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Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: Harvey Weinstein was sentenced to twenty three years in prison

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Speaker 1: for raping one woman and sexually assaulting another after decades

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Speaker 1: of using his immense power in Hollywood to target aspiring

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Speaker 1: actresses and sparking the Me Too movement. It's a virtual

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Speaker 1: life sentence for the sixty seven year old who was

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Speaker 1: in poor health. Weinstein's lead defense attorney, Donna Rotuno, called

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Speaker 1: the sentence up scene. I am um overcome with anger

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Speaker 1: at that number. I think that number is a cowardly

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Speaker 1: number to give. I think the judge caved, just as

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Speaker 1: I believe the jury caved. Joining me as former federal

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Speaker 1: prosecutor Jennifer Rogers a lecture at Columbia Law School. This

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Speaker 1: sentence was short of the maximum, but there were audible

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Speaker 1: gasps in the courtroom when the judge announced the sentence.

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Speaker 1: How harsh was this sentence? Well, it's very high in

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Speaker 1: terms of the range that was available to the judges.

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Speaker 1: Just two years short of the max, and the minimum

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Speaker 1: was five years. And he's, you know, almost sixty eight

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Speaker 1: years old. So when you think about it that way,

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Speaker 1: and also when you think about it compared to kind

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Speaker 1: of the average sentence for the two crimes of conviction,

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Speaker 1: you know, the two counts he actually was convicted of.

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Speaker 1: It's very high in that respect too, So in those ways,

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Speaker 1: it definitely was a sentence on the very high end.

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Speaker 1: Judge James Burke said that although this was Weinstein's first conviction,

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Speaker 1: it wasn't a first offense. So was he basing his

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Speaker 1: sentence on the allegations of other women, allegations that were

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Speaker 1: not proven at trial since the jury acquitted him of

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Speaker 1: the most serious charges against him. Was Weinstein being sentenced

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Speaker 1: as the emblem of the me too movement? I don't

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Speaker 1: think so. You know, judges are allowed to take into

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Speaker 1: account conduct that was not proved even at trial, and

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Speaker 1: the prosecutors did make an aggressive pitch for the judge

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Speaker 1: to do that, listing, you know, thirtysome episodes spanning forty

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Speaker 1: years that Harvey Weinstein had done according to their investigation.

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Speaker 1: But the judge did say during the sentencing, in response

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Speaker 1: to the defense lawyer's plea that he not consider those

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Speaker 1: uncharged allegations, he said something to the effect of, I'm

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Speaker 1: reading the letter through the same prism you are, so

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Speaker 1: that suggests to me that he didn't actually put undue

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Speaker 1: emphasis on the matters in the letter that were uncharged.

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Speaker 1: But remember, six women testified at trial. The judge sat

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Speaker 1: through the entire trial, and the sentence suggests to me

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Speaker 1: that while the defendant was not convicted of those top counts,

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Speaker 1: the judge was convinced by the testimony at trial, and

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Speaker 1: so to me, it said he didn't make that decision

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Speaker 1: based on, you know, Harvey Weinstein being sort of a

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Speaker 1: symbol that should be punished, or even based on the

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Speaker 1: uncharged allegations of the prosecutor's letter, but rather on the

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Speaker 1: evidence that he saw at trial from the six women

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Speaker 1: who testified there, and that caused him to go much

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Speaker 1: higher in the sentencing range than he otherwise might have.

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Speaker 1: Arthur Idalla, one of Weinstein's lawyers, said the sentence was

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Speaker 1: three times as long as the one the same judge

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Speaker 1: had given a man convicted of first degree rape and

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Speaker 1: the drugging of a female employee. Will that make a

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Speaker 1: good appellate court challenge the length of the sentence, It's

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Speaker 1: not a particularly good argument on appeal. You know, you

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Speaker 1: can play this game all day long, right, You can

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Speaker 1: find cases anywhere where it was harsher, it was less harsh.

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Speaker 1: I mean, you know, each sentence is supposed to be

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Speaker 1: individual to the defendant, to the defendants particular crime. That's

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Speaker 1: how the system is set up. And so I don't

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Speaker 1: think it's an issue one appeal in terms of that

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Speaker 1: this sentence was too harsh because you're pointing to anybody

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Speaker 1: else's specific sentence. And you know, remember another thing that

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Speaker 1: the judge will consider is the sentence remorse. And I

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Speaker 1: don't know how remorseful these other defendants were in the

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Speaker 1: cases that Harvey Weinstein's lawyer was talking about. But Harvey

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Speaker 1: Weinstein spoke today and he was not remorseful. In fact,

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Speaker 1: he declared himself totally confused about what's going on here.

