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Can Harvey Weinstein Get a Fair Trial in LA?
Harvey Weinstein will soon be extradited to Los Angeles to face 11 sexual assault charges following an indictment earlier this month.
But with a case as well-documented and high-profile as his, and an effort from Weinstein to appeal his 2020 New York conviction on felony rape and sex crime charges, how will the L.A. case play out since the disgraced mogul is currently serving serving a 23-year term in a maximum-security facility in New York State — and can he get a fair trial given all the publicity around his first conviction on similar charges?
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Read on for answers to questions you may have about Weinstein’s impending L.A. trial.
Weinstein was charged in L.A. last year. Why hasn’t the trial begun yet?
Yes, the Los Angeles District Attorney’s office charged Weinstein in January 2020 with rape and sexual battery under then-D.A. Jackie Lacey. At the time, the D.A.’s office expected to extradite Weinstein to L.A. shortly after his Manhattan trial concluded, but the process has continually been delayed due to the COVID-19 pandemic.
But as the situation in L.A. has continued to improve — the county is in the second-least restrictive reopening tier and, as of this week, has numbers that would qualify it for the least-restrictive tier — additional requests to delay Weinstein’s extradition because of COVID aren’t likely to work.
Earlier this month, at another extradition hearing in Erie County, New York, Weinstein’s attorneys were also able to delay the proceedings further due to issues with the extradition paperwork filed by the L.A. D.A.’s office. But that paperwork issue was resolved by Friday’s extradition hearing, in which the judge is expected to grant the D.A.’s office extradition request.
Weinstein still has 30 days to request New York Gov. Andrew Cuomo to intercede — a move that his attorney Norman Effman already said earlier this month that he planned to do. But given that Cuomo is embroiled in a sexual harassment scandal of his own, it’s highly unlikely that the governor would block Weinstein’s extradition to L.A., according to Neama Rahmani, a former federal prosecutor who leads West Coast Trial Lawyers.
So, barring any other unexpected delays, Weinstein could potentially be extradited to L.A. by June.
“He’s going to have to stand trial in L.A. All these tactics are nothing more than delay tactics,” Rahmani said. “It’s not a matter of if but a matter of when he’s coming out to California.”
Why was Weinstein indicted by a grand jury in L.A.?
At an extradition hearing earlier this month, Weinstein’s attorneys revealed that the producer was indicted by a grand jury on 11 sexual assault charges for five incidents that took place between 2004 and 2013 in L.A.
The decision to bring the case before a grand jury was an “extremely unusual” move in California, according to Mark Geragos, a criminal defense attorney.
While the grand jury route is more common on the East Coast and in federal cases, typically in California with criminal complaints, the defendant has a right to a preliminary hearing before a judge if they face felony charges. In that hearing, a judge will determine whether there is probable cause to move forward with a trial.
Rahmani said the L.A. D.A. used the grand jury method to speed up the case, both because of the delay in getting a preliminary hearing for Weinstein because of COVID and to avoid an “unnecessary” hearing during the pandemic.
But the grand jury move could also provide room for Weinstein’s defense to further delay the trial. Geragos said there is a more “robust obligation” in California for prosecutors to present exculpatory evidence to a grand jury; once the indictment is unsealed and the transcripts are released, Weinstein’s defense could potentially challenge whether such evidence was excluded.
Still, Rahmani said it was “highly unlikely” that the indictment would be dismissed.
“Only in the most egregious cases would a judge actually dismiss an indictment,” Rahmani said. “That’s a very extreme remedy and something like that is highly, highly unlikely.”
And, in the unlikely case that the indictment is dismissed, Rahmani said the D.A.’s office could just return back to its original criminal complaint and move forward with a preliminary hearing.
Will Weinstein’s request to appeal his New York conviction have an impact on the L.A. case?
The short answer is no. The two cases are separate and the charges for the L.A. trial are based on the accounts of different women than those in the New York trial (one of the women in the L.A. case did, however, testify as a “prior bad acts” witness in the New York trial).
It’s very unlikely that Weinstein will be able to overturn his New York conviction, according to Rahmani. But if the disgraced producer was successful in doing so, then all eyes would be on the L.A. trial.
Geragos said he didn’t see the point of the L.A. D.A.’s office going through the effort to extradite Weinstein and try his case, unless he was able to successfully appeal his New York conviction.
“Only a prosecutor’s office with no budget could be trying to extradite somebody who’s sitting in New York facing 23 years, which is the rest of his natural life, to drag him across the country at great expense, and in a COVID environment, to supposedly want to try a case that is meaningless unless the New York case gets reversed,” Geragos said.
Rahmani agreed, noting that the L.A. D.A.’s office should have brought charges against Weinstein much earlier after the Los Angeles and Beverly Hills police began investigating Weinstein in late 2017.
“This is someone who should have been charged here in L.A. long ago,” Rahmani said. “Harvey Weinstein is a very easy target and he should be prosecuted, they’re doing the right thing, but there have been many other cases, and even Weinstein’s case originally, that really wasn’t prosecuted as aggressively and as quickly as it should have been.”
How will jury selection work if Weinstein’s New York conviction is so well-known?
Prospective jurors for Weinstein’s L.A. trial will be instructed by the judge that they cannot consider the disgraced producer’s rape conviction in his Manhattan trial to be evidence of his guilt in the L.A. case.
Geragos said he didn’t expect the jury to be sequestered in the L.A. trial because many judges in California have not done so in recent trials because of cost concerns. But Geragos said the defense team should actually be looking for jurors who admit that they are aware of Weinstein’s New York verdict but are willing to put that aside to listen to the evidence in the LA case.
“Somebody who says they’d never heard about it or don’t know anything about it, I would either question their pop-culture bona fides or whether they’re telling you the truth,” Geragos said. “I mean, how can you live in Los Angeles County and not have heard of it?”
Robert Swafford, a jury consultant who founded Strike for Cause, told TheWrap last year shortly after Weinstein’s New York conviction that the former producer’s defense team would be “trying to get rid of people” during jury selection in L.A.
“If you got rid of all the people who are telling the truth about having formed an opinion about his guilt, then what that would leave you with is a very strong defense jury,” Swafford said.
If Weinstein is convicted in L.A., how will his prison sentence work?
The specifics of Weinstein’s sentencing, should he be convicted in the L.A. trial, will ultimately be up to the presiding judge.
Rahmani said he would expect the sentencing across New York and L.A. to be consecutive, not concurrent, because the victims are different in both cases. That means once Weinstein finishes his 23-year sentence in New York, he would then need to head to California to start serving his sentence for crimes committed in that state.
“A concurrent sentence would be a miscarriage of justice,” Rahmani said. “And, frankly, why are you trying a case in California if you’re just going to get concurrent time?”
During the trial, Weinstein’s time spent in custody would likely count toward his sentence in California, should he be convicted. But if he were acquitted in the L.A. case, the presiding judge in the New York case — Justice James Burke — would decide whether his time in L.A. would count toward his New York prison sentence, Rahmani said.
But as the attorneys who spoke with TheWrap mentioned earlier, the 69-year-old Weinstein may not even live long enough to carry out his full sentence in New York and Los Angeles, should he be convicted in the latter.
“I think Harvey Weinstein will die in prison, even if he weren’t charged here in California,” Rahmani said.