreed to pay $1m to her ex-husband in the end.
Before the settlement was announced, the online vitriol against Heard prompted more than 100 people and several organizations, including Constance Wu, Gloria Steinem, and the National Organization for Women, to sign an open letter denouncing “the public shaming” and “vilification” of Heard.
“The vilification I have faced on social media is an amplified version of the ways in which women are re-victimised when they come forward,” Heard said in her own statement announcing the settlement. “I make this decision having lost faith in the American legal system, where my unprotected testimony served as entertainment and social media fodder.”
The NXIVM trial: ‘Before I’m a judge, I’m a human being’
When former cult leader Keith Raniere lost his federal appeal earlier this month, the court of appeals ruling on the matter brought up an incident dating back to his trial. It occurred in May 2019, during the testimony of Lauren Salzman. Salzman is a former high-ranking member of NXIVM and former partner and confidante of Raniere. She has described, both in her court testimony and in the HBO documentary The Vow, the emotional and intellectual manipulation Raniere deployed among his inner circle. She has said she stayed with him and NXIVM because Raniere had told her he wanted children, and she wanted to start a family too, but that never came to pass.
Salzman had been on the stand for hours, testifying in Raniere’s presence, when Judge Garaufis halted her testimony. She had become more and more emotional as she spoke – too emotional, the judge found, for the cross-examination to continue.“You are done,” he told Raniere’s lawyer Marc Agnifilo, according to a transcript posted by Frank Parlato, a former NXIVM publicist who now runs a website dedicated to exposing the organization. “This is a broken person, as far as I can tell,” Judge Garaufis told Agnifilo of Salzman. The judge then told the attorney he had gone “way over the line” in his questioning, and that “I’m not going to have someone have a nervous breakdown on the witness stand.”
When Agnifilo pressed the matter, Garaufis did not back down.“Before I’m a judge, I’m a human being. And that goes for everybody in this room, and it includes you and the government,” Garaufis said. “And I am not going to allow someone to be placed in this circumstance and then let it continue. I am the one who is disappointed.” It was a poignant moment, and a notable departure from the courtroom setup per which everyone – attorneys, prosecutors, judges – sticks to a given role, even if it means overstepping social norms or dialing down one’s sense of empathy.
Yet, who better to rule on an accusation than a jury of one’s peers? Supposedly, this is the best chance any defendant has at being assessed in a neutral environment. Other moments from this year, however, make a mockery of that noble idea.
The jurors who had never heard of MeToo
When it comes to jury selection, “neutral” is often interpreted as “with as little direct knowledge as possible of the issues at hand.” During the jury selection for Weinstein’s Los Angeles trial, potential jurors were asked about their knowledge of the MeToo movement. “At least five” said they were not familiar with it, according to BuzzFeed News – and of those five, one was reportedly excused at the end of the day, while the other four presumably remained under consideration.
At the Depp v Heard trial, jurors were asked about their opinions not just on the two famous parties, but on sexual assault allegations, MeToo, and whether it’s important to believe people who say they are victims of sexual violence, among other questions.
In this context, having been a victim of a particular crime can be considered as bias for a potential juror. Back in 2015, attorneys for a football player convicted of raping a classmate got the verdict tossed on the basis that one of the jurors had been a victim of statutory rape and had not disclosed that fact. (The player, Brandon Vandenburg, was retried and convicted again the following year.) Whether or not you believe direct experience of the crime at hand should disqualify you from being considered a “peer” isn’t legally relevant, though it is at least philosophically tricky.
Of course, the prosecution and the defense alike can rely on experts to deliver testimony and fill the jury’s knowledge gaps. During Weinstein’s New York trial, the prosecution deployed Dr Barbara Ziv, a forensic psychiatrist who took the stand to debunk myths about sexual assault. But there is only so much an expert testimony can accomplish over the course of a few weeks, especially compared to years of literacy in these matters. Being lectured by a stranger in the charged atmosphere of the courtroom isn’t the same as building a personal library of knowledge.
