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Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: The Harvey Weinstein trial is almost the definition of a

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Speaker 1: high profile trial. A former powerful Hollywood producer on trial

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Speaker 1: on charges of rape and sexual assault after more than

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Speaker 1: eighty women, including Hollywood actors, have publicly accused him of

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Speaker 1: sexual misconduct, kicking off the worldwide Me Too movement and

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Speaker 1: all that it generated. Weinstein arrived at the Lower Manhattan

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Speaker 1: Court House on Monday morning, surrounded by his lawyers and

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Speaker 1: a security team, and met by scores of photographers and

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Speaker 1: television cameras and about twenty women, including the actors Rosanna

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Speaker 1: Arquette and Rose McGowan, who both say they were abused

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Speaker 1: by Weinstein. As one of the silence bakers, I stand

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Speaker 1: in solidarity with the brave survivors who will take the

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Speaker 1: stand against Harvey Weinstein in this trial. I thank those

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Speaker 1: testifying for standing not just for themselves, but for all

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Speaker 1: of us who will never have even one day in courts.

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Speaker 1: Joining me as former federal prosecutor Laurie Levinson, a professor

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Speaker 1: at Loyola Law School, the scope of this trial encompasses

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Speaker 1: so much more than the allegations. Explain how that affects

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Speaker 1: what happens inside the courtroom. Well, the first question is

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Speaker 1: how it might affect the jurors who sit on this case.

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Speaker 1: A lot has changed since the beginning of the Harvey

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Speaker 1: Weinstein case, and I think people are much more alert

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Speaker 1: and much more sensitive to these issues, and that makes

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Speaker 1: it more likely that the accusers will be believed in

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Speaker 1: the courtroom, or even that the jurors might have some

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Speaker 1: type of agenda of convicting Harvey weinsteemed to send a

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Speaker 1: message the jurors are going to be hearing a very

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Speaker 1: narrow case, the charges resting largely on the testimony of

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Speaker 1: the two women Weinstein's charged with assaulting in two thousand

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Speaker 1: and six. But the judge is allowing the prosecution to

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Speaker 1: call other women, so called prior bad act witnesses, to

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Speaker 1: testify about how Weinstein allegedly assaulted them. Could that be

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Speaker 1: a game changer? Yes, that's likely to be a game changer.

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Speaker 1: And we know that from the Cosby case, which is

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Speaker 1: their strength in numbers, and that maybe one or two

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Speaker 1: women could be attacked on cross examination. But the prosecutor

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Speaker 1: always wants to show a pattern of conduct, not to

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Speaker 1: say that this was just sort of an isolated situation,

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Speaker 1: but to put it into context, so without those additional witnesses,

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Speaker 1: it makes it much more difficult to get a conviction.

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Speaker 1: Weinstein's lead attorney, Donna Rotuno, downplay the effect of the

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Speaker 1: number of accusers staying on CNN that it might actually

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Speaker 1: benefit the defense. I think in some ways that number

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Speaker 1: sort of helps us, because once the jury sits down

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Speaker 1: and the jury hears that this is only about two women,

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Speaker 1: I think they start to wonder how truthful those other

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Speaker 1: circumstances are, or if there were so many, why aren't

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Speaker 1: they a part of the criminal case. Is that just

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Speaker 1: trial lawyers bluster? I think that's wishful thinking. I mean,

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Speaker 1: it is true that the jurors are going to be

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Speaker 1: told that this is just being used for a narrow purpose.

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Speaker 1: It's also true that there are dozens more accusers out

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Speaker 1: there against Harvey Weinstein who are not having their cases

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Speaker 1: tried in the courtroom. And so she might be saying,

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Speaker 1: you know, ladies and gentlemen, there were a lot of

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Speaker 1: accusations out there, but they didn't bear enough truth to

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Speaker 1: be tried, and therefore you should be suspicious of the

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Speaker 1: ones before you. After dropping several lawyers Weinstein now has

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Speaker 1: a female defense attorney, and that sort of fits an

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Speaker 1: old troop. Does she have an advantage in cross examining

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Speaker 1: the women in this case in any respect? Well, the

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Speaker 1: optics can be slightly better. I mean, it doesn't look

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Speaker 1: good when you have men beating up on women making

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Speaker 1: accusations of sexual assault. It looks like the women are

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Speaker 1: being assaulted again. So just the optics might look better.

