Harvey Weinstein verdict makes a conviction in L.A. more likely, experts say

Harvey Weinstein, second from left, leaves Manhattan Criminal Court after prosecutors completed their closing arguments in his rape trial on Friday.

Feb. 24, 2020 3:36 PM PT

Monday’s verdict in Harvey Weinstein’s New York rape trial will likely help Los Angeles County prosecutors secure a conviction against the disgraced movie mogul in his California case, legal analysts said.

“This is very bad news for Harvey Weinstein,” said USC law professor Susan Estrich, who has written extensively about sexual assault cases. “The defense Weinstein tried to use failed. And if it didn’t fly in New York for rape, it is not going to fly in California for sexual battery.”

On the eve of Weinstein’s New York trial, L.A. County prosecutors charged Weinstein with forcible rape, forcible oral copulation, sexual penetration by use of restraint and sexual battery by restraint.

The New York jury found Weinstein guilty of a criminal sexual act in the first degree and rape in the third degree. Those two counts were connected to individual allegations made by Mimi Haley, a former Weinstein Co. production assistant, and Jessica Mann, a once-aspiring actress.

But Weinstein was acquitted on the two most serious charges of predatory sexual assault, which each carried a potential life sentence.

In order to convict on those counts, jurors needed to believe the testimonies of not only Haley and Mann, but also “Sopranos” actress Annabella Sciorra, who said Weinstein barged into her Gramercy Park apartment in late 1993 or early 1994 and raped her.

Sciorra’s allegation was too old to prosecute individually. And Monday’s verdict made it clear that one or more jurors struggled with her account, believing that force was not used — a factor that needed to be proved to convict on the predatory assault charges — or that her story was not entirely true.

“Any older allegation of any nature, not just sexual assault, is harder to prove and establish,” said New York-based attorney Paul DerOhannesian, an expert on sexual assault cases.

The charges in L.A. County stem from accusations brought by a pair of women who say the movie mogul attacked them in hotels in Los Angeles and Beverly Hills in 2013.

One of the women is a former model and actress who described Weinstein’s alleged assault to The Times in 2017, according to her attorney, David Ring.

The other woman, Lauren Young, testified in Weinstein’s Manhattan trial as one of three “prior bad acts” witnesses. Young, who said she met Weinstein just one time, alleges the producer trapped her in a hotel bathroom and groped her breasts while masturbating.

The L.A. County case won’t proceed before Weinstein’s March 11 sentencing in New York, according to the Manhattan district attorney’s office.

That means Weinstein’s defense team will have plenty of time to scrutinize Young’s testimony ahead of a Los Angeles trial, according to Dmitriy Shakhnevich, a criminal defense attorney who now teaches at the John Jay College of Criminal Justice in Manhattan.

There are already some evident weaknesses in Young’s testimony, including initial confusion over when the assault happened and a conflicting account from model Claudia Salinas, who Young said helped Weinstein trap her. In the New York courtroom, Salinas denied aiding Weinstein in an assault.

“That never happened,” Salinas told jurors.

Loyola law professor Laurie Levenson, a former federal prosecutor, said it remains possible that the L.A. County charges will be negotiated and a plea bargain will be entered without a trial.
At the same time, the New York conviction will make it easier for prosecutors to prove their case in Los Angeles, experts say. The first-degree criminal sex act conviction establishes that Weinstein engaged in an act of force, which could help California prosecutors prove propensity for such behavior, DerOhannesian said.

“If that’s admissible as proof, it’s a difficult fact to overcome,” DerOhannesian said.

Weinstein being in custody will also present a major hurdle for the producer’s L.A. defense team.

“It’s more difficult when you’re incarcerated to defend yourself,” DerOhannesian said, “and even more challenging when you’re convicted cross-country, sitting in a New York state prison.”

Levenson noted that L.A. County prosecutors will have a preview of how the defense will attack their case and that they can “prepare accordingly.”

The New York conviction could also lead to a more severe punishment in Los Angeles if Weinstein is convicted there. Judges consider prior convictions when they sentence defendants, DerOhannesian said.

Other legal analysts said Monday that the New York jurors appear to have weighed the evidence carefully and delivered a verdict that would be difficult for Weinstein to overturn.

Stanford law professor Robert Weisberg, an expert in criminal law, said the decision was not a “rough compromise, but a pretty thoughtful verdict given the complexities of the evidence.”

Before the verdict, legal experts predicted that continued communication between Weinstein and accusers Mann and Haley could be a sticking point for jurors.

But the conviction shows a shift in society’s understanding of the various contexts in which an assault can occur, and the different ways victims might behave after an assault, said Wendy Murphy, a professor of sexual violence law at New England Law in Boston and a former sex crimes prosecutor.

“It shouldn’t matter if you’re sexually assaulted in your own home, by your husband, by your boss,” Murphy said. “The law should apply the same to each circumstance.”

The Weinstein conviction serves as vindication of the #MeToo movement, which was spurred in 2017 by the chorus of women who spoke out about their experiences with Weinstein.

But it should also be noted that the charges Weinstein was found guilty of are among the lowest levels of sex crimes in New York, Murphy said.

“It’s hard to not see that as a discount that he doesn’t deserve,” Murphy added.

Stanford law professor Michele Dauber, who specializes in sexual violence law, said she was “obviously disappointed” that Weinstein was acquitted of the two most serious charges. But the verdict was still an “enormous victory for women and sexual assault victims,” she said, and showed that “ordinary Americans understand the severity and danger of sexual violence better than many members of the legal profession.”

Dauber was referring to New York prosecutors, who she says filed charges against Weinstein only under “irresistible pressure from the #MeToo movement.”

“The verdict was a sign that being white and powerful will not necessarily provide a get-out-of-jail-free card anymore when it comes to sexual violence,” Dauber said.

Harvey Weinstein verdict in New York makes a conviction in L.A. more likely, experts say

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