WEBVTT - Weinstein Sentence Draws Gasps in Courtroom

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<v Speaker 1>This is Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>Harvey Weinstein was sentenced to twenty three years in prison

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<v Speaker 1>for raping one woman and sexually assaulting another after decades

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<v Speaker 1>of using his immense power in Hollywood to target aspiring

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<v Speaker 1>actresses and sparking the Me Too movement. It's a virtual

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<v Speaker 1>life sentence for the sixty seven year old who was

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

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<v Speaker 1>the sentence up scene. I am um overcome with anger

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<v Speaker 1>at that number. I think that number is a cowardly

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<v Speaker 1>number to give. I think the judge caved, just as

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<v Speaker 1>I believe the jury caved. Joining me as former federal

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<v Speaker 1>prosecutor Jennifer Rogers a lecture at Columbia Law School. This

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<v Speaker 1>sentence was short of the maximum, but there were audible

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<v Speaker 1>gasps in the courtroom when the judge announced the sentence.

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

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<v Speaker 1>terms of the range that was available to the judges.

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<v Speaker 1>Just two years short of the max, and the minimum

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

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<v Speaker 1>years old. So when you think about it that way,

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<v Speaker 1>and also when you think about it compared to kind

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<v Speaker 1>of the average sentence for the two crimes of conviction,

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<v Speaker 1>you know, the two counts he actually was convicted of.

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<v Speaker 1>It's very high in that respect too, So in those ways,

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<v Speaker 1>it definitely was a sentence on the very high end.

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

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<v Speaker 1>it wasn't a first offense. So was he basing his

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<v Speaker 1>sentence on the allegations of other women, allegations that were

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<v Speaker 1>not proven at trial since the jury acquitted him of

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<v Speaker 1>the most serious charges against him. Was Weinstein being sentenced

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<v Speaker 1>as the emblem of the me too movement? I don't

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<v Speaker 1>think so. You know, judges are allowed to take into

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<v Speaker 1>account conduct that was not proved even at trial, and

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<v Speaker 1>the prosecutors did make an aggressive pitch for the judge

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<v Speaker 1>to do that, listing, you know, thirtysome episodes spanning forty

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<v Speaker 1>years that Harvey Weinstein had done according to their investigation.

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<v Speaker 1>But the judge did say during the sentencing, in response

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<v Speaker 1>to the defense lawyer's plea that he not consider those

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<v Speaker 1>uncharged allegations, he said something to the effect of, I'm

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<v Speaker 1>reading the letter through the same prism you are, so

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<v Speaker 1>that suggests to me that he didn't actually put undue

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<v Speaker 1>emphasis on the matters in the letter that were uncharged.

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<v Speaker 1>But remember, six women testified at trial. The judge sat

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<v Speaker 1>through the entire trial, and the sentence suggests to me

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<v Speaker 1>that while the defendant was not convicted of those top counts,

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<v Speaker 1>the judge was convinced by the testimony at trial, and

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<v Speaker 1>so to me, it said he didn't make that decision

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<v Speaker 1>based on, you know, Harvey Weinstein being sort of a

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<v Speaker 1>symbol that should be punished, or even based on the

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<v Speaker 1>uncharged allegations of the prosecutor's letter, but rather on the

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<v Speaker 1>evidence that he saw at trial from the six women

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<v Speaker 1>who testified there, and that caused him to go much

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<v Speaker 1>higher in the sentencing range than he otherwise might have.

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<v Speaker 1>Arthur Idalla, one of Weinstein's lawyers, said the sentence was

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<v Speaker 1>three times as long as the one the same judge

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<v Speaker 1>had given a man convicted of first degree rape and

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<v Speaker 1>the drugging of a female employee. Will that make a

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<v Speaker 1>good appellate court challenge the length of the sentence, It's

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<v Speaker 1>not a particularly good argument on appeal. You know, you

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<v Speaker 1>can play this game all day long, right, You can

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<v Speaker 1>find cases anywhere where it was harsher, it was less harsh.

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<v Speaker 1>I mean, you know, each sentence is supposed to be

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<v Speaker 1>individual to the defendant, to the defendants particular crime. That's

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<v Speaker 1>how the system is set up. And so I don't

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<v Speaker 1>think it's an issue one appeal in terms of that

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<v Speaker 1>this sentence was too harsh because you're pointing to anybody

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

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<v Speaker 1>the judge will consider is the sentence remorse. And I

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<v Speaker 1>don't know how remorseful these other defendants were in the

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<v Speaker 1>cases that Harvey Weinstein's lawyer was talking about. But Harvey

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<v Speaker 1>Weinstein spoke today and he was not remorseful. In fact,

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<v Speaker 1>he declared himself totally confused about what's going on here.