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Speaker 1: But I'm not sure how far that will carry her,

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Speaker 1: because at some point, if she gets tough in that examination,

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Speaker 1: what the jurors will hear and what they'll see are

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Speaker 1: the witnesses being attacked. Initially, I think that there's just

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Speaker 1: sort of this unconscious reaction by some people. Oh, if

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Speaker 1: a woman's representing an man, you know, there must be

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Speaker 1: a good reason. Why would she go out on a

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Speaker 1: limb to do that? But I think yours are pretty

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Speaker 1: sophisticated to know that it's not just about those optics.

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Speaker 1: Weinstein has released some emails that he and the alleged

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Speaker 1: rape victim exchanged for years after the attack, and his

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Speaker 1: lawyer said, these are women who have spent time with

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Speaker 1: him over periods of time, and I think we have

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Speaker 1: evidence to show that the time was nothing but positive

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Speaker 1: and favorable. Could those emails help him? But those emails,

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Speaker 1: frankly could help him if in fact the jury believed that,

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Speaker 1: they show that it was not a traumatic event, it

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Speaker 1: was consensual encounter, and that's why these women continued to

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Speaker 1: have contact with him. But again, I don't think it

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Speaker 1: would come as a big surprise to what jurors that

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Speaker 1: these women actually were forced into these contacts according to

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Speaker 1: the prosecution, and that they didn't have much choice to

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Speaker 1: stay in contact with him. They didn't have much choice

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Speaker 1: but to be nice to him because of the power differentiation. Here.

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Speaker 1: Here's a man who had tremendous power. That's how he

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Speaker 1: got what he wanted with them and continued to have

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Speaker 1: that contact. I've been talking to Professor Laurie Levinson of

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Speaker 1: Loyola Law School about the Harvey Weinstein trial, which is

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Speaker 1: now in jury selection. Laurie, it seems to me that

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Speaker 1: one of the impacts of the me too movement on

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Speaker 1: the trial is that jurors might better understand the power

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Speaker 1: dynamic that you were just discussing with regard to the

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Speaker 1: emails between Weinstein and one of his accusers. I do

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Speaker 1: think that that's been one of the great progress that's

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Speaker 1: come with Me Too movement, which is to sort of

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Speaker 1: give people a peek into the real world there that

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Speaker 1: women often do things that they don't want to do.

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Speaker 1: They don't complain, they go along with the game because

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Speaker 1: they didn't feel like they have much choice. And then

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Speaker 1: the more that came out of people in power and

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Speaker 1: in power that did this, the more sophisticated. I think

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Speaker 1: the populace became an understanding why women would say yes

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Speaker 1: when they don't really mean yes. You mentioned optics, and

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Speaker 1: on the first day of trial we saw the optics

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Speaker 1: of Harvey Weinstein going into court hobbling over a walker,

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Speaker 1: not looking like the Harvey Weinstein power broker of old.

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Speaker 1: Does that affect the jurors in anyway? It could. I

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Speaker 1: mean it's a defense one to try to exploit it

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Speaker 1: and say, you know, basically, he's just sort of a

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Speaker 1: feeble old man. He's not some type of sexual predator.

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Speaker 1: Just look at him. Then maybe some jurors would say

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Speaker 1: okay and even feel some sympathy. But again, I think

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Speaker 1: people are fairly sophisticated. I mean, one of the reasons

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Speaker 1: he looks like this is because of recent back surgery.

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Speaker 1: He didn't always look like this, and also, you know,

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Speaker 1: given his appearance, it might actually help the prosecution when

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Speaker 1: they argue this is not some suave guy that all

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Speaker 1: these women wanted to have a relationship with, and that

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Speaker 1: that would undercut the defense argument of consent. Now, Weinstein

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Speaker 1: is not expected to testify, and the jurors will be

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Speaker 1: told they can't consider that. But I always question whether

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Speaker 1: in the back of their minds, no matter what the

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Speaker 1: judge says, they do say, well, why didn't he testify? Well,

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Speaker 1: they won't say it that directly, but I do think

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Speaker 1: that we know that jurors sort of have in their mind,

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Speaker 1: you know, if he had something that would help him,

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Speaker 1: why wouldn't he let it be known? Like you said,

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Speaker 1: why wouldn't he testify? There's fisted enough not to say

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Speaker 1: that during jury deliberations, ordinarily because they've been instructed not

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Speaker 1: to do so. But how it factors into their individual

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Speaker 1: decision making, Yes, I do think that they still consider

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Speaker 1: that is there going to be a key moment in

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Speaker 1: the trial? Is there going to be testimony that the

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Speaker 1: trial sort of hangs on? Well, I think that the

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Speaker 1: key moments will be when the accusers, when the alleged

