Unringing the bell and removing ink from milk are harder than keeping the damaging evidence out of trial in the first place- Taking a page from the reversal of Harvey Weinstein’s rape conviction

Unringing the bell and removing ink from milk should not be a Virginia criminal defendant’s burden instead of keeping damaging inadmissible evidence out of trial in the first place. As a Fairfax criminal lawyer, I know the sexist legal history that repeatedly elevated men’s rights above women’s rights. At the same time, modern criminal defendant’s must not suffer for that. In that regard, the appellate court that recently reversed Harvey Weinstein’s rape and sexual assault convictions (see the full reversing opinion here, with dissents). In the annals of public opinion, Weinstein is widely regarded at best as a monstrous serial rapist who silenced a slew of victims with his wealth and industrial power to elevate and destroy their careers, but who ultimately underlined the saying of the bigger they are, the harder they fall. Fortunately for him and all criminal defendants, the law does not except them in favor of the court of public opinion.

Why Harvey Weinstein’s rape and sexual assault conviction unringing reversal is relevant to Virginia sexual assault defendants

Likely to be retried, Weinstein got his conviction overturned because his trial judge allowed trial testimony of a series of his alleged sexual assault victims who were not part of the indictment against him, where no unringing the bell would have worked with the jury. In overturning Weinstein’s conviction — accompanied by sharp dissenting votes — his appellate court says: “In sum, we conclude that the testimony from the Molineux Witnesses [witnesses to other crimes of the defendant] was unnecessary to establish defendant’s intent and served only to establish defendant’s propensity to commit the crimes charged. Neither the prosecution nor the trial court ‘identif[ied] some issue, other than mere criminal propensity, to which the evidence is relevant’ … and therefore its admission during the prosecution’s case-in-chief was error.” This entire opinion reversing Weinstein’s conviction is monumentally helpful to criminal defendants, and needs to be read by all Virginia trial and appellate judges when considering the Virginia Rule of Evidence 2:204(b), which is similar to Federal Rule of Evidence 414: “Except as provided in Rule 2:413 or by statute, evidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith. However, if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
accident, or if they are part of a common scheme or plan.” Va. S. Ct. R. 2:204(b).

Jurors are humans, and cannot ignore the rung bell or the ink in the milk merely by being ordered to do just that

Don’t think of a purple vomiting elephant. Now, you are going to have that disgusting image on your mind for awhile. A Virginia felony defendant already will battle against their jurors’ initial reactions to being told what crime the defendant is accused of, let alone the harsh evidence that is likely to follow. When the trial judge allows the prosecuting assistant commonwealth’s attorney / prosecutor to add evidence of crimes and other bad acts by defendant that are not even in the indictment, that risks more of a train wreck for the defendant. When a Virginia criminal defense lawyer signs up for this career, the lawyer has to be all in for the defendant, no matter how guilty or even file the lawyer may think is their presumed-innocent or convicted client, and not matter the gender-equality / gender protection / assault protection rights that are at stake in the case. As a Fairfax criminal lawyer, I know that criminal defense lawyers must be like eagle hawks working through pretrial motions, trial briefs, objections and explanations of objections (with printouts of the relevant law and evidence at the ready) to keep out defense-damaging evidence in the first place rather than struggling later to be unringing the bell or to extract the ink out of the milk.

Judges are generalists often with a slew of law and data to learn for even one felony trial- A great criminal defense lawyer persuades them with that in mind

Judges and jurors have the capacity of doing great harm and great good, including keeping out impermissible evidence against a criminal defendant rather than making the defense lawyer need to engage in unringing the bell. A great criminal defense lawyer persuades them not by brute force, shrill tone of voice, pushiness, anger nor upset. Instead, the able advocate understands the people the lawyer is working to persuade, engages them from where they are, empowers them without manipulation them nor insulting their intelligence, and readies for both advances and setbacks in their persuasion efforts.

Patience and perseverance are essential for Virginia criminal defendants

Patience and perseverance are essential for Virginia criminal defendants and their lawyers. The widely-vilified Weinstein found and paid (yes, well-invested money can talk in court and beyond) a team of lawyers who worked with him through the agony of defeat at trial after working at bell unringing, and his first appeal, to finally win on his appeal to the next level. Weinstein’s conviction reversal will likely be vilified by many, as may be the appellate judges who voted for his reversal and maybe his lawyers as well, even though he will likely be retried and may well get convicted again. While I know that my work as a Fairfax criminal lawyer is on the side of the angels, that does not mean that none of my clients have acted as the opposite of being angels, nor does it mean that none of my clients whom I get acquitted or sprung from lengthy incarceration are going to recidivate. It does mean that when I am defending my clients, no rubber-stamped harshness will take place against my clients.

Fairfax criminal lawyer Jonathan Katz takes the bull by the horns when defending you against Virginia DUI, felony and criminal prosecutions. You are bound to know that by the time you finish your initial free in-person confidential consultation with Jon Katz about your court-pending case. Call 703-383-1100 (or contact us at info@BeatTheProsecution.com or text us at 571-406-7268) to meet with Jon Katz, Usually he can meet with you as early as the day you call or else the next business day.