Casey Anthony, the ‘monster’ who was found not guilty
The walls of a courtroom are porous. The acrimonious debates that happen therein affect not just the jury, but also the public at large, especially in high-profile and televised trials.
Eleven years ago, the trial of Casey Anthony over her daughter’s death began. Anthony, who was 25 when her two-year-old daughter Caylee went missing, was charged with the toddler’s murder. Opening statements, delivered by the prosecution, then by the defense, “did not disappoint: They offered jurors two wildly opposing theories” about Caylee’s death, the Boston Herald reported at the time.
The prosecution contended that Anthony had intentionally killed her daughter, while the defense insisted it had all been a tragic accident. Each side stuck to its narrative, and the jury had to figure out how to make sense of it all. Having heard all of the evidence, it acquitted Anthony.
But in the interim — and even before the trial had begun in earnest — the case generated a seemingly endless glut of headlines. Nancy Grace, the true-crime TV host, regularly railed against Anthony, whom she nicknamed “tot mom”. The trial aired on television, meaning that the prosecution’s narrative – that Anthony had murdered her daughter so that she could party to her heart’s content – quickly became familiar to an entire nation. When Anthony was acquitted, that decision was met with what The New York Times referred to as “collective skepticism” – a sentiment which, based on the outrage when Peacock announced it would air a documentary series (titled Casey Anthony: Where the Truth Lies) featuring interviews with Anthony herself, persists to this day.
Regardless of where you stand on the Casey Anthony verdict, it’s worth looking back on the media coverage of the proceedings, which raised eyebrows even as they unfolded a decade ago. In June 2011, during the trial, The Washington Post observed: “Newspapers post pictures of a scantily clad and dancing Anthony next to stories about her daughter’s murder... One newscaster even referred to her ‘boobs’ on air. This over-the-top coverage of Anthony’s looks makes it seem like she’s facing two trials: one in a courtroom, the other in the media.”
The article then dug into the extensive discourse around Anthony’s wardrobe. There were comments about “clingy” or “low cut” garments. All as she faced trial – and possibly the death penalty – for the alleged murder of her child.
When Anthony’s acquittal was met with a wave of outrage, Dr Carole Lieberman, a forensic psychiatrist in the department of psychiatry at UCLA, told ABC News: “The main reason that people are reacting so strongly is that the media convicted Casey before the jury decided on the verdict.”
“The public has been whipped up into this frenzy wanting revenge for this poor little adorable child,” Lieberman added, “...In general, the public had the story made up in their minds, and it’s hard for people to accept an outcome that is different than what they already decided, even though there wasn’t enough evidence brought up to show that.”
‘If I went public and I didn’t win, I wouldn’t have been able to work’
In a justice system as punishing as the American one, it should be as hard as it can possibly be to convict somebody. But a system in which the people who are deemed best able to rule on serious crimes are often the ones who know little about them — and a system in which jurors are too often treated as blank slates onto which the most inflammatory rhetoric can be scribbled – isn’t neutral. It’s a choice. It should be acknowledged as such, especially as it creates the context in which lawyers find themselves referring to alleged victims of sexual crimes as “bimbos”, or bringing cooperating witnesses to uncontrollable tears.
But this kind of bitter confrontation is what solid convictions are made of, some will argue. Only by letting a defense attorney deploy every means at their disposal can we securely find people guilty of crime. Maybe that makes sense in some individual trials. But cases such as Weinstein’s should compel us to look at the system as a whole.
One of the women who testified during Weinstein’s LA trial said she was too “embarrassed and humiliated” to report what had happened to her.
“I work with high-end clients that trust me,” she told the courtroom in November. “If I went public that I was sexually assaulted by Harvey Weinstein, and I didn’t win, I wouldn’t have been able to work with high-profile clients and that’s all I work with.” What was meant to be justice became, for her — and for so many other American women — a machine of self-perpetuating unfairness.
This story was originally published on 20 December 2022.