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Speaker 1: victims come forward and are actually on the witness stand,

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Speaker 1: and people not only hear what they have to say,

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Speaker 1: but see how they say it. That's how we often

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Speaker 1: evaluate who we believe in who we don't. So, um,

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Speaker 1: I think what is said from that witness stands going

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Speaker 1: to be key. Also, you know, ironically, even though it's

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Speaker 1: not evidence, how Harvey Weinstein responds while he's sitting in

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Speaker 1: that courtroom, we know that jurors will look at everything

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Speaker 1: in the courtroom. So if there's some type of unusual

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Speaker 1: response by win seeing during this trial, that could be

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Speaker 1: a key moment as well. And speaking about behavior in

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Speaker 1: the courtroom, what I find a little odd, and of

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Speaker 1: course there's no jury there yet. But the judge reprimanded

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Speaker 1: Weinstein for defying his earlier order banning him from texting

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Speaker 1: in the courtroom, saying he'd seen Weinstein with no fewer

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Speaker 1: than four cell phones in court on Tuesday morning and

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Speaker 1: warning him that he would be jailed if he flouted

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Speaker 1: the order again. Now, that's not how a defendant should

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Speaker 1: be behaving before a trial judge, is it. Well, you

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Speaker 1: certainly don't want to up set the judge. Um, the

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Speaker 1: judge has a lot of discretionary calls to make throughout

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Speaker 1: this trial, Jurors usually looked to the judge to sort

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Speaker 1: of take cues. How does the judge feel about this case? So,

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Speaker 1: getting the judge on the wrong sign this early in

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Speaker 1: the proceeding not a good thing to do. I want

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Speaker 1: to discuss for a moment the celebrity factor here, because

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Speaker 1: not only is a well known actress going to be

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Speaker 1: testifying as one of the so called prior bad Acts witnesses,

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Speaker 1: but some famous actresses say they're going to be sitting

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Speaker 1: in the courtroom. Also, the judge released a list of

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Speaker 1: possible witnesses, including actresses like Charlie's Farren. So how does

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Speaker 1: the celebrity factor play here? We know from prior cases

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Speaker 1: that there's quote a celebrity justice element. You know, which

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Speaker 1: way it goes depends on the case. But jurors realize

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Speaker 1: one thing, which is this is a really important case

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Speaker 1: and if it looks like there's a cheering section for

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Speaker 1: one side or the other, jurors will pick up on that. Now,

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Speaker 1: there's not supposed to be anything overtly done by the

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Speaker 1: people sitting in the trial, but it puts out a

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Speaker 1: pressure on the jurors. They know that their verdict will

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Speaker 1: be scrutinized, that there's a whole group out there, a constituency,

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Speaker 1: waiting to see how they rule. On Monday, as Weinstein

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Speaker 1: was about to go on trial, California state prosecutors charged

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Speaker 1: him with raping one woman and sexually assaulting another in

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Speaker 1: twenty third team. Here's the Los Angeles District Attorney, Jackie Lacey.

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Speaker 1: My office has charged Harvey Weinstein with sexually assaulting two

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Speaker 1: women in Los Angeles County. We believe the evidence will

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Speaker 1: show that the defendant used his power and influence to

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Speaker 1: gain access to his victims and then committed violent crimes

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Speaker 1: against them. If convicted has charged in the case, defendant

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Speaker 1: Weinstein faces up to twenty eight years in state prison.

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Speaker 1: My office will ask the court to set bail at

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Speaker 1: five million dollars. Once the defendant's case is completed in

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Speaker 1: New York, we expect him to appear in a courtroom

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Speaker 1: in Los Angeles County to face these charges. Is the

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Speaker 1: timing suspicious? Oh? I think Actually? The district attorney said,

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Speaker 1: I didn't want to do it earlier because I didn't

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Speaker 1: want to interfere with the trial in New York but

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Speaker 1: I do think it's to the advantage of the Los

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Speaker 1: Angeles prosecutors to sort of wait and see what happens

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Speaker 1: in New York. First of all, if they get an

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Speaker 1: fiction in New York, they'll be able to use some

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Speaker 1: of maybe those witnesses as the prior acts and showing

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Speaker 1: the scheme. It could even force some type of plea deal,

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Speaker 1: although I think at this point not much of an

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Speaker 1: offer would be made to Weinstein. But equally important, if

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Speaker 1: they lose the case in New York, the prosecutors in

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Speaker 1: Los Angeles can learn from any mistakes. So yes, going

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Speaker 1: second and something like this has its strategic advantages. So

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Speaker 1: for Weinstein, he'll be fighting one set of charges in court,

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Speaker 1: and Nose he has to face another set of charges

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Speaker 1: in another state, facing more jail time. Is there a

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Speaker 1: psychological factor here, I think so. I mean it just

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Speaker 1: wears him down. There's no light at the end of

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Speaker 1: the tunnel, you know, because even if he wins this one,

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Speaker 1: he's going to go through it all over again. And

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Speaker 1: it just becomes very apparent that nobody's backing down from this.

