Understanding the Weinstein indictment and the next steps
According to numerous reports, Harvey Weinstein has been indicted on charges of Rape in the First Degree, Rape in the Third Degree, and Criminal Sexual Act in the First and Third Degrees. The first-degree charges are Class B violent felonies, meaning that they are punishable by a minimum of 5 years and a maximum of 25 years in prison. Rape in the First Degree (Penal Law Section 130.35) applies to cases in which defendants allegedly use forcible compulsion (physical force or the threat of physical force or harm) to engage in non-consensual vaginal intercourse. Criminal Sexual Act in the First Degree (Penal Law Section 130.50) applies to cases in which the defendants have allegedly used forcible compulsion to non-consensually penetrate mouths or anuses with their penises. (Thus, the distinction between “Rape” and “Criminal Sexual Act” under New York criminal law is the orifice being penetrated.) The third-degree varieties of these charges most commonly are applied in situations where a person is “incapable of consent,” meaning physically helpless (i.e. asleep or intoxicated). These third-degree charges are Class E felonies without mandatory minimum prison sentences.
It should come as no surprise that Weinstein was indicted given that he was arrested and preliminarily charged with these same crimes. Indeed, an indictment by the grand jury was basically a sure thing once the decision to arrest Weinstein was made. Weinstein could have testified before the grand jury in his own defense but that would have been a tactical mistake. A grand jury presentation in a case like this normally involves a prosecutor simply calling the complainant to testify under oath before the grand jurors about the crime. A defendant being indicted (for any crime, not just rape and sexual assault) does not get to listen to the witnesses testifying against him in the grand jury, nor does his attorney have the right to cross-examine those witnesses or make arguments to the grand jury. However, by testifying before the grand jury, Weinstein would have subjected himself to being cross-examined by a prosecutor under oath. That decision would have locked him into a version of events that he could not later modify or correct for trial. Equally problematically, it would have given the prosecutor an opportunity to hear Weinstein’s trial testimony prior to trial. This would have afforded the prosecutor months (or maybe even years) to prepare a scathing cross-examination for trial after having a “practice round” with him in the grand jury. Given that the odds of prevailing at the grand jury are normally terrible for a defendant – and probably especially so for Weinstein given the publicity surrounding his situation – there was realistically very little for Weinstein to gain from testifying before the grand jury. Most defendants understandably decline to do so.
The odds of prevailing in the grand jury are poor because it does not take much convincing of the grand jury for a prosecutor to earn an indictment. A grand jury consists of 23 people, and only twelve (12) of those 23 must find that there is reasonable cause to believe that the defendant has committed a crime. Plainly put, the prosecutor only need convince half of the grand jury that it is possible that the defendant is guilty. That’s an extremely low bar to clear, and it is the reason why lawyers routinely quip that a decent prosecutor “can indict a ham sandwich” if so motivated.
Now that Weinstein has been indicted, he will be arraigned in Supreme Court on the new accusatory instrument (the indictment) in about six weeks or so. Prosecutors can request an increase in bail for defendants who have been indicted, but I would not expect that to be requested or granted at this point. After all, Mr. Weinstein has already posted a considerable amount of negotiated bail and will present himself on time at his arraignment.
Weinstein’s attorneys will file pretrial motions with the court following this Supreme Court arraignment. In this case, I expect that we will see considerable pre-trial litigation (motions in limine) regarding the testimony of other alleged victims of Mr. Weinstein. In the Bill Cosby case, by way of comparison, the prosecutors were permitted to present testimony of several other victims to demonstrate Mr. Cosby’s modus operandus in subjecting women to non-consensual sexual contact. The trial judge permitted this testimony in Mr. Cosby’s case even though Mr. Cosby was not charged with any crimes involving those other women. Something similar could happen in this case, because there appear to be many Weinstein victims. Obviously, this is an incredibly important issue for Weinstein’s defense team, as the testimony of other similar victims could easily make the case against him overwhelming (just as it did in Mr. Cosby’s case, ultimately).
Interestingly, Weinstein’s defense attorney has claimed that he intends to seek dismissal of the indictment by the reviewing judge. In all cases, a Supreme Court judge must review the transcript from the grand jury presentation to ensure that the prosecutor properly instructed the grand jury as to the applicable law and that the evidence presented was legally sufficient. Defense lawyers routinely move for dismissals of indictments without having read the legal instructions that were given to the grand jury because they do not ever get copies of those instructions. And, defense attorneys normally do not normally have copies of the witnesses’ grand jury testimony at that point, as those documents are usually turned over shortly before the beginning of trial. So, I admit that I am puzzled as to why the defense attorney seems confident that the indictment will be dismissed upon his motion. It seems extraordinarily unlikely that the indictment would be legally insufficient. After all, the judge would have to affirm the sufficiency of the indictment so long as it is theoretically possible that the defendant is guilty where it is assumed that the witnesses were believed by a jury. Thus, in a sexual assault case, so long as the complainant says that she was subjected to non-consensual sexual contact, an indictment is likely to be sufficient.
I suspect that the defense believes that the indictment will be dismissed because the prosecutor failed to present evidence of the defendant’s innocence. This is potentially an interesting argument, albeit a somewhat unusual one. A prosecutor normally controls what evidence is presented to a grand jury, so the presentations are routinely one-sided. However, there is some case law to support the proposition that a prosecutor must present a “fair” presentation to the grand jury, meaning that if there is evidence of the defendant’s innocence, that the prosecutor must also present it along with the evidence of the defendant’s guilt. For example, if a witness known to the prosecution says that a defendant shot someone on Monday, but another witness known to the prosecution says that the witness was somewhere else on Monday, then that second witness should be presented to the grand jury (though, honestly, the prosecution should be rethinking its decision to indict at that point). The defense in this case may have told the prosecutors that they were obligated to present evidence of a consensual relationship between a complainant and the defendant. Of course, even if there exists evidence that the defendant and the complainant had a consensual relationship at one point, it does not mean that a rape did not occur as the complainant described. So, the prosecutors probably refused to present that evidence, and that would explain the defense’s somewhat bold statements about the dismissal of the indictment. (Of course, puffery by defense attorneys speaking to the press is hardly uncommon).
Plea bargain negotiations would normally take place after the indictment as well, but I do not suspect that there will be any agreements here between the prosecution and defense. Legally, the prosecution cannot offer Weinstein anything less than a plea to a Class C violent felony, which carries a minimum jail sentence of 3.5 years in jail. (It might be possible if the DA took the rather unusual and extreme step of asking a judge to dismiss the top count of the indictment for the sole purpose of effectuating a plea bargain agreement, but a judge would be unlikely to grant such a motion without any better reason than that).
Thus, it seems that we should probably expect a trial sometime in about twelve to eighteen months from now (and it certainly could be farther away than that). Another blog post will discuss the strategies the defense is likely to employ.
The author of this post, Matthew Galluzzo, is a former Manhattan sex crimes prosecutor now working as a criminal defense attorney with the law firm of Matthew Galluzzo PLLC.