Harvey Weinstein was recently convicted by a jury of two of the five charges contained in a Manhattan indictment (Criminal Sexual Act in the First Degree and Rape in the Third Degree). He will be sentenced on March 11 by the presiding judge at trial, James Burke. Weinstein faces a minimum sentence of five years in prison and a possible maximum sentence of 29 years. One can reasonably expect Weinstein to receive a sentence in the 10-15 year range, though it could be higher. We doubt he will receive a single-digit sentence, though, even in light of his advanced age and ill health.
Weinstein has a right to a direct appeal to the appellate court, in this case called the Appellate Division, First Department, based upon issues that were raised “on the record” (i.e. issues which can be pointed to in the trial transcript). The deadlines for filing and responding to an appeal are typically somewhat flexible in actual practice, as both sides routinely ask for and are awarded extensions of time to file their appellate arguments and responses. Given the complexity of this case, a reasonable estimate is that the appellate court will arrive at a decision about a year after sentencing, though it could potentially be sooner if the defense team submits their arguments quickly.
If Weinstein were to win his appeal, then he would earn a new trial on the two charges for which he was convicted. (He can never be convicted of or retried on the predatory sexual assault charges for which he was acquitted at trial.) If Weinstein loses his appeal, he could ask the Court of Appeals (the highest court in the New York State system) to hear his next appeal – this process is called “seeking leave” to appeal. Unlike the Appellate Division, the Court of Appeals is not required to hear his appeal. Typically, the Court of Appeals chooses to only consider cases with novel legal issues or cases of great importance, or cases involving issues about which lower courts in the state have disagreed. Theoretically, if the Court of Appeals denies leave, then Weinstein could seek the remedy called a writ of habeas corpus in state court, and then even pursue that type of appeal in federal court. This process of “exhausting” his appeals could potentially take several years.
The overwhelming majority of criminal appeals are unsuccessful, but Weinstein has some reasonable basis for an appeal here. In short, his chances probably aren’t good, but they’re better than the chances of most defendants. As a preliminary matter, readers should understand that although a single legal error by a trial court might not be sufficient to warrant a reversal of a conviction, if there are enough small errors in the trial, it can result in a conclusion by an appellate court that the trial was unsafe, in sort of a “death by a thousand wounds” situation.
First, there was some controversy regarding a juror who might have given misleading or even false answers about a book that she had written. The defense sought to have her removed from the jury based upon her misleading answers during voir dire, and the court refused to release her. This decision might prove to be problematic for the prosecution on appeal. There have been several cases in the past in which the failures of trial courts to remove biased jurors for cause have resulted in reversal on appeal; here, the juror gave potentially untruthful answers that perhaps should have resulted in her removal for cause. A significant issue involving just a single juror can be enough by itself to warrant reversal in some circumstances.
Also, some women who claimed to have been victimized by Mr. Weinstein – but who were not the basis for any of the criminal charges in the indictment – were permitted to testify as “prior bad act” witnesses, or “Molineux witnesses” under New York law. Generally speaking, prosecutors are not allowed to present evidence that a defendant has done other bad things if those things are not factually related to the crime at issue for the jury, nor are prosecutors allowed to prove that a defendant has a propensity to commit a certain crime. (Indeed, for reasons that are complicated to explain, that is the reason why most defendants with criminal records elect not to testify at trial). There are some very limited exceptions to this prohibition on prior bad act evidence, including for example demonstrating that a defendant has a unique modus operandus, or that the crime was part of an ongoing scheme or plan, or if there is an issue as to the motive or intent of the defendant in committing the instant crime. Objectively, as a former sex crimes prosecutor, I completely fail to see how the prior bad act witnesses that testified in this case were even remotely permissible under New York law. Though the prosecution argued that Weinstein had some sort of overarching plan to rape women who wanted to work in Hollywood, their testimony was plainly presented for the sole purpose of proving that Weinstein was a rapist, and that is precisely the reason for which this sort of testimony is supposed to be precluded. The Appellate Division needs to carefully consider whether rape cases deserve some sort of special treatment when it comes to prior bad act evidence – otherwise, a whole lot of defendants on trial for drug crimes, for example, could potentially be convicted by evidence of their past crimes. Frankly, the evidence against Weinstein without these prior bad act witnesses was not overwhelmingly strong at all. Indeed, the two prior complainants had some serious questions regarding their credibility. These prior bad act witnesses undoubtedly tipped the balance in the prosecution’s favor (as they appear to have done in Bill Cosby’s retrial, when they were permitted after having been precluded in the first trial). If I were an appellate judge on this case, I would have some serious concerns about the use of these witnesses in Weinstein’s trial in light of current New York law. (IMPORTANT NOTE: We are pleased to see that Harvey Weinstein was finally held accountable. However, as criminal justice practitioners who have worked as both prosecutors and defense attorneys, we want to see everyone receive a fair trial. We also don’t want to see dangerous precedents set, no matter how well-intentioned they might have been or how much they satisfied the public’s lust for justice. We thus have some concerns about the way his conviction happened, without feeling any sympathy for Mr. Weinstein.)
Weinstein will also likely make arguments that the expert witness’ testimony about the “typical responses of rape victims” was based on junk science and also essentially asked the expert to opine as to whether the purported victims in this case were actually victims or not. Weinstein also sought to present an expert as to the evolution of memories but was denied in that regard. Weinstein will also argue that the Judge was biased against him (based upon a terse comment made to him about his text messages in court), and that he did not receive a fair trial in Manhattan in light of the media coverage, and that his motion for a venue transfer should have been granted. All in all, his arguments will be taken quite seriously on appeal.
Finally, Weinstein’s lawyers will undoubtedly seek to get him bail pending his appeal. Such a thing is possible. A judge from the Appellate Division can grant bail pending appeal if s/he thinks that Weinstein has a reasonable chance of succeeding on appeal (and if they have sufficient assurance that he will not flee). Weinstein, of course, is a huge flight risk at this point, having been convicted of crimes with mandatory jail sentences, so his bail would have to be astronomical for him to have a chance at bail pending appeal. I don’t expect him to be successful in getting bail pending appeal, and he will probably be sent to an upstate New York prison facility within the New York State Department of Corrections while his appeal is pursued.
The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan sex crimes prosecutor. He also regularly handles criminal appeals.