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Speaker 1: You know. When it initially started, I think there was

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Speaker 1: a thought that well, okay, there'll be a few will

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Speaker 1: swap them away, but eventually this will go away. Just

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Speaker 1: how long it will take to get through these proceedings

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Speaker 1: for the next five ten years of Harvey Weinstein's case,

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Speaker 1: it's all about these trials. Now, many people are expecting

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Speaker 1: a conviction here. But in the past, we've seen many cases,

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Speaker 1: and you and I both cover the O. J. Simpson

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Speaker 1: trial where you think there's going to be a conviction

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Speaker 1: but the jury quits. Oh. Absolutely, that's the nature of trials.

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Speaker 1: You know, expect the unexpected, especially in a high visibility case.

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Speaker 1: And as you mentioned, there's o J. There's Michael Jackson,

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Speaker 1: the Robert Blake, the list goes on. So I don't

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Speaker 1: think anybody should sort of say this is a done deal.

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Speaker 1: The lawyers before Harvard Wayne seemed very good lawyer, very prepared. Uh,

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Speaker 1: these are the types of cases where surprises can happen. Um,

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Speaker 1: we just don't know. But that's the nature of the

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Speaker 1: trial system. That's why we meet a trial, not just

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Speaker 1: an allegation, not just headlines. But we need a trial.

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Speaker 1: So in this case, what is a little unusual is

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Speaker 1: that the prosecution is not going to be calling police

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Speaker 1: to testify. Indeed, it may be that the defense calls

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Speaker 1: police to try to discredit the charges against Weinstein. Is

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Speaker 1: that a good move by the defense to try to

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Speaker 1: turn the police against the prosecution. The best defense in

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Speaker 1: some cases is a good offense, and that's kind of

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Speaker 1: what they've been trying to do in this case, which

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Speaker 1: is to challenge the investigation, challenge the police. So far

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Speaker 1: the judges shut them down, but I think that they'll

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Speaker 1: continue to try to bring out the problems and the investigation.

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Speaker 1: That was a key strategy. Frankly, in the O. J.

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Speaker 1: Simpson case, even when people thought there was a d

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Speaker 1: n A, they put the L A P. D on trial.

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Speaker 1: So I think it is a defense that can work

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Speaker 1: on the other and I think it's smart by the

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Speaker 1: prosecutors not to play into that. Say we're not putting

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Speaker 1: our police on We're going to put on the actual victims.

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Speaker 1: We're going to make this jury look these women in

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Speaker 1: the eye and then make their decision. Finally, Laurie, everyone says, well,

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Speaker 1: things have changed so much, But when you look at

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Speaker 1: this trial, and you know, most rape accusations still don't

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Speaker 1: make it to court. Are the legal challenges the same?

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Speaker 1: Do you still have? Uh? He said, she said in

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Speaker 1: the defense saying it was consensual. That is a basic

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Speaker 1: issue in these cases. Although I always teach my students,

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Speaker 1: he said, she said, doesn't mean you don't have a case.

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Speaker 1: It means that if the jury actually believes her there,

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Speaker 1: it should be a guilty verdict. So what prosecutors have

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Speaker 1: to do is learn that. The reason, he said, she

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Speaker 1: said cases were always so difficult is that people weren't

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Speaker 1: believing the victims. And to believe the victims, you need corroboration,

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Speaker 1: you need a motive, and you need credible witnesses, all

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Speaker 1: of which I presume they're putting together for this case.

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Speaker 1: Thanks so much, Laurie. That's Laurie Levins and a professor

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Speaker 1: at Loyola Law School. And that's it for this edition

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Speaker 1: of Bloomberg Law. Remember you can listen to all the

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Speaker 1: latest legal topics in the news anytime on our Bloomberg

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Speaker 1: Law Podcast. You can find them on iTunes, SoundCloud, or

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Speaker 1: at Bloomberg dot com slash podcast Slash Law. I'm June Grosso.

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Speaker 1: Thanks so much for listening, and remember to tune into

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