Darrell Brooks convicted; Jury finds Kevin Spacey not liable; Weinstein’s defense — TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Fatima Silva joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss Darrell Brooks being convicted for the Waukesha Christmas parade attack, the jury’s swift verdict in the sex abuse lawsuit facing Kevin Spacey, witness testimony in Danny Masterson’s trial, and an aggressive approach taken by Harvey Weinstein’s defense against his accusers.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[0:00:11]
Hello and welcome to True Crime Daily’s The Sidebar, taking you inside the courtrooms of high profile and notorious cases from across the country. I'm your host Joshua Ritter. I'm a criminal defense lawyer, based here in Los Angeles and previously an L.A. County Prosecutor for nearly a decade. We are recording this on Thursday, October 27th, 2022.
In this week's episode we have breaking news in two cases. First, Darrell Brooks is found guilty of intentional homicide after choosing to act as his own counsel for the Waukesha Christmas Parade massacre that left six dead. As well as Kevin Spacey has been found not liable for a sexual battery claim in New York. Also, we take a look at emotional testimony from Danny Masterson’s accusers as his sexual assault trial continues in Los Angeles. And finally, Harvey Weinstein's defense taking an aggressive tactic to discredit his alleged victims claims of sexual misconduct.
Today, we are joined by Fatima Silva, a Bay Area criminal defense attorney, experienced trial litigator and co-host of Investigation Discovery’s Reasonable Doubt where she helps families of the wrongfully convicted. Fatima, welcome.
Fatima Silva:
[0:01:20]
Thanks for having me again. Good to be back.
Joshua Ritter:
[0:01:22]
Yeah. Before we jump in, for listeners who don't know, can you tell us a little bit about your current practice and what you've been up to lately?
Fatima Silva:
[0:01:31]
Well, I've been for over a decade now with a private practice criminal defense here in the San Francisco Bay area. I handle all kinds of cases. I have really enjoyed it. I actually did a little bit of civil back in the day as well, quickly realized. That's a total different breed and it's actually a little too contentious for me.
Joshua Ritter:
[0:01:54]
It's true.
Fatima Silva:
[0:01:55]
Civil attorneys are brutal. So, I've enjoyed doing criminal defense for many years now. And then since 2017, have been a co-host along with Detective Chris Anderson of Reasonable Doubt, which you know is a show that we reinvestigate old cases to see if there was a wrongful conviction.
And now, Chris and I have a new podcast, Crime and Cookie Juice and we're trying to do what you all do. Have fun talking about cases in the headlines and going a little more in depth on some of the cases we covered on the show. Because as you know, when you only have a certain amount of time to cover cases, you can't get all the detail in. So, I'm a little bit of everywhere, you know. I’m a mom of a toddler, and so that is probably my hardest job.
Joshua Ritter:
[0:02:44]
That's exciting stuff where we will look forward to hearing and seeing that podcast. And it's so funny that you mentioned that about civil work as compared to criminal work. I am starting to segue a little bit more into civil work and it is remarkable how easily everybody gets along in the criminal world and then you step over to the civil world. And when you’re dealing with money, it can become very contentious, is the way I'll put it.
Fatima Silva:
[0:03:11]
People are petty. And I'm just like, oh my gosh, all my years in criminal defense, I have not fought with anybody like that. I agree with you.
Joshua Ritter:
[0:03:18]
Yeah, and you're talking about putting people away for the rest of their life, you know, really serious issues. And when it comes to a few thousand bucks, people are willing to, you know, go at each other's throats. In any case –
Fatima Silva:
[0:03:28]
Well, good luck to you.
Joshua Ritter:
[0:03:30]
Thank you very much. Let's move right into Madison, Wisconsin. The jury has convicted Darrell Brooks of six counts of first-degree intentional homicide for the six victims who lost their lives after Brooks crashed his SUV into parade goers last November. He faces a mandatory life sentence for each of the convictions.
The prosecution alleged in their closing arguments that Brooks’ SUV reached speeds of nearly 30 miles an hour as he hit 68 people. Brooks chose to represent himself in the trial, withdrawing a plea of not guilty by mental disease that was previously filed by his public defender's before they were dismissed from the trial. During the trial, Brooks was ejected from the court multiple times for outbursts and forced to view the proceedings via video link from another room. We have some of that footage of his antics in court that we can show you now.
Judge Jennifer Dorow:
[0:04:18]
Madam Clerk, please have the jury brought out.
Darrell Brooks:
[0:04:20]
Well, take me to the next court room then. Take me to the next courtroom because you're not going to override my constitutional rights just because you feel like you can, and you don't have no lawful law to do that. We all have constitutional rights, and you cannot trample on though.
Judge Jennifer Dorow:
[0:04:34]
Mr. Brooks, what you are raising are essentially issues that you can raise on appeal.
Darrell Brooks:
[0:04:39]
No, I'm raising them now because they need to be on the record now because you won't allow me to make the record as I've let you do. You even went so far as to mute me which you can't even –
Judge Jennifer Dorow:
[0:04:48]
Mr. Brooks, the jury is coming out.
