When the nightly news showed the B-roll of Harvey Weinstein entering 100 Centre Street for trial, I cringed. There he was, enfeebled.
Maybe this once-robust man, whether sex-hound or rapist, needed to use the walker. It was said that back surgery required it. That could well be true. But it emitted the odor of trying way too hard to create an impression of a old, decrepit guy, too harmless to commit the crime with which he was charged, too pathetic to not evoke the sympathy of the jury.
The physical appearance of the defendant at trial is a matter of strategy. Defending the Menendez Brothers, Leslie Abramson famously put her clients in button-down shirts and matching sweaters to give them a benign, preppie look. Preppie kids don’t kill their parents. And it worked, although not well enough to get them acquitted. Appearance is only one factor, after all. There’s also evidence.
On the most simplistic level, this is why defendants shouldn’t appear in court in their jail jumpsuits, giving the appearance of criminals from the outset. For defendants who have no family to help, it’s left to their lawyers to find clothing for them to wear that doesn’t taint them for no better reason than they look criminal-ish. But this is a palliative solution at best.
Putting a defendant in a suit when he’s not a suit-wearing kinda guy just makes him look awkward and uncomfortable. Then the suit rarely fits well, making it even worse. If the trial lasts a few days, the suit gets ripe and the jury can’t help but notice that he’s wearing the same clothing day after day. But it’s better than orange, and it’s often the best that can be done.
From there, it goes far deeper, as a trial is, in some respects, a play and the clothing and accoutrements are the actor’s costume, but the costume doesn’t end at the tie and jacket, which may be cut in the traditional style or something more trendy, according to the impression you’re trying to convey. It extends to the small details, the haircut, the eyeglasses, the shoes. And the walker.
Harvey Weinstein’s walker is playing a featured role at his trial. The decrepit-looking Mr. Weinstein, body hunched as he slowly rolls forward, contrasts sharply with his former image as a domineering Hollywood power broker now accused of rape and predatory sexual assault.
The contrast is jarring.
To the judge, jurors, lawyers, reporters and onlookers the walker conveys an image, accurate or not, of physical weakness and dependence — what I call the “the aesthetics of disability.” These physical and behavioral markers of disability produce visceral responses in jurors and the public that can lead them to be more (or less) sympathetic when weighing a defendant’s liability, public responsibility and, in the end, punishment.
There’s no doubt that the appearance of being disabled sends a message to the jury.
Similarly, research indicates that jurors are likely to be more lenient in assigning liability and punishment when a defendant is or appears to be 50 or older. In this sense, both age and disability status neutralize or offset juror and public perceptions of danger and risk.
But the generalized assumption that jurors will be more sympathetic based on age and disability is no guarantee. It’s got to work, for that defendant, for those circumstances, given the nature and evidence in the case. As usual, one-size-fits-all research doesn’t address the particulars of any specific defendant in any particular case.
So why should we care about what, in some cases, is a strategic use of this aesthetic in court? Criminal trials are performances, after all, with high stakes and lawyers squaring off in an adversarial system where their duties are to zealously represent their clients.
There are two questions raised by Harvey Weinstein’s use of a walker at trial. The first question is whether it’s wrong to put a defendant behind a walker as a prop to create the appearance of disability, to evoke the jury’s sympathy toward disabled people, should that not be true. From the perspective of those whose concern is directed to the status of disabled people in society, this likely stinks of disability appropriation and is terribly wrong. After all, if Weinstein doesn’t need a walker, then his usurpation of the means of the disabled is a lie. On top of that, he associates disability with his conduct, which is another burden the disabled could live without.
The second question is whether it works. Much as putting a defendant in a costume can help, it still has to be the right attire for its purposes. He has to be able to pull it off, of the costume not only fails to serve its intended purpose, but can backfire. Appearances are a double-edged sword.
Does the walker work? Does Harvey Weinstein’s use of a walker evoke sympathy? Does it at least not make you cringe, with the sense that whoever gave him this prop to use missed the mark by a mile?
It may well be that Weinstein’s walker is totally legit, that he needs it for mobility as a result of back surgery and wouldn’t be capable of making it into the courthouse otherwise. It could be that a choice was made between a walker and a wheelchair, assuming he required some device to enable him. Maybe his legal team would have sincerely wished he needed neither, whether for his health or because it just looks like he’s trying too hard to appear feeble. And if the walker, even if legitimately necessary, creates an appearance that works against him, making him look like he’s trying to game the jury, is there anything to be done about it?