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Speaker 1: And so you know, here's a person who has this

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Speaker 1: four decade history of abuse, was convicted of very serious crimes,

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Speaker 1: was charged with, although not convicted of even more serious crimes.

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Speaker 1: But the judge, I think, credited that testimony and there's

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Speaker 1: no remorse, so you know, I think the judge probably

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Speaker 1: took that into account as well. I was surprised that

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Speaker 1: Weinstein made a statement to the court when he wasn't

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Speaker 1: going to show remorse and also when he's facing trial

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Speaker 1: in California. Yeah, you know, defendants usually do make a

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Speaker 1: statement at sentencing. Usually their lawyers write it for them

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Speaker 1: so that they don't just add lib and start saying

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Speaker 1: things that will hurt them, which appeared to happen to V.

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Speaker 1: Weinstein today. He did not and would not have talked

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Speaker 1: about the California charges, so you know, he wouldn't need

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Speaker 1: to worry about that hurting him there. But I am

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Speaker 1: surprised that he didn't at least express some remorse or

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Speaker 1: understanding of the women who were involved in this case.

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Speaker 1: He didn't need to go beyond the people, you know,

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Speaker 1: who were involved in this particular case in New York.

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Speaker 1: But his frankly clueless statement today I think hurt him

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Speaker 1: more than if he just said nothing at all. So

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Speaker 1: I think it was a mistake. One of the grounds

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Speaker 1: for appeal, according to the defense attorneys, is that the

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Speaker 1: judge allowed witnesses on prior bad acts cal Molino witnesses

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Speaker 1: in New York, and then allowed other witnesses to testify

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Speaker 1: to share up their credibility to corroborate what they said.

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Speaker 1: Is that a good appalet argument? Well, the first argument

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Speaker 1: about the witnesses on uncharged acts. Is this is a

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Speaker 1: solid of a pellet argument, I don't. I don't know

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Speaker 1: that it will win, but it's a it's a legitimate

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Speaker 1: argument in the sense that it's not a settled that

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Speaker 1: letting those kinds of witnesses in is okay because they

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Speaker 1: are so prejudicial, you know, um. And the question is

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Speaker 1: are they unfairly prejudicial? Um. So they'll have to sort

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Speaker 1: that out on appeal. I think it's a reasonable question

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Speaker 1: is to whether they will win that or not. In

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Speaker 1: other words, it's not a slam dunk that that that

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Speaker 1: will be upheld. We'll have to see, um. But letting

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Speaker 1: other witnesses testify to shore up their testimony is perfectly

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Speaker 1: okay if their credibility is attacked. And so that's kind

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Speaker 1: of the the preface you're looking for. If if a

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Speaker 1: witness testifies and her credibility is attacked and it suggested

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Speaker 1: that she's making this up, then you're allowed to bring

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Speaker 1: other witnesses and who say, no, you know, she she

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Speaker 1: said the same thing at the time to me, and

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Speaker 1: so on. So that's a very well established rule of evidence.

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Speaker 1: So so that is not likely to be a legitimate

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Speaker 1: argue on appeal. If if that's how that plans out. Finally,

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Speaker 1: what does this trial, conviction and sentence, What kind of

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Speaker 1: message does it send out about the me too movement? Well?

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Speaker 1: I think, you know, you can see the victim is

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Speaker 1: not just of Harvey Weinstein, but all of the women

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Speaker 1: who have kind of come forward in this wave of

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Speaker 1: me too in the last few years celebrating today's sentence,

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Speaker 1: because I think it says to them that they're being

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Speaker 1: taken seriously now that that people understand that this sort

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Speaker 1: of thing happens, that women are not making it up,

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Speaker 1: that they're not exaggerating, that this was going on and

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Speaker 1: it's very harmful to them, and that the criminal justice

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Speaker 1: system finally is listening to them and taking them seriously.

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Speaker 1: And so, you know, I think they rightly feel like

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Speaker 1: they're being heard, and that's a good thing. Thanks Jennifer.

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Speaker 1: That's former federal prosecutor Jennifer Rogers, a lecture of Columbia

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Speaker 1: Law School. Even with credit for good behavior, Wine Steam

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Speaker 1: will have to serve almost twin years of his sentence

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Speaker 1: and would be close to ninety on his release. Thanks

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Speaker 1: for listening to the Bloomberg Law podcast. You can subscribe

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Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

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Speaker 1: on bloomberg dot com slash podcast. I'm June Brosso. This

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Speaker 1: is Bloomberg