Weinstein takes 5: Defense rests without his testimony

According to his attorneys, Harvey Weinstein was “ready, willing, able, and anxious” to take the stand in his own defense. His attorneys apparently thought otherwise about his wisdom in doing so. The defense rested yesterday in the New York sexual assault case without Weinstein taking the opportunity to explain himself — or prosecutors an opportunity to tear him to shreds:

Cowardly dodge or smart strategy? Probably a bit of both, but it also might be an indication that the defense thinks they’ve introduced enough reasonable doubt as it is:

For 30 minutes, Mr. Weinstein and his lawyers met in a private room; he expressed a desire to tell his side of the story while they advised him not to risk it, according to his spokesman.

But ultimately, Mr. Weinstein and his lawyers returned to the courtroom and told the judge that the defense was resting its case, setting the stage for closing arguments on Thursday. Later, as he left court, Mr. Weinstein was asked if he had considered taking the stand. “I wanted to,” he said. …

His lawyers have argued that Mr. Weinstein’s accusers used him and engaged in consensual sexual encounters to advance their careers.

But if Mr. Weinstein were to take the stand, prosecutors would quite likely have tried to elicit testimony that would have portrayed him as a bullish, overbearing figure who had used his influence in the industry to coerce women into unwanted sexual encounters.

Generally speaking, attorneys are loathe to put a client on the witness stand. They lose control of the situation on cross-examination, and clients can destroy neatly constructed strategies with a careless phrase or a poor attitude on the stand. Previously excluded evidence and testimony could suddenly be made relevant for the prosecution, and the jury might take a strong dislike to a defendant during cross-examination. Sometimes clients will refuse to take that advice from a burning need to rebut what has been said in court, but clients are poor judges of effective legal strategy.

It sounds as if Weinstein was just smart enough to finally take his attorneys’ advice … or to pose as if he wanted to testify for the media later.

It’s still a risky strategy. In a he said/she said, juries will want to hear what he said for themselves, not through a defense attorney. The Fifth Amendment means the jury can’t take his lack of testimony officially into consideration when determining guilt or innocence, but that’s only officially. His lack of response to the claims will still undoubtedly nag at the jurors after all the emotional testimony from the women who leveled allegations of sexual assault against Weinstein.

Closing arguments start tomorrow, and Weinstein’s attorneys will argue that there’s all sorts of reasonable doubt about these claims. Phelim McAleer, who’s been attending the trial and producing the daily verbatim podcast of it, told me yesterday on The Ed Morrissey Show that Weinstein’s defense has been very effective at punching some holes in the prosecutors’ case. Whether that is enough for the jury to overcome that emotional testimony is another question, but Phelim thinks a surprise might be in the works in the jury room — and that the media has largely missed that story over the last few weeks.

That makes the decision to rest and go to arguments look more like confidence in their strategy than worry over Weinstein. If the defense succeeds, though, expect a cultural meltdown over the verdict that might rival the O.J. Simpson trial outcome. It will also put enormous pressure on prosecutors in Los Angeles to finish the job on Weinstein.