Following his conviction for rape in the third degree and criminal sexual act in the first degree, Harvey Weinstein will next face sentence, which potentially ranges from five years to 29 years in prison. There will be an appeal of the conviction, regardless of sentence, with substantial grounds, but that by no means assures reversal.
If the conviction is affirmed, and the sentence is either not appealed or affirmed as well, there stands a good chance that Harvey Weinstein will die in prison. And for good measure, he still has an open indictment in California, just in case. But while there’s empathy for killers, Weinstein remains the monster most hated, the embodiment of #MeToo outrage and a defendant for whom no woke tears are shed.
When it comes time for Justice James Burke to utter his fate on March 11th, what will be the basis for his sentence? The argument proffered by ADA Joan Illuzzi-Orbon is that Weinstein should not merely be sentenced for the crimes of which he’s been convicted, but for every accusation, every negative personality trait, everything the most hated man has ever done. Illuzzi asks Justice Burke to sentence Weinstein for being Weinstein.
Manhattan prosecutors on Friday urged the judge who will sentence the once-powerful film producer Harvey Weinstein to consider what they said was a four-decade history of sexual assaults against women for which he had never been charged.
In the instant case, Weinstein stands convicted of two crimes, one a Class “E” non-violent felony and the other a Class “B” violent felony. He was acquitted of three other charges. A source who attended the trial every day to watch the hanging of Harvey Weinstein told me that she left the courtroom shocked that he was convicted of anything. It wasn’t that she didn’t want him to be convicted, but that the evidence, by any objective measure, failed to prove guilt beyond a reasonable doubt. If it sufficed to convict Weinstein, then there was nothing to prevent any man from being convicted.
This is what ADA Illuzzi is counting on.
Joan Illuzzi, the lead prosecutor, said the list of assaults detailed in the memo “show a lifetime of abuse toward others, sexual and otherwise.” She urged Justice James A. Burke to impose a sentence that reflected what she said was Mr. Weinstein’s “total lack of remorse for the harm he has caused.”
Weinstein maintains his innocence. It’s normal that defendants who maintain their innocence show a “lack of remorse.”
It was, she wrote, “totally appropriate in this case to communicate to a wider audience that sexual assault, even if perpetrated upon an acquaintance or in a professional setting, is a serious offense worthy of a lengthy prison sentence.”
It’s commonplace for prosecutors to argue that a particularly harsh sentence is needed to “send a message,” and it’s invariably the argument when the case involves a high profile defendant and has captured significant media attention. In this case, however, the question is whether this is a message sent to other putative perpetrators of sexual assault to warn them not to engage in such conduct, or to a “wider audience” of women seeking vengeance on men in general, to show that the office of the New York County District Attorney is now on their team.
The filing suggested that a two-year investigation into Mr. Weinstein by the Manhattan district attorney’s office had gone far beyond the evidence presented at his trial and had delved into several accusations that did not result in charges against him.
Ms. Illuzzi wrote that the acts recounted in the sentencing memo showed that Mr. Weinstein had “displayed a staggering lack of empathy, treating others with disdain and inhumanity” throughout his professional life and that he had “consistently advanced his own sordid desires and fixations over the well being of others.”
There is no crime of displaying a “staggering lack of empathy,” perhaps the most potent buzzword of the day, But the sentencing letter didn’t stop at accusing Weinstein of being a man of toxic character. It went on the ask Justice Burke to sentence Weinstein for every accusation against him over the past 40 years.
She then itemises a stunningly long list of Weinstein’s alleged sexual misconduct, drawing on a two-year investigation out of the New York district attorney’s office. She breaks the shocking litany up into three categories: “sexual assault and harassment”, “bad acts and behavior in the work environment” and “other bad acts”.
In total, the sentencing memo chronicles 36 instances of alleged sexual abuse, bullying, harassment and threats over a span of 40 years.
Illuzzi argues that the court shouldn’t limit its sentence to the crimes of which Weinstein stands convicted, but should incorporate into his sentence punishment to vindicate the harm claimed by every woman who accused him, every person he treated poorly, every instance when he showed less empathy than someone felt they deserved.
