Weinstein Sentence Draws Gasps in Courtroom

at that number. I think that number is a cowardly number to give. I think the judge caved, just as I believe the jury caved. Joining me as former federal prosecutor Jennifer Rogers a lecture at Columbia Law School. This sentence was short of the maximum, but there were audible gasps in the courtroom when the judge announced the sentence. How harsh was this sentence? Well, it's very high in terms of the range that was available to the judges. Just two years short of the max, and the minimum

was five years. And he's, you know, almost sixty eight years old. So when you think about it that way, and also when you think about it compared to kind of the average sentence for the two crimes of conviction, you know, the two counts he actually was convicted of. It's very high in that respect too, So in those ways, it definitely was a sentence on the very high end. Judge James Burke said that although this was Weinstein's first conviction,

it wasn't a first offense. So was he basing his sentence on the allegations of other women, allegations that were not proven at trial since the jury acquitted him of the most serious charges against him. Was Weinstein being sentenced as the emblem of the me too movement? I don't

think so. You know, judges are allowed to take into account conduct that was not proved even at trial, and the prosecutors did make an aggressive pitch for the judge to do that, listing, you know, thirtysome episodes spanning forty years that Harvey Weinstein had done according to their investigation.

But the judge did say during the sentencing, in response to the defense lawyer's plea that he not consider those uncharged allegations, he said something to the effect of, I'm reading the letter through the same prism you are, so that suggests to me that he didn't actually put undue emphasis on the matters in the letter that were uncharged.

But remember, six women testified at trial. The judge sat through the entire trial, and the sentence suggests to me that while the defendant was not convicted of those top counts, the judge was convinced by the testimony at trial, and so to me, it said he didn't make that decision based on, you know, Harvey Weinstein being sort of a symbol that should be punished, or even based on the uncharged allegations of the prosecutor's letter, but rather on the

evidence that he saw at trial from the six women who testified there, and that caused him to go much higher in the sentencing range than he otherwise might have. Arthur Idalla, one of Weinstein's lawyers, said the sentence was three times as long as the one the same judge had given a man convicted of first degree rape and the drugging of a female employee. Will that make a good appellate court challenge the length of the sentence, It's

not a particularly good argument on appeal. You know, you can play this game all day long, right, You can find cases anywhere where it was harsher, it was less harsh. I mean, you know, each sentence is supposed to be individual to the defendant, to the defendants particular crime. That's how the system is set up. And so I don't think it's an issue one appeal in terms of that this sentence was too harsh because you're pointing to anybody

else's specific sentence. And you know, remember another thing that the judge will consider is the sentence remorse. And I don't know how remorseful these other defendants were in the cases that Harvey Weinstein's lawyer was talking about. But Harvey Weinstein spoke today and he was not remorseful. In fact, he declared himself totally confused about what's going on here.

And so you know, here's a person who has this four decade history of abuse, was convicted of very serious crimes, was charged with, although not convicted of even more serious crimes. But the judge, I think, credited that testimony and there's no remorse, so you know, I think the judge probably took that into account as well. I was surprised that Weinstein made a statement to the court when he wasn't going to show remorse and also when he's facing trial

in California. Yeah, you know, defendants usually do make a statement at sentencing. Usually their lawyers write it for them so that they don't just add lib and start saying things that will hurt them, which appeared to happen to V. Weinstein today. He did not and would not have talked about the California charges, so you know, he wouldn't need

to worry about that hurting him there. But I am surprised that he didn't at least express some remorse or understanding of the women who were involved in this case. He didn't need to go beyond the people, you know, who were involved in this particular case in New York. But his frankly clueless statement today I think hurt him more than if he just said nothing at all. So

I think it was a mistake. One of the grounds for appeal, according to the defense attorneys, is that the judge allowed witnesses on prior bad acts cal Molino witnesses in New York, and then allowed other witnesses to testify to share up their credibility to corroborate what they said. Is that a good appalet argument? Well, the first argument about the witnesses on uncharged acts. Is this is a

solid of a pellet argument, I don't. I don't know that it will win, but it's a it's a legitimate argument in the sense that it's not a settled that letting those kinds of witnesses in is okay because they are so prejudicial, you know, um. And the question is are they unfairly prejudicial? Um. So they'll have to sort that out on appeal. I think it's a reasonable question is to whether they will win that or not. In other words, it's not a slam dunk that that that

will be upheld. We'll have to see, um. But letting other witnesses testify to shore up their testimony is perfectly okay if their credibility is attacked. And so that's kind of the the preface you're looking for. If if a witness testifies and her credibility is attacked and it suggested that she's making this up, then you're allowed to bring other witnesses and who say, no, you know, she she said the same thing at the time to me, and so on. So that's a very well established rule of evidence.

So so that is not likely to be a legitimate argue on appeal. If if that's how that plans out. Finally, what does this trial, conviction and sentence, What kind of message does it send out about the me too movement? Well?

I think, you know, you can see the victim is not just of Harvey Weinstein, but all of the women who have kind of come forward in this wave of me too in the last few years celebrating today's sentence, because I think it says to them that they're being taken seriously now that that people understand that this sort of thing happens, that women are not making it up, that they're not exaggerating, that this was going on and it's very harmful to them, and that the criminal justice

system finally is listening to them and taking them seriously. And so, you know, I think they rightly feel like they're being heard, and that's a good thing. Thanks Jennifer. That's former federal prosecutor Jennifer Rogers, a lecture of Columbia Law School. Even with credit for good behavior, Wine Steam will have to serve almost twin years of his sentence and would be close to ninety on his release. Thanks

for listening to the Bloomberg Law podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg