Part III: Essay [(100 points)]

Recommended Time: [90 minutes]

People v. Bleinstein
Harry Bleinstein is President and CEO of Orange Phone & Computer Company (OPC),
headquartered in Cupertino, CA. He is reputed to have a net worth of $12 billion and is very well
known in the industry. Everyone in the industry knows that OPC offers excellent compensation
packages to its top executives, and OPC is known to catapult executives into very senior roles in
the industry. Generally, OPC employees are treated well, but in order to advance to the elite
executive ranks, they understand that it requires more than just an outstanding commitment and
job performance. Each candidate is required to go to Bleinstein’s private executive office suite in
Cupertino for a final interview meeting.
During the spring of 2016, Sally Seeker was being considered for an executive role at OPC. She
made it through the first several rounds of interviews with top OPC executives, and was invited
to the evening interview with Bleinstein at his private suite. She accepted the invitation and
arrived in Cupertino at 5:00 p.m. on Thursday, June 18, 2016. Bleinstein’s secretary, Jack Typer,
brought Seeker to Bleinstein’s office door, introduced them, and then walked back to his desk
outside Bleinstein’s closed door. After shaking hands and exchanging pleasantries, Bleinstein
abruptly grabbed Seeker by her left wrist and pulled her firmly against him, and then somewhat
rudely (it seemed to Seeker) pulled her over to a couch and coffee table in the back of the room.
Bleinstein pulled Seeker down onto``` the couch. Once he let go of her, and after she had gotten
over the initial shock of the unexpected and unwanted touching, the question and answer portion
of the interview seemed to go pretty well. Seeker thought she answered all of Bleinstein’s
questions admirably well during the two hour interview. But then, Bleinstein’s demeanor
changed and he complained of having a really long day and a stressful week. He reminded
Seeker how many young prospective executives like her that he had helped through the years,
and he leaned in close to her put his hand on her lap, and asked her to massage his neck and
shoulders.
Seeker did not respond at first. Bleinstein watched her closely as she silently sat on the couch.
After a few minutes he sat up and said, “You know what? You really have a great figure, I know
you will be really wonderful in marketing our products.” Seeker was uncomfortable and
disgusted, but when Bleinstein took her hand in his, and put it on his shoulders, she reluctantly
and quickly massaged his shoulders.

The “interview” ended at 7:45 P.M., and Seeker left quickly through Bleinstein’s office door.
She muttered to herself “I can’t believe that just happened. I can’t believe he asked me to
massage his neck!” Typer, working late as usual, overheard the remark. Later, when interviewed
by the District Attorney (DA) investigator Typer said that Seeker appeared very flustered and
quite upset as she walked past him and quickly left the building after her interview.

On her way home, Seeker stopped at her favorite café. She ordered a Chai Tea Latte, sat at the
café bar table, and thought about what had just happened. Seeker finished her tea and drove
straight home, still very upset. In fact, she became angrier and angrier the more she thought
about what had just transpired. She ran into her house and called out to her husband, David Price,
and told him every detail about her interview; she just had to get it off her chest. Among other
things, she stated: “That scumbag made me give him a massage!” Price could see that his wife
was very upset. He was puzzled and asked who she was referring to? She replied, “Bleinstein.”
Then she stated “that was really horrible, I was so uncomfortable, I didn’t know what to do. I
need to say something to someone, I really do not want that to happen to anyone else.”
Three days later, Seeker was promoted to Senior Vice President. Seven days after her promotion,
she reported the incident to OPC Human Resources (HR), who, in turn, called the police. The
following Monday, a police inspector came to OPC headquarters to interview Seeker in a
conference room. Seeker described all relevant events of June 18, 2016 — including the wrist
grabbing, the unwanted touching, the interview, and the neck massage — to the officer.
The police officer forwarded his report to the District Attorney’s Office and there was a grand
jury investigation. After the investigation, the District Attorney decided to prosecute the case.
Bleinstein was charged with one count of battery and one count of sexual assault.
During the investigation of Bleinstein, the D.A. discovered several other instances in which an
OPC employee had encountered unwanted contact and/or sexual requests during other job
interviews with Bleinstein. All of the alleged instances occurred during work hours while at
work at OPC.
In March, 1999, Stephanie Silkpan (one of Harry Bleinstein’s previous secretaries) lodged a
complaint with HR alleging that Bleinstein grabbed her wrist and pulled her forcefully into him
several times. On one occasion, he pulled her over by her wrist to review a document she had
prepared with a typographical error. Whether he intended to or not, he grabbed her wrist so hard
he caused bruising and soreness that lasted weeks. Two days after that incident, Silkpan’s fiancé
Bob, was concerned enough about the injury to run it past his friend, who happened to be a
paramedic. Bob told his friend, “Stephanie told me the other night over dinner that her boss
grabbed her wrist really hard and pulled her towards him. The bruise is fading, but it’s still
sore and she has limited range of motion. Do you think we should get it X-rayed?”
HR investigated, but failed to take any action against Bleinstein as a result of Silkpan’s
allegations. She resigned her position in 2000 and is believed to now live somewhere in Nepal.
Her former fiancé Bob, and his paramedic friend still live in Northern California.
In October, 2014, Jessica True went to Bleinstein’s office for a promotional executive interview.
According to police reports, Bleinstein interviewed True for 45 minutes, asking standard
interview questions before he suggested that she take her sweater and shirt off and allow him to
massage her neck. True refused and stormed out of the interview and driving straight home. True
lived 15 minutes from the office. She tried to call 911 on her way home, but she did not have cell
service. She went straight home and called 911, she told the dispatcher: “You all need to send
the police down here right away. There’s a sexual predator running OPC and he’s loose in his
office suite right now! Out of nowhere, during an interview, Bleinstein asked me to take my
shirt off so he could give me a massage!”

