Jonathan Lippman advised New York lawmakers in shaping the reintroduced “Weinstein bill,” the retired chief judge told the Law Journal.
The bill was crafted largely in response to the Court of Appeals’ controversial 4-3 decision in April that threw out film producer Harvey Weinstein’s 2020 rape conviction and 23-year prison sentence.
The reform bill calls for a state judge presiding over a sexual assault case to use discretion in admitting relevant evidence of prior uncharged acts. Lippman said the judicial discretion would be “critically important,” to weigh the probative value against any possible prejudice to a defendant.
Lippman, who is an of counsel at Latham & Watkins, underscored that the Court of Appeals’ majority was correct on the law.
But Lippman said it was clear to him that policy changes were needed, out of consideration for the modern science behind sexual assaults. Victims don’t tend to immediately report their allegations to law enforcement, sometimes waiting years to do so. It makes those cases harder for prosecutors to prove.
Lippman’s backing is a major score for advocates of having New York join 16 other states that have adopted the Federal Rules of Evidence, where evidence that a defendant committed other uncharged sexual assaults can be considered.
Lippman served as New York’s chief judge from February 2009 through December 2015, where he wrote a number of decisions that prompted legal reforms. He was also the state’s longest-tenured chief administrative judge from January 1996 to May 2007.
Lippman said he obliged the bill sponsors, Senate Deputy Majority Leader Michael Gianaris, D-Queens, and state Assembly Member Amy Paulin, D-Westchester, who had asked for his help in advancing the 2025 effort.
The 2024 version had passed in the upper chamber, but its Assembly version failed to gain traction, as lawmakers were pressed for time in lobbying for the late-arriving bill, which several lawyers in the lower chamber found unconvincing.
“We talked about the issues and the language questions, and what it might take to get a bill passed in this year’s session,” Lippman said.
“From my perspective, anything that involves the fairness of the system is what’s important to me. When I was the chief judge, the first question I would always ask is, putting aside the legal technicalities, what’s fair?”
In sexual assault cases, Lippman continued, “there are no cameras, generally. There are no other witnesses. The survivors as victims are not always believed, and we have to have a level playing field. As we look at the science of sexual offenses, so many of the victims are women — often young women of color and immigrants — and we can’t allow them to be assaulted with impunity.”
Lippman called it a “balanced bill that hopefully will be attractive in both houses” of the Legislature.
Paulin, herself a survivor of an alleged sexual assault, said: “I am thrilled to have Jonathan Lippman in my corner. He’s one of the most distinguished and brilliant jurists we’ve ever had in New York State.”
At the time of Weinstein’s trial, four women were allowed to testify about uncharged sexual assaults he allegedly committed.
Empire State courts apply a Molineux rule, named for a 1901 Court of Appeals case, which allows prosecutors to bring in proof of a defendant’s prior bad acts or crimes only to “establish motive, opportunity, intent, common scheme or plan, knowledge, identity or absence of mistake or accident.” But it’s not to show that the defendant has a propensity to commit similar acts or crimes.
In February 2024, Weinstein’s attorney, Aidala, Bertuna & Kamins partner Arthur Aidala, had argued his client’s trial was tainted because the Manhattan District Attorney’s Office held a press conference after Weinstein’s arrest “asking, call us if you know anything bad about this guy: 1-800-Get-Harvey.”
Lippman said of the New York’s defense community’s staunch opposition to the proposed legislation: “I understand that on any significant change in the law, there can be arguments both ways. But when I weigh the different arguments that the defense bar has raised, and I couldn’t be more respectful of them and the difficulty of their job, I believe in this particular area, the law needs to be aligned with the modern science of sex offenses and how we deal with them and what’s fair to victims and survivors.”
Asked if he will actively lobby for the bill, Lippman responded: “I don’t know that I’ll be in Albany,” but that he nevertheless felt duty-bound “to try and help to engender change that makes the system more fair and efficient.”
“I’m not a legislator, although, in my days as the chief judge, we did have a lot of initiatives and views about the justice system and the law. We used to joke that some of the legislators would say, ‘He thinks he’s a legislator instead of the chief judge.’ And now kind of being the ex-chief judge, I think it’s easier to speak out.”
In noting that he would have joined the court’s majority in granting Weinstein’s retrial, Lippman said it reminded him of several unpopular rulings he wrote as chief judge, some of which spurred reforms.
There was Lippman’s 2009 opinion in People v. Weaver, “where we decided that there needs to be a warrant if you want to put a GPS under a suspected criminal’s car — that was not a popular decision.”
“Certainly, with many people, I think the (2010) Hurrell-Harring ruling, which again was a decision I wrote when we upheld an institutional challenge to the indigent defense system in the state,” Lippman said. “A lot of people thought you couldn’t really do that; you could only challenge an individual case.”
Lippman also mentioned decisions in 2009 in favor of the state’s use of eminent domain to build the Barclays Center in Brooklyn, in the face of a number of holdouts, and allowing then-Gov. David Patterson to fill a vacancy in the lieutenant governor’s office, when lawmakers believed the governor didn’t have unilateral power to do so.
“I wrote a decision saying that he could, and all hell broke loose,” Lippman recalled.
“But that’s what being a judge is all about. What often happens is — and it’s not a bad thing — that a judicial decision leads to a change in the law, and that can happen both from the majority decision or from a dissent. We actually will call for legislative change and say, ‘Our hands are tied, or the majority’s hands were tied, but gee, you should really look at the law.’ “
Lippman said he’s referred to Molineux “in countless, countless cases over the years.”
In spite of those cites, Lippman said that in this narrowly-tailored area of law, prosecuting sex crimes, it’s time for lawmakers to make the change.
“The law isn’t in cement,” he said.
