After sexual assault charges were dropped against former International Monetary Fund Chairman Dominique Strauss-Kahn in 2011, his lawyer Ben Brafman assailed the accuser’s credibility, telling Reuters: “This encounter was quick, it was consensual and she was a willing participant.”
Brafman on Friday hinted he would take a similar tack defending his latest client, film producer Harvey Weinstein. But this time Brafman, one of the New York’s most prominent defense lawyers, will make his arguments against the backdrop of the #MeToo movement, which was largely sparked by reports of his client’s sexual misconduct.
Outside the Manhattan courthouse where Weinstein, 66, was arraigned on rape and criminal sexual act charges, Brafman said that, if he cross-examined the accusers, a jury would not believe them, “assuming we get 12 fair people who are not consumed by the movement that seems to have overtaken this case.”
Weinstein has said he never had non-consensual sex with anyone, and Brafman said his client would plead not guilty to the charges by the Manhattan District Attorney’s Office.
Attacking the credibility of accusers through tough cross-examination is a common defense strategy in rape and sexual assault cases, which often boil down to “he said, she said,” according to New York lawyer Lisa Linsky.
She said the play-book had not changed in the #MeToo era, and Brafman might argue that the accusers and other women coming forward were motivated by fame or money.
In the Strauss-Kahn case, Brafman said at the time he planned to argue that the woman must be lying because she was much larger than the accused. “In a one-on-one she would probably win if this turned into a fist fight,” Brafman told Reuters in 2011. “She is not a small person.”
But a number of lawyers questioned whether Brafman would be able to cross-examine Weinstein’s accusers aggressively in the face of overwhelming public sentiment in their favor and against Weinstein.
“That is the $64,000 question,” said Gerald Lefcourt, one of Brafman’s peers among New York defense lawyers.
Lefcourt said he thought Brafman would find a way. “I think he is conscious of those considerations and will be able to strike the right tone,” said Lefcourt. “That’s what makes him a great trial lawyer.”
Shira Scheindlin, a former New York federal judge now in private practice, said the defense will become even more difficult if the judge allows testimony of women other than the accusers as evidence Weinstein had a pattern of conduct.
“If five other women have come forward, that’s going to weigh heavily on the jury,” she said, though Brafman would likely argue that such testimony would be prejudicial.
Bennett Gershman, a professor at New York’s Pace Law School, said the task for Brafman was “monumental, maybe even impossible” given the depth of public antipathy toward Weinstein.
“There is nobody like him,” said Gershman. “He is the poster boy of predatory sexual conduct. Brafman is not going to be able to dislodge that view of him.”
Gershman said he thought Brafman’s best strategy would be to stall for time and try to get the best possible plea deal, which would certainly include prison time.
But defense lawyer Roy Black said he did not think a deal would be possible.
“Given the way the flames of prejudice have been whipped up against him, anything less than life in prison will seem like a sweetheart deal,” said Black.