Darrell Brooks:
[0:04:49]
There's no lawful law to say that you can even mute me.
Fatima Silva:
[0:04:51]
I'm advising you to be quiet. They're coming out.
Darrell Brooks:
[0:04:54]
Your Honor, this Illinois versus Allen say that you can utilize the mute button? It does not.
Judge Jennifer Dorow:
[0:05:01]
Mr. Brooks, when that door opens, I expect you to be quiet or you will forfeit your right to be present.
Darrell Brooks:
[0:05:04]
So, Your – and I expect for you to answer questions as a public servant, Your Honor. You’re a public servant.
Judge Jennifer Dorow:
[0:05:10]
The jury is coming in.
Darrell Brooks:
[0:05:11]
You're supposed to serve the people.
Clerk:
[0:05:13]
All rise.
Darrell Brooks:
[0:05:13]
Take me to the next court room. Please take me to the next court room.
Joshua Ritter:
[0:05:17]
So, Fatima, pretty incredible stuff, the kind of disruptions he was causing and distractions in court, but it's important to not lose sight that this – the incredible loss of life here and in what's a very straightforward case I think, even regardless of who's representing him, this was a very I think straightforward case like I said, for the prosecution. Was the verdict in this case, it's a four count conclusion or do you think there was anything his defense attorneys, if he had them, could have done?
Fatima Silva:
[0:05:49]
Oh, you know, that's really difficult to say. You – one, we know that you should never represent yourself. It is never a good idea. I would never do it. They – what's the old saying? You represent yourself , you have a fool for a lawyer. it's just never a good idea.
And he obviously, he has some issues. It's interesting that he did withdraw the not guilty plea based on which is essentially insanity there in Wisconsin. It is a high – that's a high burden to prove. It's extremely difficult to get psychologists to qualify you as insane. They would – that would basically be saying he didn't know what he was doing when he. drove into the crowd. And we know that there's – they say that he drove out of the crowd at a certain point so he's aware.
So, it would have been really difficult to prove that. But the issue is in all these antics we're seeing, competency can be challenged later. I'm afraid that might come back on appeal because, you know, even though your defense attorney can raise it at any time, the statue allows a judge to raise it in court and a lot of his behavior suggests that he's, you know, just not in the right frame of mind.
So, it does make me wonder, at a certain point, is he going to have a challenge for this? Should they have stopped taking a break and done a competency hearing because that could have worked in his favor, if it did come back that he doesn't stand competent, you know, to face this trial. But he chose to go forward on his own, and he made a lot of poor choices in his behavior and that absolutely is going to work against you.
Jurors -- the jury came back fairly quickly. They don't – they just don't like seeing a defendant who's aggressive. I mean, you're charged with a violent crime, a heinous crime, and now you're getting aggressive with the judge, your, you know, you behavior is erratic. Basically, they're saying, okay, well, you're capable of committing this crime. You never want that. You know, as a defense attorney, we want our client to sit there and make no expressions, right? Don't cry, don't make an upset face, don't stare at the jurors, don't stare down the judge. He made all the wrong moves in this case. So, you know, but was justice served? A jury felt like they made the right choice, and like you said, there was a lot of evidence that he committed this awful, awful crime.
Joshua Ritter:
[0:08:22]
Yeah, yeah. I think the judge was in a really difficult spot here. And for people to understand that too, this isn't just about, oh, he wanted to represent himself, so the judge allowed it. He's got a constitutional right to do that, so she's weighing on one hand his constitutional right to represent himself against what kind of appellate issues as you bring up is he going to create by these antics and by the way that he represents himself?
So, she's got to, one, make sure that if there is a conviction that it's rock solid. It doesn’t turn into another trial down the road and revictimize everybody else. But at the same time, you know, keep him in line and respect his constitutional rights as a defendant. I thought she did a really remarkable job. I thought she showed a remarkable amount of patience.
Fatima Silva:
[0:09:09]
I agree.
Joshua Ritter:
[0:09:12]
And one thing, you brought up that all of this, you know, could have called into question his competency. But one thing I saw him doing, he obviously doesn't understand the law, but he was making objections that were not entirely without law. You know what I'm saying? He would say – he would ask for the grounds of why an objection was sustained. And then he would ask for the judge to make a factual finding and to put something on the record. A lot of stuff that trial attorneys do.
And it was obvious to me, at least I think, it sounds like he was, you know, talking to a lot of jailhouse attorneys. You know, meaning other inmates giving him advice, and he seemed to have this kind of script in front of him that he was reading from that he kept on asking the judge to make certain findings and make a certain record. And I wonder if that will work against any kind of competency claim on appeal to say, listen, you may have not have been the greatest attorney, but you certainly did represent yourself. Strategically, we can't, you know, really question that if you should have made a different move or presented a different defense. But as far as trying to protect your own rights, you did a fairly adequate job of it. What do you think?
