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To New York now and the ongoing trial of movie mogul Harvey Weinstein. And just a warning to our listeners - this next story deals with sex abuse. One of today's witnesses, Tarale Wulff, said Weinstein raped her after promising career help. And another witness, Dawn Dunning, says after offering to help her with her career, Weinstein groped her and then apologized. Weinstein says all his sexual encounters were consensual.
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If he's convicted, it may be because these women have testified even though they are not named in the charges. The tactic is what prosecutors used in the Philadelphia trial of Bill Cosby. Cosby was tried twice. The second time the judge allowed other women to testify, and he was convicted. NPR's Rose Friedman reports on how this exception to normal rules of evidence came to be used in New York.
ROSE FRIEDMAN, BYLINE: This story starts in New York at the turn of the 20th century.
HAROLD SCHECTER: The protagonist was a kind of a rakish young fellow named Roland Molineux.
FRIEDMAN: That's Harold Schecter. He's a historian of American crime. He says Molineux the way the family does. Lawyers and judges say Molineau (ph). I'll stick with that for this story. So Roland Molineux was living a good life. His father was a politician in Brooklyn. Roland belonged to a fancy gentlemen's club called The Knickerbocker, where he apparently hated the club's athletic director. One day, the athletic director opens his locker at the club. Inside, he finds a medicine bottle in a Tiffany box.
SCHECTER: And, you know, he took it as a kind of practical joke. Here's something to help you get over your hangover.
FRIEDMAN: The athletic director took a little and got sick. But he brought it home, and his landlady took it for a headache. She died. In her system, doctors found a deadly poison - cyanide of mercury.
SCHECTER: I guess I should have also mentioned that Roland Molineux worked as a chemist.
FRIEDMAN: Reporters started looking into Roland.
SCHECTER: They discovered that, about a month before, another member of The Knickerbocker club had also died after ingesting, you know, some kind of medication.
FRIEDMAN: That guy just happened to be Roland Molineux's romantic rival. So Roland was put on trial for murder. It was a huge deal, like the OJ trial of its time. Really, all the prosecutor had to do was bring up that second murder, and that was it - guilty.
SCHECTER: Molineux was sent to Sing Sing and sentenced to be electrocuted in what came to be called Old Sparky - you know, the electric chair.
FRIEDMAN: But his dad pulled some strings. He appealed the case. He argued that evidence of the second murder shouldn't have been allowed in.
SCHECTER: You know, because a person could have a propensity for criminal behavior but not necessarily have committed that particular crime, so that became known as the Molineux Rule in New York.
FRIEDMAN: Roland Molineux won his appeal, and the rule was named after him in New York, where his case set a precedent for what evidence is allowed at trial. Except...
AYA GRUBER: That rule is riddled with exceptions.
FRIEDMAN: That's law professor Aya Gruber. One of the exceptions is called a common scheme. For instance...
GRUBER: If there is a certain burglar known as the rose burglar and he always leaves a yellow rose at the scene of the crime and in this case, the defendant left a yellow rose at the scene of the crime, well, those yellow rose burglaries are not just prior bad acts. They show a pattern, right? They show a common scheme.
FRIEDMAN: Prosecutors in the case of Harvey Weinstein say he committed sex crimes against a number of women. They were only able to bring charges in two cases because some were outside of New York and some were too long ago, so they got the judge to agree that three of those women could testify as exceptions to the Molineux Rule. The three women are telling their stories of going to what they thought were business meetings only to be subject to what they say was sexually abusive behavior. Douglas Wigdor represents one of them - Tarale Wulff.
DOUGLAS WIGDOR: If the Molineux witnesses are strong, then it makes the defense all that more difficult.
FRIEDMAN: Because Weinstein's defense is that the women in the case are lying; that they had consensual and, perhaps, transactional relationships with the film producer and are only now reframing the contact as forced.
WIGDOR: It's more difficult - infinitely more difficult to argue that, you know, six women are lying about the issue of consent as opposed to it being two or three.
FRIEDMAN: Rose Friedman, NPR News, New York. Transcript provided by NPR, Copyright NPR.