Harvey Weinstein’s walker doesn’t fit a man once considered an influential power player in Hollywood. It’s a cheap tangle of bent aluminum and thin plastic, looking like a $25 deal bought from Walmart. There are dirty tennis balls jammed onto the ends of the rear legs, and Weinstein’s shuffling gait with this contraption looks, somehow, rushed and weak at the same time. There’s also always a hand from his legal team available, waiting to grasp the crook of his arm for support.
Yes, Weinstein was in a car accident in August that required a small operation on his back, but while some experts think his hunched-over limp is legit, the rest of us are rolling our collective eyes (especially since he was spotted at a Target walking around just fine). This once swaggering, temperamental man has been pretty quiet since the #MeToo movement brought dozens of disturbing sexual assault allegations to light. Maybe it’s notable that he reappeared with a sob story in the New York Post, complete with IV and walker visible in the photos. It’s an odd, artificial-feeling turn for a man who once held court at Hollywood events while wearing only the finest threads.
But could Weinstein and his counsel really be playing up his health for strategy’s sake, in order to appear like a frail and pathetic man amid accusations of violent rape and intimidation? Lawyers are, after all, supposed to stay objective with the facts of a case and their client. As you can probably imagine, however, there’s a large swath of gray area here. And Weinstein is far from the first defendant to try his hand at the game behind the game — the subtle subterfuge used leading up to, and in, a trial to potentially bend minds.
“The first thing that popped into my head is ‘desperate times call for desperate measures,’” says Adam Banner, a criminal defense lawyer in Oklahoma City who has worked on high-profile cases involving crimes like murder. “There’s a fine line that you have to walk as an attorney, when you have a professional responsibility to be candid with the court and with your opposing counsel, but also have an obligation to the person that you’re advocating for. So it can get dicey. Obviously, you don’t want to do something completely misleading. But at the same time, there are tactics you might use to try and make your client appear more preferable. It’s a fine line, but I’m sure some lawyers are more prone than others when it comes to crossing that line.”
The last month before a trial begins is almost always the most demanding time for a legal team and the most expensive for a client. Despite all the drama of a courtroom showdown, cases are often won or lost on the pre-courtroom work the public doesn’t see — endless motions, arguments over evidence and witnesses and the battle of jury selection, for starters. But first impressions matter too, and the final month usually takes a massive emotional toll on a client, especially if they’re prepping to take the stand. So you can bet that desperate people with money to burn are using any resource possible to use every edge they can. Junior Soprano wasn’t too proud to pretend to be a literal old wheezer in a wheelchair, hooked up to an oxygen tank. Nor were the Vegas mobsters who got snagged in Casino and subsequently wheeled into a hearing with, you guessed it, oxygen tanks. And these fictional examples aren’t far from the kinds of tactics you see IRL.
Banner immediately points to Bill Cosby, who himself was swept up in the #MeToo movement as the perpetrator of countless sexual assaults on women, some of whom he even drugged. Just as the trial was about to begin, Cosby and his counsel claimed that the octogenarian had mysteriously gone blind and was more weak than ever. The media and public called BS, noting that he did things blind people don’t do — like look up at passing helicopters or walk directly behind a sighted aide.
“You run a risk of ostracizing the jury, because they’ve seen this man before and know him. They know what this man looks like,” Banner observes. “In Weinstein’s case, they know they’ve never seen a photo of him with a walker before. It’s a strategic decision to try and present your client in the best light. But it can backfire.”
You see the complex effects of image and persona even in cases that don’t have props or unsubtle foolery, like that of Casey Anthony, the young mother who became a sensation while on trial for the killing of her daughter. The prosecution tried to make her appear as an irresponsible, cunning woman who preferred a party lifestyle over raising a child. The terrified girl that appeared on the stand, however, seemed to counter that implication. She stayed calm and composed, even while addressing numerous inconsistencies in her alibi. “I remember thinking to myself, and talking to other attorneys, about how she just came off different than what we had heard. It’s hard to reconcile. It must’ve worked in her team’s favor, because obviously she got the [not-guilty] verdict,” Banner recalls.