Fatima Silva:
[0:10:23]
I agree, I agree. I think it would be difficult to – I think he's going to have a difficult time improving he's not competent. You can tell there are strategic things that he does. He's aware of what he's doing. He's just angry, you know, he's really angry, and that's a lot of what led to this crime was violence. There was a domestic violence issue beforehand. I mean he has a lot of anger issues.
Does that mean he's insane? Does that mean he has a mental disease? Not under the law, not according to the law necessarily. And so, I absolutely think he will still try to raise it on appeal. But whether that actually, whether he actually wins, I think would be difficult based on his behavior. He did understand a lot of what was happening. He clearly was antagonizing. I also think the judge did a great job.
Listen, no judge wants to have a defendant represent themselves, they do not like it. So, it's not like they said okay, you want to represent yourself, let the circus begin. Absolutely not. That's what happened, this courtroom turned into a circus. It is frustrating for everyone involved, not just for the judge and the prosecutor trying to do their job, but for the victims’ family who has to sit there and witness all of this, right.
But at the end of the day, defendant is due his right, you know, his time in court. And I think she did a great job with often times, she – you could tell it was frustrating. She probably just want to get rid of him, but instead she would just take him to a separate courtroom. She’d ask him the same question over and over and over again, right? Do you have any issue with these jury instructions please. And a lot of judges don't have that patience initially. So, she was keeping in mind a mistrial or appeal for sure.
Joshua Ritter:
[0:12:08]
Yeah yeah, she definitely deserves a little vacation after all of this. One more point on this and if you have experience with mental defenses, please jump in it. They are very rare to bring in court. But you made a point about there's a difference between what we might consider somebody to be unstable or somebody to even be insane, that, you know, we use that term broadly to have kind of mental problems, whatever you, however you want to categorize it.
And what the law, and each state is different, but generally they all follow this same kind of pattern as far as whether or not that presents defense for yourself. And he would have to show that he was unable to appreciate the consequences of his actions.
Fatima Silva:
[0:12:53]
Right.
Joshua Ritter:
[0:12:54]
And in this case I wonder if they were using it not to say, you know, find him insane at the time, but find that he was so under the kind of mental distress that he wasn't able to form the requisite intent for premeditation, and for first degree murder. And if that's what his defensive team originally was going for, what do you think?
Fatima Silva:
[0:13:18]
I really don't know. I would think that's what they would have to go for because there's – once again, it's just extremely difficult to get insanity. And based on all of his other actions and witness statements, that's going to be difficult to prove considering at a certain point, he does turn off and he's evading and he goes to somebody's house and he's trying to get away. All of those things are showing, you know he comes too so –
Joshua Ritter:
[0:13:46]
Consciousness of guilt, yeah.
Fatima Silva:
[0:13:48]
Absolutely. So yes, it would be all the malice aforethought and intention prior to that they were probably trying to mitigate. And in my opinion, he should have stayed with his defense attorneys, with the public defenders.
Joshua Ritter:
[0:14:03]
Yeah, I agree. I don't know if the results would have been all that much different, but it certainly would have been less difficult for the victims to have suffered through this whole thing, but I'm glad that they got justice in the end.
All right, switching gears now to Manhattan, New York after just 90 minutes of deliberation, a Manhattan jury found actor Kevin Spacey not liable in the sexual battery claim levelled by Star Trek Discovery star Anthony Rapp. Rapp alleged that Spacey assaulted him at a party in 1986 when Rapp was just 14 years old and Spacey was 26.
Rapp claimed that Spacey climbed on top of the younger man in an encounter wrap recalled as incredibly frightening and very alarming. Those are his words. Anthony Rapp was one of the most prominent figures to allege sexual misconduct against Spacey in the early rise of the Me Too Movement.
You remember, Fatima, this was one of the first allegations against a prominent figure outside of Harvey Weinstein, who we're going to talk about a little bit later. Under oath, Spacey flat out denied the allegations. Rapp’s initial lawsuit cited three claims including assault, battery, and emotional distress.
However, interestingly, the judge dismissed the assault claim ruling that it was not covered by the New York’s Child Victims Act, which allows victims to make claims that would normally fall outside of the State statute of limitations. And during the trial, the judge also dismissed the emotional distress claim, citing that it repeats and realleges the allegation of battery.
Okay. I know we're dealing with the civil world here, so different standard of proof. We're not talking about guilt, we're talking about liability, but are you surprised by how swift the verdict was delivered by the jury in this case?
Fatima Silva:
[0:15:53]
Not really. It did sound – which is sad but, you know, Anthony Rapp, I'm a big fan of Anthony Rapp prior to all this. He was one of the original cast of Rent. He's amazing. And it's true, a very, you know sad story, something that happened when he was 14 years old.
From what I understand, I didn't, you know, I didn't cover it extensively or read on a lot of it, but it just seemed like there was very little evidence. We're talking, you know, over 20 years ago and actually, 30 years ago, and it's an incident that's fairly isolated, right? There's not – unlike a lot of these other cases coming forward, there's multiple victims and often times in one trial. This one is just Anthony Rapp against, you know, Kevin Spacey.