Thirty minutes later, the Police arrived at the OPC office complex and took statements from both
Bleinstein and True. The next day, True went to the police station to provide more details in a
sworn signed statement. A month later, True testified to the grand jury about the October
incident.
 Jessica True’s Grand Jury Statement (page 1 of 4)
Prosecutor Question: Explain what happened after Bleinstein asked you about your greatest weakness?
True Answer: Well, that was the last proper interview question he asked me. After I answered, Bleinstein
asked me, “Would you mind taking your shirt off, Sweetheart?” or something like that. I couldn’t believe
it. I just stared at him. Then he said, “If you take your shirt off then I’ll be better able to give you a neck
rub.” His hands were all over me.
Prosecutor Question: How did you respond?
True Answer: Um, I’m not sure … I was so shocked. I couldn’t believe it.
Prosecutor Question: What did you do when Bleinstein asked you to take your shirt off?
True Answer: Well, I was sitting on the couch and I know I moved away from him. His leg was touching
mine, I know that.
Prosecutor Question: Do you remember what you did right after he asked you for a neck rub?
True Answer: No, I really don’t remember. I think I just froze. I reached out and put his arm around my
neck and moved closer to me. I don’t remember if I said anything.
Prosecutor Question: Is there something that would help you remember?
True Answer: It might, I gave a statement to officer Baker the next day. I know I wrote down everything I
remembered then.
[Witness was handed Prosecution’s Exhibit D marked for identification, a police statement; witness
reviews Exhibit D. Witness reads from the document]
True Answer: Yes, I remember now. It says here that I refused to give him a massage and then I stormed
out of the interview. I didn’t write anything about what I said, but the officer didn’t really ask me what I
said.
Prosecutor Question: How long did you remain in the room after he asked for a massage?
True Answer: Maybe a minute. I got in my car and went straight home.
Prosecutor Question: Who did you tell about the incident?
True Answer: I tried to call 911, but my cell phone was dead, so I called 911 when I got home.
Prosecutor Question: Is it your testimony that you went straight home after the interview?
True Answer: No, I stopped at the gym first. It was horrible and I was upset, I went on the treadmill to
cool down. Then I went home.
Prosecutor Question: Showing you Prosecution Exhibit D marked for identification again. Do you
recognize this?
True Answer: Yes.
Prosecutor Question: What is it?
True Answer: It looks like the signed statement I provided to the officer.
Prosecutor Question: The officer asked you “What did you do after the interview?” And you told the
officer, “I drove straight home after leaving the office and called 911 as soon as I got home”?
Criminal charges were brought against Bleinstein in the True case, his case was set for trial in
December of 2016. During October of 2016, before trial, True tragically died in a skiing
avalanche. The criminal charges brought against Bleinstein involving True were dismissed.
On November 20, 2016, Veronica Smith filed a complaint with OPC HR reporting an incident
she claimed occurred during her interview for a promotion to an executive management position
with Bleinstein. In the complaint, Smith alleged that Bleinstein grabbed her wrist, dragged her
over to a couch in his office, and asked her for a neck massage. Smith turned him down, but
finished the interview. Smith is yet to be promoted at OPC. The police were never called to
investigate the Smith incident. The prosecution contacted Smith, but she claims that she does not
recall the incident any longer, and refused to speak with the police investigators.
Seeker and her husband divorced in November 2017.
People v. Bleinstein (criminal case) went to trial in December of 2017. Bleinstein’s defense
attorney invested a lot of time and money into investigating and found several witnesses willing
to testify on Bleinstein’s behalf. The defense offered testimony form the following individuals:

