Reading the Tea Leaves at the Harvey Weinstein Trial

South entrance of NYC Criminal Courts Building / Photo by Caroline Chen for NY City Lens

The South entrance of NYC’s Criminal Courts Building / Photo by Caroline Chen for NYCityLens


The Harvey Weinstein trial will live to see another week after the jury failed to deliver a verdict, despite four days of deliberations. They’ll try again starting on Monday. Here’s where things stand in this complicated case.

Late Friday afternoon, February 21, just before court was dismissed for the weekend, the jury sent a note to Judge James Burke asking if it were allowed to return a unanimous verdict on three of the lesser charges while splitting on the two more serious charges. Those two counts,  of predatory sexual assault, carry a maximum of life in prison.

“We the jury request to understand if we can be hung on 1 and/or 3 but unanimous on the other charges,” the note read. Judge Burke told the jurors to resume deliberations on Monday morning.

Immediately, speculation about what’s next began swirling. NYCityLens spoke with several criminal defense attorneys and former prosecutors to sort through the tea leaves. Here’s what we found.

Are partial verdicts common?

They’re not uncommon, said Steven Goldman, a criminal defense lawyer, but this isn’t quite a partial verdict yet. It’s just a note with a question. Typically, Goldman said, the judge will give the jury a few more days to see if they can reach a unanimous decision before he accepts a partial verdict.

If the jury is still split on any of the charges, the judge will declare a mistrial on those charges.

According to The New York Times, Weinstein’s lawyers indicated in court on Friday that they would be willing to accept a partial verdict. The prosecutors on the other hand pushed back. More on why below.

So has Weinstein been found guilty on at least some charges?

We don’t know.

Mark Bederow, a former assistant district attorney in Manhattan,  said that until the jury comes back and tells the judge it has a unanimous decision, and the verdict read is “guilty”—any outcome is still on the table.

“The note is a hypothetical,” Bederow said. Goldman agreed, saying that an acquittal was not out of the question.

Bederow cautioned people from jumping the gun because jury notes, like the one sent to the judge on Friday, are common. Juries could send notes for a variety of reasons he said—including needing to clarify the charges in a complex case.

The verdict sheet in this case is like a flow chart—if this, then that; if this second route, then this second option. For example, if the jurors find Weinstein guilty on count 1, they’re told to skip count 2 and proceed to count 3.  And if they find him not guilty of count 1, then, depending on the reasons why, they proceed in two different ways.

According to the verdict sheet, counts 2, 4, and 5 are standalone counts and are considered to be the less serious crimes. These charges require the jury to believe just one accuser—Miriam Haley or Jessica Mann—and carry a maximum sentence of 25 years.

The first-degree rape and third-degree rape charges depend on the testimony of Mann, who alleges that Weinstein assaulted her in March 2013, while the criminal sexual act charge requires the jury to believe Haley. Haley accused Weinstein of forcing oral sex on her at his apartment.

Meanwhile, the two counts of predatory sexual assault require jurors to believe two people for each count—Annabella Sciorra, a former Sopranos actress who accused Weinstein of raping her in the early 1990s,  for count 1, and Mann and Sciorra for count 3. These class A felonies, according to Bederow and another attorney, Lance Fletcher, carry a maximum of life in prison.

“The verdict sheet is convoluted,” Bederow said. “The jury may very well not understand the law and want the judge to tell them.”

What does this note mean?

But even with no verdict, the implications of the jury’s note are not good for Weinstein.

“I think it’s safe to assume that every lawyer involved in this case in the courtroom, when they heard the note, thought that ‘that my god, he must be guilty of at least one of the lesser counts,’” Bederow said.  “If you’re a defense [lawyer], and you got a note like that? It’s a disaster. It’s the last thing short of ‘guilty’ that you want to hear.”

The jury could still acquit Weinstein on the lesser three charges. But if that were the case, the lawyers said, then they wouldn’t need to deliberate the predatory sexual assault counts.

“If they are now saying they’re hung on the top, but not on the lesser three,” said Julie Rendelman, a former Brooklyn assistant district attorney. “The logical conclusion is that they have found him guilty of at least one of the underlying crimes.”

Connecting those dots, Bederow said, could be the reason why Weinstein’s defense team is willing to accept a partial verdict.

“They’re well aware,” he said. “Of the not-so-good nature of this note, and strategically would want to cut their losses.”

Conversely, he said, that’s exactly why the Manhattan District Attorney’s office is pushing back and saying ‘no way’.

“They see that this can only get worse for Weinstein,” Bederow said. “If this note is true, then every lawyer who does this for a living knows what that means. It means Harvey’s going to prison.”

Is there any good news for Weinstein?

There is a glimmer of hope for Weinstein. As Bederow points out: Who knows what the jury is thinking or actually doing? Also important, he said, is that this note came on Friday afternoon. The jury will have Saturday and Sunday off before revisiting the case.

“If there’s any good news for the Weinstein people,” Bederow said. “A cooling off period over the weekend is probably not a bad thing.”

The extra time—court was dismissed an hour earlier on Friday because Weinstein’s lead lawyer, Donna Rotunno, had to attend a funeral—could cause jurors to change their minds Bederow said.

“The calculus could change by Monday,” Bederow said.

What happens if there is a hung jury on some counts?

If  the jury remains split on one or more counts—then the prosecutors have to make a choice whether or not to retry him on those counts. They wouldn’t be able to retry him if the jury finds him not guilty.

“I would say the odds of the Manhattan D.A. re-trying Harvey Weinstein are 100 percent,” Bederow said.

If that happens, the prosecutor would d start from scratch. Fletcher said that the district attorney’s office would be able to change the charges, present a brand new trial, and could even bring in more witnesses if they chose to do so.

Regardless of what the Manhattan prosecutors choose to do in that scenario, Weinstein is still facing charges in Los Angeles.

Win or lose in New York, “he’s facing God knows how many years in prison in California,” Bederow said.

Will this case have an impact in Los Angeles. where Weinstein is also being charged?

Yes, the attorneys said, for a myriad of reasons. It depends on what he’s convicted of—or not convicted of—in New York and, more importantly, how his lawyers choose to proceed from there.

Rendelman and Bederow, both former district attorneys, say that there will be pressure on Los Angeles to get a conviction if Weinstein is acquitted in New York.

“He’s Harvey Weinstein, there’s public cry for justice for all these women,” Goldman added. “He started the ‘Me Too’ movement. They’re looking to get convictions against him wherever.”

If Weinstein is found guilty in his current trial, Goldman said that that opens the door for a potential plea bargain in Los Angeles so that the media mogul could serve any time in jail concurrently.

That likely won’t happen, though, according to almost all the lawyers interviewed. All of them said if they represented Weinstein, they would appeal a guilty verdict. The potential reasons vary—from bias in the jurors, to issues with the charges, to objections about the prosecution showing pictures of him naked. But at the end of the day, they said, despite his notoriety, fame, and wealth, Weinstein is no different than any other defendant.

“Everybody thinks he’s a scumbag, everybody thinks he’s a horrible person,” Goldman said. “And he probably is. But each criminal case still needs to be evaluated on its own merits. Even if he is Harvey Weinstein.”