And so, when you have just that one victim and it was so long ago and there's no other proof, what it comes down to in these kinds of cases ultimately is, he said, she said, he said, he said. If that's the only evidence you have, ultimately a jury is going to be stuck and they're going to have to say okay, is there any evidence whatsoever that this even occurred?
And from what I recall is the defense did a really good job at showing that Rapp was kind of mixing facts of this case, or they were alleging he was mixing up the facts with an actual play he was in where something similar happened. And they were really good at using okay, what was – what did the room look like, right? You've got to get down to these things because you have to corroborate what this person is saying.
How can you do that if nobody else was present? Well, what was the space like? What was he wearing? What did he look like? And one of the things was the description of the room, right? He's describing it almost as a separate room, a bedroom, when it's actually a studio. Now, realistically, you're 14 years old, there's a lot going on. Are you going to remember that?
I think that the defense did a good job at just pointing out those inconsistencies and raising a lot of not just doubt. Obviously, this is a civil case, so the burden is lower, just preponderance of the evidence. Was there anything and the jury still felt like there's just nothing here to show that this could have happened. So, I think when they got back there, the – it wasn't hard for them to make that decision because if they just didn't find him credible then what else do they have to work with?
Joshua Ritter:
[0:18:25]
Yeah, yeah. This – you make several good points that I wanted to kind of touch on. But the first is even with preponderance, you still have to prove more likely than not, and in this case like you said, it really comes down to a credibility call. This case wasn't filed criminally, never would be filed criminally because there's not enough, you know, filing standards by DA’s offices. You have to show some sort of corroboration of an allegation. And here all you have is the allegation, as you point out, very, very old. And you have no other evidence that we would expect to see in cases today.
In cases in modern, you know, recent modern history, you have things like, you know, cell phone evidence or text messages that may have been exchanged between the two, or you know, video surveillance of somebody leaving the apartment or anything like that. Here, as far as I understood, you have none of that, so it did come down to a credibility call. And even with that lower standard, you wonder can cases like this ever really get off the ground and it sounds like from that short verdict from the jury, they did not believe so.
What about the judge though? Excluded one count. I guess it wasn't that he determined it. There wasn't evidence to support it, but he said it, you know, it falls outside of what would be allowed. And then he dismissed one count during trial. Do you think that may have given any kind of indication to the jury about his thoughts on the case?
Fatima Silva:
[0:19:54]
Not necessarily. I think if both are – the claim is being repeated involved and the evidence and everything is the same, if there's a battery, then they're going to find the battery, right? So, I think the judge probably did the best job at describing what is within the law, what’s essential to the case and what's not. And oftentimes, judges do do that, right. You're in the middle of a case, you've heard all the evidence now, you're going to throw out a claim that's not going to – it's not – it's no longer valid, especially when somebody has the claim of battery, which it has all the same elements.
Joshua Ritter:
[0:20:31]
Yeah, yeah. One last point on this. It is funny how we are kind of coming full circle on the Me Too Movement in the sense that, you know, Spacey was kind of one of the first really big names outside of Weinstein to be brought up when all of these allegations started to surface. And now we have Weinstein already been convicted in New York, facing further criminal charges in Los Angeles.
And then you have people like Spacey who has never been convicted and now found not liable in this case. I'll throw into this mix the, what we all witnessed happening with Amber Heard and Johnny Depp, and you're starting to see these cases kind of reckon themselves in a sense that you know in some cases victims are either not being believed or feeling like there's not enough proof for what they're alleging. And in other cases, we'll see what happens with Masterson in Weinstein. But do you – what effect do you think this has on the overall movement? I know that's a big question and above everybody’s pay grade, but I was curious to hear your thoughts about that?
Fatima Silva:
[0:21:37]
You know, it's really interesting because – and I want to make it clear, right? As a defense attorney and as a female, when the Me Too Movement started, obviously I am all for believing women and believing men, believing anybody who is coming forward claiming they were sexually assaulted, giving them the benefit of the doubt.
But ultimately, you need to look at the evidence, you need to – unfortunately, there needs to be corroborating evidence. This is the real world and a part of law, that's what you're going to need. This is somebody’s life, reputation, career, everything on the line. So, what was very scary in the early days was just how quickly people were being cancelled without, you know, without even being in a court of law yet, right? It was just the media, trial by media.
And I'm sure there are plenty of people who committed these crimes throughout the years and took advantage of their power like Harvey Weinstein. But there were – there's probably many also who perhaps people have vendettas, perhaps people just didn't like them, or we've seen it happen where there are regrets, even though it may have been consensual. And so, you got to be very careful.
I think what's happening is that is finally reconciling and we're realizing listen, ultimately, these claims, they're very serious, they need to be taken very serious. And as much as we want to believe you, and we want you to come forward, we also need to understand that the consequences are going to affect somebody's life harshly. And so, you need to also make sure that you have all the evidence available.
