How Long Will Harvey Weinstein's Prison Sentence Be? His Lawyer Isn't Optimistic

Harvey Weinstein enters New York City Criminal Court on February 24, 2020 - Getty 3-H 2020
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On Wednesday morning, at a courtroom in lower Manhattan, Supreme Court judge James Burke will decide how many years fallen movie mogul Harvey Weinstein will spend in a New York State prison.

On Feb. 24, a jury of seven men and five women convicted Weinstein on two of five potential counts: a first-degree Criminal Sexual Act charge and third-degree rape. Taken together, Weinstein, 67, faces a minimum of five years and a maximum of 29 years in prison.

In an interview with The Hollywood Reporter, Weinstein's New York-based lawyer, Arthur Aidala, suggested that his team is expecting the worst. "I cannot say I'm optimistic," he said. "I am nervous about it."

The prosecution, in a letter sent to the judge Friday, asked for a "lengthy" sentence.

Citing case law, the prosecutors wrote that it is "totally appropriate in this case to communicate to a wider audience that sexual assault, even if perpetrated upon an acquaintance or in a professional setting, is a serious offense worthy of a lengthy prison sentence."

The sentencing letter listed multiple accounts of sexual assault and "abusive behavior" in the workplace, going back several decades.

The prosecution concluded the letter by telling the judge, "Based upon the totality of the information before this Court, namely: (1) the evidence adduced at trial regarding defendant's sexual assaults of Miriam Haley and Jessica Mann; (2) his sexual assaults of the Molineux witnesses, Tarale Wulff, Dawn Dunning, and Lauren Young, all committed under strikingly similar circumstances; and (3) his additional acts set forth in this letter that show a lifetime of abuse towards others, sexual and otherwise, the People will ask the Court to impose a sentence that reflects the seriousness of defendant's offenses, his total lack of remorse for the harm he has caused, and the need to deter him and others from engaging in further criminal conduct."

In their own letter to the judge Monday night, Weinstein's team pushed for a five-year prison sentence, the minimum. "By way of background, Mr. Weinstein, like most people, is complicated and the trial did not fairly portray who he is as a person," they wrote. "His life story, his accomplishments, and struggles are simply remarkable and should not be disregarded in total because of the jury’s verdict.... Mr. Weinstein has tried in his life’s work, through charitable endeavors, to even the odds for people who were not always afforded equal opportunities."

Prominent #MeToo attorney Debra Katz, who represents Dunning, will attend the sentencing hearing and said she expects a lengthy punishment.

"I think he's going to face a very steep sentence, a very harsh sentence," she told THR. "I think that's appropriate, given that this is somebody who deserves the harshest sentence possible not only as a deterrent to him, but to deter others who might engage in similar behavior."

Katz said that Weinstein "has shown no contrition, and I think that's going to be reflected in the sentence that he's given."

The jury convicted Weinstein on the second count he faced, which relates to Miriam Haley, and the fifth, which relates to Jessica Mann, both of whom will have the opportunity to speak during Wednesday's hearing.

The mandatory minimum for Count No. 2 — a first-degree Criminal Sexual Act — is five years and the maximum sentence is 25 years. The maximum sentence for the third-degree rape count is four years in prison.

Judge Burke has the discretion to decide whether the sentences for each charge can run consecutively or concurrently, said Deborah Tuerkheimer, a Northwestern University law professor who spent five years as an assistant district attorney in New York County.

"For victims, it can often feel important to have those sentences separately run," she said, describing the "symbolic importance" of consecutive — rather than concurrent — sentences.

"If I had to guess, he may issue consecutive sentences because in doing so the judge would recognize that there were two victims here," said former Westchester County prosecutor Lisa A. Linsky, now a trial partner at McDermott Will & Emery. "This was not one crime — there were two separate crimes.... That would certainly be a justification."

Weinstein, like Mann and Haley, will also have an opportunity to speak at Wednesday's hearing — if he so chooses.

"It would be surprising if Mr. Weinstein had a complete about-face and at the time of his sentence expressed any kind of remorse for his conduct or sorrow on behalf of the survivors," Linsky said. "On the other hand, he is trying to convince the judge to give him a lenient sentence."

After Wednesday's sentencing, Weinstein's team is expected to file a formal appeal of his conviction.

But Tuerkheimer thinks that the jury's "careful verdict...really does help the State" in the event of an appeal. The appeal, she said, might have been stronger had the jury come back with a guilty verdict on all five charges Weinstein faced, rather than convicting him on two of five.

"The split verdict suggests that the jury wasn't prejudiced by the admission of certain kinds of evidence," she said. "It was able to reach a not-guilty decision on certain charges. The number of Molineux witnesses didn't prevent the jury from holding the prosecution to the burden of proof."