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<v Speaker 1>And so you know, here's a person who has this

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<v Speaker 1>four decade history of abuse, was convicted of very serious crimes,

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<v Speaker 1>was charged with, although not convicted of even more serious crimes.

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<v Speaker 1>But the judge, I think, credited that testimony and there's

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<v Speaker 1>no remorse, so you know, I think the judge probably

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<v Speaker 1>took that into account as well. I was surprised that

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<v Speaker 1>Weinstein made a statement to the court when he wasn't

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<v Speaker 1>going to show remorse and also when he's facing trial

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<v Speaker 1>in California. Yeah, you know, defendants usually do make a

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<v Speaker 1>statement at sentencing. Usually their lawyers write it for them

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<v Speaker 1>so that they don't just add lib and start saying

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<v Speaker 1>things that will hurt them, which appeared to happen to V.

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<v Speaker 1>Weinstein today. He did not and would not have talked

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<v Speaker 1>about the California charges, so you know, he wouldn't need

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<v Speaker 1>to worry about that hurting him there. But I am

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<v Speaker 1>surprised that he didn't at least express some remorse or

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<v Speaker 1>understanding of the women who were involved in this case.

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<v Speaker 1>He didn't need to go beyond the people, you know,

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<v Speaker 1>who were involved in this particular case in New York.

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<v Speaker 1>But his frankly clueless statement today I think hurt him

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<v Speaker 1>more than if he just said nothing at all. So

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<v Speaker 1>I think it was a mistake. One of the grounds

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<v Speaker 1>for appeal, according to the defense attorneys, is that the

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<v Speaker 1>judge allowed witnesses on prior bad acts cal Molino witnesses

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<v Speaker 1>in New York, and then allowed other witnesses to testify

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<v Speaker 1>to share up their credibility to corroborate what they said.

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<v Speaker 1>Is that a good appalet argument? Well, the first argument

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<v Speaker 1>about the witnesses on uncharged acts. Is this is a

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<v Speaker 1>solid of a pellet argument, I don't. I don't know

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<v Speaker 1>that it will win, but it's a it's a legitimate

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<v Speaker 1>argument in the sense that it's not a settled that

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<v Speaker 1>letting those kinds of witnesses in is okay because they

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<v Speaker 1>are so prejudicial, you know, um. And the question is

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<v Speaker 1>are they unfairly prejudicial? Um. So they'll have to sort

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<v Speaker 1>that out on appeal. I think it's a reasonable question

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<v Speaker 1>is to whether they will win that or not. In

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<v Speaker 1>other words, it's not a slam dunk that that that

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

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<v Speaker 1>other witnesses testify to shore up their testimony is perfectly

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<v Speaker 1>okay if their credibility is attacked. And so that's kind

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<v Speaker 1>of the the preface you're looking for. If if a

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<v Speaker 1>witness testifies and her credibility is attacked and it suggested

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

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<v Speaker 1>other witnesses and who say, no, you know, she she

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<v Speaker 1>said the same thing at the time to me, and

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

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<v Speaker 1>So so that is not likely to be a legitimate

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

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<v Speaker 1>what does this trial, conviction and sentence, What kind of

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<v Speaker 1>message does it send out about the me too movement? Well?

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<v Speaker 1>I think, you know, you can see the victim is

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<v Speaker 1>not just of Harvey Weinstein, but all of the women

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<v Speaker 1>who have kind of come forward in this wave of

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<v Speaker 1>me too in the last few years celebrating today's sentence,

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<v Speaker 1>because I think it says to them that they're being

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<v Speaker 1>taken seriously now that that people understand that this sort

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<v Speaker 1>of thing happens, that women are not making it up,

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<v Speaker 1>that they're not exaggerating, that this was going on and

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<v Speaker 1>it's very harmful to them, and that the criminal justice

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<v Speaker 1>system finally is listening to them and taking them seriously.

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<v Speaker 1>And so, you know, I think they rightly feel like

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

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<v Speaker 1>That's former federal prosecutor Jennifer Rogers, a lecture of Columbia

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<v Speaker 1>Law School. Even with credit for good behavior, Wine Steam

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<v Speaker 1>will have to serve almost twin years of his sentence

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<v Speaker 1>and would be close to ninety on his release. Thanks

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<v Speaker 1>for listening to the Bloomberg Law podcast. You can subscribe

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<v Speaker 1>and listen to the show on Apple Podcasts, SoundCloud, and

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<v Speaker 1>on bloomberg dot com slash podcast. I'm June Brosso. This

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<v Speaker 1>is Bloomberg