So, what's sad is a lot of people have come forward. And they have found that because it is so old, then they don't have any corroborating evidence, they're seeing what's happening in cases like Kevin Spacey's, right. If a victim comes forward, whether it happened or not, if this is how quickly a jury is coming back, even with a lower standard of proof, right? And they're saying, well, it just didn't happen, you're going to find a lot more victims are not coming forward. They're not going to want to face this. They're not going to want to go through the trials just to be told, well, you didn't have enough information.
And when it is a case, like you said that's as old as the 80s, the 90s, what else do you have except your word? But I think what's happening is, which should have been happening, which is let's give them their day in court, let's hear all the evidence, and then we can make our decision rather than outright, you know, just saying, hey, this person of take them off the air, take this from them, their book deal, everything else, right. That is unfair. Everybody deserves their day in court.
So, I think that's starting to happen. We're starting to realize that, but I also do think it's going to have the opposite effect and more victims are not going to come forward now.
Joshua Ritter:
[0:24:30]
Yeah. It's a very difficult question. There's no simple answers. I think that was very well put. So, we'll continue to kind of watch how these cases really figure themselves out. And this is not the end for Spacey as he continues to face trouble including criminal charges in England. That case is set for trial in 2023, so we will continue to watch that case as well closely.
Now, turning to our ongoing dueling sexual assault trials in Los Angeles. First, all three of Danny Masterson’s accusers have taken the stand in the actor sexual assault trial. Masterson faces three counts of forcible rape and could spend 45 years to life if convicted. Accusers and the prosecution have all repeatedly brought up the role of Scientology in Masterson’s life, as well as their own.
All three victims were members of the church during the alleged assaults. In addition to the criminal charges filed against Masterson, the accusers have also filed civil suits against Masterson and the church. All three women detailed the hold that the church had over them, with the women trying to come forward about their allegations to church officials years before they ever went to the police.
One accuser identified as Christina B appeared to have a panic attack on the stand while detailing the retaliation she faced from Scientology for her allegations. The church placed the accuser in a “Ethics Program” and warned her that she could be excommunicated and labelled as a suppressive person to others in the religion.
All right. Fatima, similar to the Spacey case, we have a very old accusation with very little corroborating evidence but with one big difference in this case. And that is that there are three separate women making nearly identical allegations. Do you think that's the difference maker here? I know we're dealing with civil to criminal, but do you think that could change things here?
Fatima Silva:
[0:26:23]
Oh yeah, it's a game changer for sure. As a defense attorney, you never want multiple victims, and you never want the same kind of story line. You know, the church being involved, trying to suppress everything that happened. That does not look good for Mr. Masterson at all.
Joshua Ritter:
[0:26:39]
Yeah. Scientology, we were curious before this trial started what role it would take in this role. And it's apparently taken a very big role, and that's not surprising because it is the biggest argument that the prosecution has as to why there was this big delay, which is a major hurdle for the prosecution, and they're trying to show that this was a very oppressive environment, and that's why they didn't come forward.
But now, realizing that these victims have civil lawsuits against the church and there's a financial interest. I remember when I was a DA, whenever we would have a victim in a case that we found out had a lawsuit against the defendant, it always cause trouble for us because we always knew that was going to be an issue that, hey, they're not testifying just because they want to get to the truth, just because they've been victimized, but they have a huge financial interest in all of this and want to find a conviction because of that motivation, not because they were actually wrong. And I'm curious, is there a way for the defense to use that similarly in this case?
Fatima Silva:
[0:27:42]
Absolutely. As a defense attorney, you want to exploit that, always, right. Any witness who takes the stand, who possibly has a financial incentive outside of the, you know, this case, you want to point that out. You want to point that out as biased, reason to lie, credibility issues. You absolutely want to use that.
I will say that today, we see it more and more, jurors, as you know citizens of the United States, they are seeing more and more anytime we do have a criminal case and it's against somebody who has money, who was part of an organization, where other individuals above them could be held liable. We are a lawsuit kind of country. It is happening big time. You get an attorney, and they are going to go after it.
So, I think the prosecution can simply point out that you know if the church had a role in this, then they should be held liable outside of Criminal Court as file and that – keep that separate. That does not go to the credibility of the witnesses. They're going to say everything they have to say to show that the witnesses are basically being represented by individuals who have their best interests in mind and want to steer them in that direction, right? And the defense wants to point out how do we know, how do we know that they're just, you know, that this really happened to them now, that they have all this, you know, incentive to gain financially. And we're talking big numbers. The Church of Scientology has a lot of money.
Joshua Ritter:
[0:29:03]
Absolutely, yeah.
Fatima Silva:
[0:29:04]
This claim is huge, but it's something you have seen. You've seen it with the Catholic churches. In a lot of the criminal cases, there's also been civil lawsuits on the side against the church. We know that the church does play a big role to these people and that it is possible that these women at a young age were easily influenced. When the church is your life, and they control everything, of course, you're not going to want to lose your family, your friends, everything you believe in.
So, I think the prosecution is going to have a tough job no matter what, but the defense obviously has some good points to raise with how long ago it was, how they're barely coming forward, how they were adults when it happened, they weren't children. It's not that these are just suppress memories that are suddenly coming forward and they have a big incentive too in the civil case.
