The Weinstein Case: A Legal Explainer
Posted May 25, 2018 5:23 p.m. EDT
NEW YORK — Harvey Weinstein was arraigned Friday in Manhattan Criminal Court on charges of rape and criminal sex act, then released on bail. Here is a look at the challenges in prosecuting, and defending, a sex-crimes case aimed at a once-powerful target with high-priced lawyers.
Q: Why wasn’t Harvey Weinstein jailed before trial?
A: His lawyer, Benjamin Brafman, negotiated a bail package with the district attorney’s office in advance of the arrest and Judge Kevin McGrath agreed to it. In New York, the only question a judge may consider in weighing bail is risk of flight, not whether the defendant poses a threat to the community. In this case, prosecutors agreed to let him remain free if he posted $1 million bail, wore a tracking device, surrendered his passport and agreed not travel outside of New York and Connecticut. He has no previous record of arrests, and the measures are considered enough to ensure he will show up to his court dates. Defendants who do not have the money or assets to post bail usually end up held in the Rikers Island jail complex to await trial.
Q: How soon will he go on trial?
A: It is hard to predict, but it could be more than a year. For starters, a grand jury has yet to indict Weinstein. That must happen within six months. By law, there are deadlines intended to speed things along. But both sides often waive those deadlines in high-profile cases.
Q: What happens now?
A: Weinstein is set to appear next in Criminal Court in Manhattan on July 30, when he’ll learn whether a grand jury has indicted him. If it has, then he will be arraigned in state Supreme Court in Manhattan and the long run-up to a trial begins.
Q: Who will the judge be?
A: At his July appearance, one of several criminal court judges covering that day will preside. Afterward, the case will likely be referred to Justice James Burke, who handles most of the cases brought by the sex crimes bureau of the Manhattan District Attorney’s Office. But a final decision about which Supreme Court justice gets the case belongs to the administrative judge, Justice Ellen Biben.
Q: Could there be more criminal charges against Harvey Weinstein?
A: Yes. First, the inquiry by the office of the Manhattan district attorney, Cyrus R. Vance Jr., is continuing. An investigative grand jury is reviewing evidence of other sexual assault allegations against Weinstein as well as possible financial crimes relating to his using money to silence people. Second, since last year, federal prosecutors have been investigating possible financial improprieties by Weinstein, focusing on fraud allegations related to an AIDS charity fundraiser. And they have broadened their inquiry to include allegations Weinstein may have violated federal stalking laws in his dealings with women who have accused him of sexual assault. Additionally, inquiries were underway in London and Los Angeles.
Q: Why didn’t the statute of limitations preclude charging Weinstein in connection with allegations from 2004?
A: The statute did not apply because Weinstein’s victims described acts involving “forcible compulsion” — crimes for which time limits for prosecuting them were lifted after 2001.
Q: Why didn’t Weinstein enter a plea in court on Friday?
A: Weinstein hasn’t been indicted, so no plea is necessary. Defendants typically do not enter a plea of guilty or not guilty upon being arraigned, where the court simply advises them of the criminal charges. A plea would be expected at a later appearance in state Supreme Court, and Brafman said Weinstein intends to plead not guilty.
Q: Will the victims have to testify?
A: They certainly must if they are subpoenaed. Prosecutors would be hard pressed to obtain a guilty verdict at trial if the victims did not testify.
Q: Will Weinstein testify?
A: He does not have to and often, if the evidence appears especially strong, the defendant will opt not to take the witness stand. However, if there is one accuser — and it boils down to a “he-said, she-said,” debate — the defendant might choose to make the case a credibility contest and testify to deny the allegations.
Q: Who is his lawyer?
A: Benjamin Brafman, a former Manhattan prosecutor, is Weinstein’s criminal lawyer. Regarded as one of the sharpest trial lawyers in New York, he has successfully defended a who’s who of influential people, including Sean Combs, the rap star, against gun possession and bribery charges in 2001. In 2011, he fended off a sexual assault allegation made against Dominique Strauss-Kahn, head of the International Monetary Fund. Weinstein has been represented in the past by Elkan Abramowitz, a partner at the law firm Morvillo Abramowitz Grand Iason & Anello, who took up his case in connection with accusations, in 2015, that he had sexually assaulted an Italian model, Ambra Battilana, in Manhattan.