Conversely, star-wattage charisma can help turn the tide, too. O.J. Simpson, famously adored by America, flashed his personality throughout his trial for the murder of his ex-wife and waiter Ron Goldman and hustled to maintain his public appeal, with jurors and the gallery alike. Unlike Juice, Ted Bundy wasn’t a movie star — but he looked like one, and displayed a sharp mind, too. To the chagrin of the prosecution, young women flocked to the serial killer, lining up in the courthouse and sending him love letters. Bundy himself proposed to his longtime girlfriend, Carole Anne Boone, in the middle of questioning her on the stand.
In a way, tying to reform or polish your image for trial is the cousin to malingering, or the criminal act of faking an illness. The mobster Frank Tieri, who arrived at his racketeering trial in 1980 in a wheelchair and eyepatch, was accused by prosecutors of playing up his illness in order to gain sympathy (he really was ill, which the judge acknowledged before sentencing him to a decade behind bars). Fellow mob leader Vincent Gigante, meanwhile, pretended to have schizophrenia, shambling around in circles and saying nonsense in the presence of FBI cameras and bugs. (He dodged prison time repeatedly for years thanks to the act, gaining the brilliant nickname “The Oddfather” for his efforts.) For his part, Suge Knight said he was going blind and sick. Another guy tried to fake a heart attack — poorly.
In reality, attorneys aren’t really spending their time brainstorming deceitful ways to gain this kind of edge — coaching a client on literally what to say and how to say it is illegal, as L.A. attorney Jeff Armour affirms. Instead, the priority is to ensure that the client understands what’s happening in each step of their case, whether it’s a simple deposition or a big jury trial. And often, the biggest image decision of all comes down to whether a person takes the stand and faces questioning. Armour recalls a case in which a father and son struggled over a gun in a domestic dispute. The son was shot and killed, and Armour says he knew the father was deeply emotional about what had happened.
“But he just wasn’t sympathetic as a witness. He had this kind of callous, old-school demeanor attitude about it. As it turned out, his wife was willing to testify, and she did a wonderful job. It probably saved him. He ultimately was acquitted,” Armour explains. “But the risk was, if he testified, what would the jury have thought of him?”
The more money you have, the bigger and more hands-on a legal team can be, opening the door to ask these and other questions about how to maximize a person’s chance at a not-guilty verdict. Armour and Banner both note that wealth inequality in securing legal representation creates a massive barrier for this kind of detailed work; Michael Peterson famously spent $750,000 on his defense over the staircase murder of his wife, with his team hiring expert consultants and holding multiple mock juries.
This is a stark contrast to, say, people who have to rely on overloaded public defenders and can’t afford the bells and whistles. “Public defenders are often great attorneys. But the way I explain it to people is, putting together a criminal defense team is just like anything else. You can spend as much money or as little money, but more often than not, you’re going to get what you pay for,” Banner says.
Such inequality won’t go away without some major changes to how we fund public defenders, for starters, which is to say it’s not going away anytime soon. It’s the tension that makes Weinstein’s massive, expensive counsel all the more grotesque. And the cheap walker he so readily relies on ought to be seen, ironically, as a symbol of that privilege — the powerful privilege to afford, strategize and execute a legal plan to potentially go free. The criminal justice system is supposed to cut through illusions and find truth, and so often it does. But anything can go when you’re grasping for freedom. And so, the gray area remains in the DNA of our legal system, for the benefit of the innocent and guilty alike.
“When I began practicing some 20 years ago, I was mentored by an old-time trial attorney,” Armour says. “He used to say that ‘trials are chess and theater.’ When you’re talking about evidence, that’s the chess game. But there’s a theatrical aspect, too. It’s important for the attorneys. It’s important for the client. Everyone needs to be on the same page. You need to rehearse so there’s theater. And image is a big part of that.”