Joshua Ritter:
[0:29:57]
Yeah, yeah. Well, this trial at least looks like it might be nearing an end, so we might see how that all turns out. Weinstein, I think it's going to go on for quite a bit more time, but it sounds like the prosecution might have gotten through most of their evidence in the Masterson case. One more question on this. And it kind of deals with all the cases we're talking about today, but I was down at the Criminal Court building where both of these trials are taking place. They're on the same floor on opposite sides of the hallway from each other, which is pretty remarkable. But I was able to peek in on both of these cases, and the courtroom is absolutely packed.
Now, cameras are not allowed inside, but you know this, most trials – I've done trial – so many trials that it's – everybody who's participating in the trial and an otherwise empty courtroom, nobody’s down there watching. And then you have a trial where it's just packed and it's obvious that there's an incredible amount of attention and interests in the trial. Even without the cameras, what effect do you think that has on jurors? Do you think they're cognizant of that and do they behave differently in your experience?
Fatima Silva:
[0:31:05]
Yeah, absolutely. It's well known the pressure is on when you are a juror in a case that has high publicity. You know, the courtroom is packed. You – it makes the difference on what side is packed too, right. Whether you're seeing a lot of the victims’ family and they're expressing emotional pain when they see things, that influences
Joshua Ritter:
[0:31:26]
Excellent point.
Fatima Silva:
[0:31:27]
If it is the defendant’s family and, you know, how they're looking. If they're looking somber, if they're looking, you know, at the judge, and they're making certain expressions. The jury is watching. They're not supposed to. They're not supposed to consider those things. They're not supposed to consider, you know, the defendant’s expressions, but they're watching, they're seeing.
And the more people, the more pressure they have, and they're going to consider that when they go back into that deliberation room. You just hope that when they do get back there, they're empowered by one another and say, okay, let's just forget all of that and let's look at the evidence, that is the goal in mind. But they're human beings, and I think we're all influenced if, you know, for performing for one person or we're performing for a hundred, there's a difference.
Joshua Ritter:
[0:32:13]
Yeah. No, I completely agree with you. And it's something I don't know how we avoid. I think it's -- the attorneys are wise to kind of address it sometimes. But if people are, like you said, human nature kicks in and people just start to behave differently when they know a lot of eyes inside the courtroom and outside the courtroom are watching everything that takes place.
So, moving down the hallway. Harvey Weinstein’s trial is underway with his alleged victims as some of the first witnesses called to take the stand in the former mogul’s sexual assault trial. Weinstein faces 11 counts, including rape and sexual assault involving five women. And the defense’s opening statements, they sought to humanize Weinstein, painting him as a victim of the Me Too Movement, while trying to reason that “transactional sex”, was part of the industry.
Weinstein's defense attacked the lack of DNA or forensic evidence in the allegations and zeroed in on Jane Doe number four that we now know to be Jennifer Siebel Newsom calling her a Hollywood wannabe and alleging that if she didn't have a place in politics today, she would just be “another bimbo” who slept with Harvey Weinstein to get ahead. Strong words, Fatima. Do you think this approach by the defense will be persuasive to a jury?
Fatima Silva:
[0:33:33]
It depends on what the jury makeup is. And I I'd be curious to know what that is, but it really does. If – people’s first reaction is if it's women, oh, that's just going to, that's – they'll be appalled by that. But really –
Joshua Ritter:
[0:33:52]
Just to jump in, I think it's a 9-3 men-to-women split. If I'm wrong, I'll correct myself at the end, but I think that's the split.
Fatima Silva:
[0:34:02]
Based on that jury makeup up, I would say this is probably the best strategy the defense has, to be honest. I don't know what other strategies they could have had. I'm really surprised it's still right there in L.A. I don't know what kind of jury they found that has not been poisoned whatsoever by anything they've seen in the media, doesn't know anything about Harvey Weinstein, and all the other allegations. So that already is an issue.
But I do think as defense attorney, that is probably the strategy I would use. You have to now change the narrative from him being this abuser, to the fact that a lot of women did in fact move up in their careers after having these, you know, encounters with him. And I'm sure a lot of them regret that, especially the ones who you know were assaulted by him and did experience major trauma as a result of that.
But the reality is a lot of women did benefit from these things. So, to change the narrative now to almost like, well, he got something out of it and they got something out of it, and there was just an understanding, it's transactional, that could possibly work for him if they can show that these women did, in all the ways they did, benefit.
Joshua Ritter:
[0:35:28]
Yeah. You might be right. It might be their only defense, right, their only way of strategizing this could be to go as hard as they are after these victims. It's funny that you ask for the breakdown of the jury. And it says something I think kind of about this cultural shift that we're all going to because I think traditionally people might say, well, if you have more men on that jury than women, you're probably going to have an easier time of explaining how this, you know, transactional sex took place and that, you know, everybody, you know, it was all consensual because everybody was getting something out of it.