Members of the OPC Board of Directors and an OPC senior vice president provided written
statements to the defense attorney and are prepared to testify. Each witness plans to testify both
about varying aspects of Bleinstein’s good character and Seeker’s bad character.
A) Charlie Brown (OPC Senior VP) testified that, in his opinion, Bleinstein has very fine
moral character, is an upstanding member of the community, and has a character of
acting appropriately towards women. Bleinstein regularly attends church and donates a
lot of money to local women’s events and charities. Brown sees Bleinstein at office
holiday events once a year and occasionally at social gatherings. Brown has never seen
Bleinstein act inappropriately towards women in any way.
B) Linus Player (Chairman of the OPC Board) testified that he and Bleinstein are neighbors
in the Palo Alto community and he is aware of Bleinstein’s reputation there. Bleinstein is
known for his impeccable virtue and generosity. Bleinstein would never touch a woman
without her consent. Player plays pool and cards with Bleinstein every weekend, they are
friends. Player has known and admired Bleinstein for the past three decades. Player
thinks Bleinstein is the most honest, law-abiding, and truthful person he knows.
C) Michael Meyer (Seeker’s Co-worker) testified that Seeker’s behavior at work and outside
of work is inappropriate and sexually charged. Meyer worked with Seeker between 2012
and 2016. Meyer wanted the promotion that Seeker ultimately received, but was passed
over for the final interview. Meyer testified that Seeker frequently left work early on
Fridays without submitting a leave slip for time off approval. Meyer also knew Seeker
was cheating on her husband when the Bleinstein allegations were revealed. Meyer’s
opinion of Seeker is that she is deceitful and dishonest. Meyer walked in on at least one
incident in which Seeker was engaged in massages in the supply room with male OPC
co-workers. As far as Meyer knows they were consensual. A second incident occurred at
Seeker’s apartment on the weekend with a different coworker. Meyer knows about this
because Seeker mentioned it in the lunch room on the following Monday.
The defense also learned that in 2009, Seeker was arrested for embezzlement and petty theft. The
embezzlement charges were dropped but she was convicted of petty theft, a misdemeanor. She
pled guilty and was sentenced to time served and three years of informal probation.

As stated above, based on the foregoing facts, the prosecutor charged Harry Bleinstein with one
count of battery and one count of sexual assault. At the trial, the prosecutor offered the following
evidence. For each of the numbered evidentiary issues listed below, explain and analyze whether
the trial court properly admitted the evidence. Remember to state any and all theories of
admissibility, any objections by the defense, and the prosecutor’s response to any such
objections. Assume the Federal Rules of Evidence apply.

1) Secretary Jack Typer’s testimony: Seeker’s statement. “I can’t believe that just happened. I
can’t believe he asked me to massage his neck!” [10 points]

2) David Price’s testimony: Seeker’s statement. “That scumbag made me give him a
massage!” …. “Bleinstein.” …. “ that was really horrible, I was so uncomfortable, I didn’t
know what to do. I need to say something to someone, I really do not want that to happen
to anyone else.” [15 points]

3) One page of True’s Grand Jury testimony transcript. [10 points]

4) Silkpan’s testimony and Smith’s HR incident report about similar incidents with Bleinstein.
[15 points]

The defense offered the following evidence at trial. As to each of these items, explain and
analyze whether the trial court properly admitted the evidence. Remember to state any and all
theories of admissibility, any objections by the prosecution, and the defense’s response to any
such objections. Again assume the Federal Rules of Evidence apply.

5) Testimony of Charlie Brown. [15 points]

6) Testimony of Linus Player. [15 points]

7) Testimony of Michael Meyer. [15 points]

8) Sally Seeker’s history of arrest. [5 points]

END OF PART III: ESSAY