Making Sense of the Harvey Weinstein Verdict

Film producer Harvey Weinstein arrives at the New York Criminal Court in Manhattan during his sexual-assault trial, February 24, 2020. (Carlo Allegri/Reuters)The former Hollywood power-player is likely to face a long prison sentence despite being acquitted of the most serious charges he faced.

Though a New York State jury convicted Harvey Weinstein on two felony sexual-assault charges Monday, it acquitted him of three allegations of aggravated sexual assault, including the two most serious charges he faced. Still, the counts of conviction are likely to result in a severe prison sentence for the 67-year-old former Hollywood producer.

Weinstein was charged with five offenses, all arising out of two coercive sexual encounters: a 2013 rape of then-aspiring actress Jessica Mann, and forcibly performing oral sex on former production assistant Miriam Haley (professionally known as Mimi Haleyi) in 2006. Before we describe the five counts with more specificity, let’s turn to the two controversial elements of the case, which will make the charges easier to understand:

1. Predatory-sexual-assault charges
Annabella Sciorra, the most famous actress involved in the case, testified that Weinstein raped her about 27 years ago. State prosecutors could not base charges solely on this accusation because it is time-barred under the statute of limitations. Yet they used the Sciorra incident to exacerbate the Mann and Haley encounters into charges of predatory sexual assault (PSA).

Under New York state law, PSA may be charged if a serious sex crime is committed by a defendant who has previously committed first-degree rape (among other aggravated sexual assaults). There is no requirement that the prior rape have been prosecuted, though it must be proved at the trial. PSA carries a potential sentence of life imprisonment, with a mandatory-minimum prison term between ten and 20 years, depending on the defendant’s criminal history.

2. ‘Similar act’ evidence
Beside Sciorra’s testimony, the trial judge permitted the district attorney to call as witnesses three other women who provided what the law terms “similar act” evidence. Lauren Young, a model and aspiring screenplay writer, and Dawn Dunning, a waitress hoping for an acting career, testified about being groped by Weinstein, while another waitress and aspiring actress, Tarale Wulff, described how he masturbated in front of her after pulling her into a secluded staircase.

This kind of testimony is called “similar act” evidence because, though the acts it describes are not charged in the indictment, they involve conduct similar to the behavior that is charged. Such evidence is controversial. It is not admissible to show that the defendant has a propensity to act criminally and, therefore, must be guilty of the charged crimes, but only to show some common plan or scheme, some pattern of behavior. That distinction can be blurry. Particularly in a violent-crime case, there is always the danger that the jury could convict on the charged offenses because it has been inflamed by testimony about the uncharged offenses.

The indictment
With that as background, let’s turn to the five charges in the indictment.

Weinstein was charged with two PSA counts, one each for the Mann and Haley incidents, with the alleged rape of Sciorra as their basis. The other three counts of the indictment stemmed from the same two incidents.

In addition to the PSA charge it generated, the Mann assault was charged as two separate counts: first-degree rape and third-degree rape. The latter is a “lesser-included offense” of the former, meaning that under double-jeopardy principles, a defendant may be convicted only of the greater or lesser offense, not both. First-degree rape requires proof of physical force or the threat of imminent harm and is punishable by up to 25 years’ imprisonment, with a mandatory minimum sentence of five years. Third-degree rape essentially means nonconsensual sex without the aggravating factors that create first-degree rape, and carries a potential sentence of four years’ incarceration.

Finally, the Haley incident (forcible oral sex), in addition to the PSA charge it generated, was charged as a first-degree criminal sexual act, which carries the same sentencing range as first-degree rape (from five to 25 years’ imprisonment).

The verdict
The jury acquitted Weinstein of the two most serious charges — the PSA counts — and of first-degree rape in the Mann incident. It convicted him of third-degree rape in the Mann incident and a first-degree criminal sexual act in the Haley incident.

Although they may have been disturbed by Sciorra’s testimony, the PSA acquittals indicate that jurors found her story — of an uncorroborated assault said to have occurred nearly three decades ago — insufficient to prove first-degree rape beyond a reasonable doubt. To be sure, the jury’s failure to find first-degree rape in the Mann assault would have doomed the Mann PSA charge, regardless of the jury’s assessment of Sciorra’s testimony. But the jury did convict Weinstein of committing a first-degree criminal sexual act against Haley; consequently, we have to assume the jury would have convicted on the Haley PSA charge if it had believed Sciorra’s testimony established aggravated rape.

Unless the verdict is reversed on appeal, Weinstein is looking at a minimum of five years in custody (the mandatory minimum on the Haley sexual assault) and as much as 29 years (the 25-year max on the Haley assault plus the four-year max on the Mann rape). And no matter what happens in the appellate process, Weinstein still faces at least one more trial in Los Angeles, where a grand jury has indicted him on charges of raping one woman and groping another on back-to-back nights during the festivities leading up to the 2013 Oscars.

Appellate issues
The main appellate issues arising out of the trial will likely involve the similar-act evidence and the court’s refusal to excuse one juror for cause. Ironically, the three acquittals should be of great help to the state on appeal.

As noted above, similar-act evidence always creates thorny legal issues. Here, the court permitted testimony from victims of four similar acts to bolster proof of just two indicted acts. It is unusual for proof of uncharged crimes to be more extensive than that of charged crimes. Clearly, the defense will claim on appeal that the similar-act evidence inflamed the jury into convicting because Weinstein is a sociopath, rather than on the strength of the proof of the two sex acts actually charged. Moreover, Weinstein’s lawyers will contend that Sciorra’s testimony and the two PSA counts were a pretext for making an end run around the statute of limitations.

The verdict will help the state rebut such claims. The fact that a jury of seven men and five women did not convict on the most serious charges, and that it convicted only on third-degree rather than first-degree rape (in the Mann incident), indicates that it was sober and discriminating in doing its job — it was not so distracted or prejudiced by the similar-act evidence that it could not carefully weigh the evidence in the Mann and Haley cases. (Indeed, it appears that jurors largely discounted Sciorra’s accusation of rape.)

The judge also made a decision, hotly disputed by the defense, to permit a novelist to sit on the jury. The author revealed that she had written a novel about three women who had sexual relationships with older men. During the voir dire examination, she denied that the book was about predatory older men. The defense claims that this was a lie, reporting that the juror’s website described her book as being about young women and “predatory older men.” Weinstein’s lawyers had run out of peremptory challenges (i.e., jurors who are stricken at the discretion of the two legal teams, rather than for cause) by the time the juror in question was examined. The trial judge denied the defense’s motion to remove her for cause (i.e., for implicitly being too biased to decide the case fairly and impartially).

Getting a case overturned because the court permitted the seating of a juror who should arguably have been excused is a very uphill battle on appeal. It is exceedingly rare for a conviction to be reversed due to alleged juror bias, particularly absent some evidence that the juror disregarded the court’s instructions and/or decided the case based on outside influences. But the defense claim that the juror lied during voir dire may disturb the appellate court.

Weinstein’s bail was revoked and he was remanded into state custody immediately upon being convicted by the jury. He is scheduled to be sentenced on March 11. Today was not as bad a day for him as it could’ve been, but it wasn’t a good day, either — and his legal troubles aren’t over yet.

Continue reading at National Review