I recently did a mock trial involving a sexual assault case where we had a focus group of jurors that were presented with arguments. And it was funny to me because, and I'm not saying that's how everybody ended up voting, but when they were first initially talking about it, all of the men in the focus groups made a big show of explaining to the rest of the group how they didn't believe, they thought this behavior was very wrong. And they wanted to make it clear that they're in no way condoning this behavior.
Now, I don't know if that overall would affect their verdict, but it is funny how men seem to be very conscientious of making it known nowadays that they do not condone this type of behavior and I don't know if that will see itself into the way that they view the evidence in this case. But I wonder, I'm curious too how they were able to find this jury and I'm very curious to find out if we can one day the makeup of the people beyond just their you know, male and female.
The first witness to take the stand, though, Fatima, was Jane Doe number one and she broke down severely on the stand on the first day of testimony that the judge had to end early. How does the defense attorney cross examine a person in this fragile estate? And what do you think about the optics of a male defense attorney cross examining a female victim?
Fatima Silva:
[0:37:31]
I don't like it personally. I've worked in cases when I was part of a firm, and you know had colleagues that were males. And we had cases such as this, I would be the one to handle that. It is different when you're watching a man. it also depends on his demeanor, right? If you are a male and you're doing it, you do want to be gentle and you do want to point out, listen, I know these things are difficult to express and talk about, but you know, we're really – we want to focus on the evidence here. So, we want to focus – I just need you to focus on this one thing. You know, there's a way to do it because if you're too gentle and too sympathetic, you almost seem like you're believing this person.
So, you want to point out that I understand being here is probably hard for you, and I'm asking you these tough questions, but this – you understand what you brought this defendant here for, right? You understand that we're in a court of law and that you do need to prove these things so I do have to ask you the tough questions because a man's life is, you know, on the line.
And you kind of do it in that way so that the jury says, yeah, yeah, wait, you know. I mean, I know I feel bad for her, but this is important for the defendant. They do – you do have to get it together. But of course, that's even better if it is a woman, right? And you don't want to come across as plain, but you just want to come across as listen, you know, woman, a woman, I would have to do the same thing if I made this claim. I would have to – I need to get this story out of you and you understand why and this is very important for the jury to understand.
So, you can take all the time you need, take breaks, but I need to get this information out of you. So, let's come back when you can gather yourself. You have to make it seem like listen, this is everybody knows what we're here for and we're sorry for you, but this isn't a therapy session.
Joshua Ritter:
[0:39:24]
Yeah, yeah. It's a very, very difficult line to walk. So, this cross –
Fatima Silva:
[0:39:31]
And it's traumatic. They're retelling their story, right? So, to say – so on both sides, right, I mean if I had to retell my trauma, it's going to come up. And a lot of these victims that does, these alleged victims, it does come back up for them and they are replaying it a lot of times for the first time in many years, but it can still be done. You just have to – you really have to strategize better.
Joshua Ritter:
[0:39:59]
Yeah. Well, this cross examination was at times very heated, very contentious, and it lasted over a day. And one of the topics that was discussed and will apparently become a part of this trial, and I'm going to warn everybody that we're going to get a little graphic here in some of the details, but it is going to become apparently a pivotal piece of evidence. But it was explained in opening statements and in cross examination that Harvey Weinstein had some sort of infection that caused him to have a surgery where part of his scrotum was removed and that his testicles were actually placed inside of his inner thigh.
The importance of that being is that the Jane Doe number one had testified previously that she was amongst the thing she was forced to do was to orally copulate Harvey Weinstein, including his testicles. And so, the defense attorney made a point of this, that how could you do that, when in fact his anatomy is not currently constructed that way? My question, Fatima –
Fatima Silva:
[0:41:06]
Nice way of saying that.
Joshua Ritter:
[0:41:07]
Thank you very much. I'm trying. My question is, is that – was that important enough for the defense to get into, or is it perhaps so uncomfortable and so kind of pushing the line that maybe it's something that should have been avoided? Or if you're the defense attorney, is this no holds barred and you have to get into that because you feel it's such an important point?
Fatima Silva:
[0:41:30]
You absolutely have to get into that. Listen, this is a sexual assault criminal trial, right? This is – these are sexual violent allegation, and there's going to be a lot of things talked about that are going to make a juror – jury uncomfortable. You have to get that out in the beginning. You have to say it in your opening. This is going to make you uncomfortable, this is going to make you squeamish, these are things you wouldn't talk about with your spouse, but we're going to talk about them here because that's what this case is about.
So, we're going to ask these questions that may make everyone uncomfortable and that is a really big deal, right? That's a huge piece of evidence. Talking about corroboration, a lot of it is describing the person’s anatomy. We know there's cases where they describe what somebody’s genitalia looked like, right? They described these things and that corroborates that they've seen that person, knew that they have encountered that person in that way. And so, if that's some of the only things that you have to corroborate and you're saying you did something that was physically impossible to the person, you got to bring that up.
That's huge. That's a mistake. And it also goes to show, I mean, everybody thinks that that anatomy is going to be there, right? That's a – this is very rare. It's almost like people who have had surgeries and have had one removed, that's just so rare, that it really works against, I think this victim, unfortunately, this alleged victim that you know they use that as evidence. Especially if it's after – obviously, if all this is after he's had the surgery.