The guilty verdict broke a glass ceiling in prosecutions of sexual assault in the US by convicting a defendant who continued to be in intimate contact with his victims, in some cases sexually. Such cases have almost never been taken all the way to trial as prosecutors have assumed that juries would acquit.
What’s called a “glass ceiling” here is what has long been called the burden of proof, the requirement that a defendant be presumed innocent until such time as a jury returns a verdict of guilty upon proof beyond a reasonable doubt. By characterizing it as a “glass ceiling,” as has long been the phrase used to explain why women have been stopped from reaching the upper echelon of business, it makes the failure of proof sound more like a sexist plot than a fundamental tenet of criminal law.
If the conviction itself calls into question whether Harvey Weinstein was convicted upon less than adequate credible evidence, the prosecution’s demand for a sufficiently harsh sentence to punish him for every accusation never charged or proven takes it to an entirely new level.
He may well have been a miserably unempathetic person, and there may well be 36 women who now join the chorus against Weinstein where they once sang his praises. But Justice Burke is charged with imposing sentence for two, and only two, crimes. Neither of them is the crime of being Harvey Weinstein.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I got fifty bucks says both Harvey and Joan have a hairy arce-hoole and in another world they would have made great lovers.
But what I really want to know is whether or not you will reward your back-page readers with a new phrase when you post about James the Judge attempting to clear his throat at sentencing.
You know it is going to happen too, but will it be like gaging on a pubic hair or more of an um-hum like one would let go of in the beer line at a spring training game?
Movies don’t make themselves, Dave. Or as Frank Purdue said, “it takes a tough man to make a tender chicken.”
I was gonna say…”it seems hes mostly guilty of being a big old…”
Hmm….I hope Frank didn’t fuck every little chickie that came down the line…
When he said he mounted birds, they thought he was a taxidermist.
–Anonymous
The prosecution of Harvey Weinstein was not a criminal prosecution; it was a moral campaign against ugly male sexual aggressiveness and the women who wrung advantage from their relationships with such men until the women had benefited as much as they could, at which point they turned against him/them. I find that virtually every player in this ugly morality play played an ignoble role, except for Weinstein’s defense lawyer. Even the media coverage was ugly and unprofessional. Indeed, this whole campaign was begun by Ronan Farrow, who now is leveraging his celebrity to further assure one-sided media coverage (note the pressure he is putting on his publisher to refuse to publish what Farrow deems evil points-of-view expressed by an author-villain, Woody Allen).
BOTTOM LINE: As Shakespeare aptly put it, a pox on both their houses.
People never seem to think ahead to something similar being weaponized against someone or some opinion that one likes, instead of one supposedly everyone loathes. Slippery slopes hiding everywhere.
Well-said, Harvey. Note that in sentencing Weinstein, the judge referred to the other accusations for which there was no trial nor any evidence presented. In other words, he was sentenced for “crimes” for which he was not convicted.
I have argued for a long time that the “preponderance of evidence” standard that the Obama administration ordered for colleges and universities to use in cases of alleged sexual assault ultimately would bleed into criminal prosecutions, and here we are. Now, I have no doubt that Weinstein was continually “on the hunt” for sex, but he hardly is alone. Just 20 years ago, many of the feminists that were calling for Weinstein’s crucifixion were defending Bill Clinton, and when he sicced the IRS on Juanita Broadderick — who presented strong evidence that Clinton had out-and-out raped her — not one feminist raised a protest.
My sense is that once Weinstein lost his usefulness to celebrities and Democrat politicians, he was expendable and they could afford to make him a symbol of evil. Now, once again, I will say that I don’t respect men who constantly are on the hunt for sex and act like predators, and Weinstein was one of those. But don’t kid yourselves; powerful women knew all about his sexual proclivities but did and said nothing (and some voluntarily slept with him because, frankly, it was good for their careers) until Weinstein no longer was useful to them. Now he gets to die in prison.