Crime

Things Just Got A Lot Worse For Harvey Weinstein

Harvey Weinstein's case just drew its judge and it's not good news for Harvey.

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(YANN COATSALIOU/AFP/Getty Images)

While it’s true that even a ham sandwich can get indicted because the burden of proof is so low, this new development spells major trouble for Harvey Weinstein.

Now the accusations against Weinstein will move from the relatively harmless arena of criminal court, where a case can linger for six months then ultimately get dismissed if the prosecutor hasn’t indicted, to the Supreme Court, New York’s highest trial court, where it will be put on a speedy trial schedule and bail could be raised.

Weinstein pulled a bad card. Cases in New York City are randomly assigned to judges and the judge who has this case, James Burke, is a tough one. He’s a former prosecutor, a guilty-until-proven- innocent kind of guy who happily will follow the prosecutor’s lead in any request they make over the course of the case.

Judge Burke heard pre-indictment motions relating to the grand jury presentation. While the hearing was closed, meaning no one but the parties were allowed in, my guess is that Weinstein’s lawyer, Ben Brafman, argued why certain evidence should not be permitted — perhaps evidence from other witnesses, not named as complainants in the case, but who also claim they were sexually assaulted by Weinstein.

My further guess is that Brafman lost whatever request he made to limit evidence. The grand jury is solely the prosecutor’s bailiwick and unless the government does something so egregious, like put on a witness known to be lying, they can pretty much do whatever they want.

Every defendant has a right to testify, but Weinstein smartly chose not to. There’s nothing to be read into this choice. No one “wins” in the grand jury unless he can prove innocence — a practically impossible task. Imagine being accused of something that happened years back and trying to prove you didn’t do it. Weinstein may be the only person to corroborate his presumed innocence — more reason not to risk being questioned by a grand jury. Remember, even though a defense attorney is allowed to accompany his client to the grand jury, the lawyer can’t say anything. Not even an objection. He sits there mute while twenty-plus people dissect every word his client utters. This, after they’ve already heard from the complainants.

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So what happens to Weinstein from here? The case will now be sent to a Supreme Court judge, most likely Judge Burke, for Supreme Court arraignment. Weinstein will plead not guilty and all sorts of motions will ensue. The People may ask for higher bail, although it seems all parties had agreed that the $1 million cash and $10 million dollar bond is enough to keep Weinstein coming back to court. The prosecution, though, could request “remand,” that means incarceration without bail.

If convicted the charges carry mandatory jail, so my bet is this will be a long, slugged out fight. First, motions will be served. Brafman will try to curtail the numbers of women allowed to testify — women who claim abuse but weren’t the subjects of the indictment. Like the Bill Cosby case, this is key. A jury might be able to challenge one woman’s credibility consistent with the presumption of innocence, but 10 — unlikely.

Cy Vance’s office has finally put its money where its mouth is. After years of avoiding prosecution against Weinstein and suffering the bad press that ensued, they’ve now secured the all-important indictment and got the case assigned to a judge who weighs heavily in their favor.

Another reason a trial is likely — the judge would have to approve any plea bargain, and it’s doubtful he’d agree to anything Weinstein would willingly take.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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