Joshua Ritter:
[0:43:09]
Yeah. Well, both in their pretrial motions on evidence and now in opening statement and in cross examination, it's obvious that the defense attorneys in this case are intending to be very aggressive in the way that they defend their client in this case. And the question I have is, do you think that that might intimidate other victims who are not watching because this is not being televised, but hearing about it and seeing the reports and hearing about people's lives, you know, sometimes some ugly things in their ugly skeletons in their closet being brought out for the purposes of cross examination?
Do you think that could be intimidating to other witnesses? And the reason I ask this is that interestingly, the prosecution did not refer to Jane Doe number five in their opening statements and that has brought up some questions as to whether or not she will testify. What are your thoughts?
Fatima Silva:
[0:44:03]
I think it absolutely influences whether or not people come forward in the future. This into – the way that our justice system works and the way that, you know, when you are defendant, you do have the right to cross examine your accusers, to cross examine those witnesses. And that is very difficult for people who have endured trauma.
So unfortunately, for those people who are actual victims in the future, they may not want to come forward against something like this because they don't feel it's worth it to be. You’re attacked years ago and now you're being attacked on the stand, and nobody believes you. That's very difficult. But this is the way once again our system is – it's the way its built and it's the way it has to be because you are making allegations that can put somebody away for many years and it needs to be corroborated.
So, it's really tough on both sides. I do think that the Weinstein defense team now taking an even more custom stand, I think it's the approach that they had to take considering all of his other convictions. And now they're taking this new stance of wait a minute, wait a minute, he's a victim. You guys all took – now, he's the victim because you took advantage of him back then when it benefited you and now you see that you can get something out of it. I think that's probably one of the only strategies they have left.
Joshua Ritter:
[0:45:27]
Yeah. Well, lots of trial that we had and this still – and so, you know, I'm asking you to kind of bet on a horse here early on. But again, you have older allegations in the sense that they're not within months of the trial, little corroborating evidence in the sense that it doesn't appear as though there's going to be a lot of forensics presented. But you have several victims who seem to be unrelated, other than they are both all accusing Weinstein of similar conduct. Is that insurmountable for the defense? In other words, are jurors going to just simply say to themselves, yes, maybe there are individual problems with each of these allegations on their own, but what are the chances that the same man could be abused of the same conduct five different times? What are your thoughts?
Fatima Silva:
[0:46:18]
I think it's going to be really difficult for them to prevail in this, not just because all of the other convictions, and that there are many alleged victims that definitely works against you. But they're going to look, they're going to have to breakdown the facts of each encounter, each alleged victims’ encounter with him. And I think that you know the prosecution is probably going to do a good job of painting a picture of a very powerful man, right?
This isn't just – this isn't your local, you wanted a job at the local newspaper or television station, you know, small time and he was the boss there and he decided to, and that happened. No, this is a very powerful man in all of Hollywood. So, if you want, I think the prosecution is going to paint a picture. If you want any kind of career in Hollywood, you are going to feel obligated to just kind of go with the flow of what's happening, despite how your body may, you know, and your mind are saying, wait, this isn't right, I'm not comfortable.
I think that really works against Harvey Weinstein more than anybody else, more than the Kevin Spacey's, you know, Danny Masterson’s, even although the church is a big influence on that as well. I just think that we're talking about two levels. It's almost like the – if you're dealing with an employment law issue, right? You're talking about the boss who has the ability to make or break your career, your job, it's very different.
Joshua Ritter:
[0:47:47]
Yeah. I mean arguably ran Hollywood for a few years. There were – when much of this was allegedly taking place. Fatima –
Fatima Silva:
[0:47:57]
That's not an equal transaction, yeah.
Joshua Ritter:
[0:47:59]
No.
Fatima Silva:
[0:48:00]
Sorry.
Joshua Ritter:
[0:48:01]
Fatima, this was a great conversation. Thank you so much for coming on this week. Where can people find out more about you?
Fatima Silva:
[0:48:08]
Thanks for having me. So, they can follow me on FatimaSilvaESQ on Instagram, FatimaSilvaESQ on Facebook. And check us out soon on Spotify for Crime and Cookie Juice. I have a new podcast coming out. And Reasonable Doubt is still showing on ID Go and Discovery Plus.
Joshua Ritter:
[0:48:28]
Fantastic. We look forward to that new podcast. And I'm your host, Josh Ritter.
Fatima Silva:
[0:48:08]
It will be fun.
Joshua Ritter:
[0:48:34]
You can find me on Instagram and Twitter, @JoshuaRitterESQ and check out my website, JoshuaRitter.com where I try to keep everybody updated as to what I'm up to and you can find our Sidebar episodes wherever you get your podcasts. And we want to hear from you. If you've got questions or comments you'd like us to address, tweet us your questions with the hashtag #TCDsidebar. And thank you for joining us at The True Crime Daily Sidebar.
