Harvey Weinstein was already effectively serving a life sentence when he was flown to Los Angeles to face his second trial on rape and sexual assault charges.
That second conviction is now the only thing keeping him in prison, after the New York Court of Appeals overturned his original verdict in a 4-3 ruling on Thursday.
The court’s ruling could now be used to bolster the appeal in California, which, if successful, could set the former Hollywood producer free.
“At the time the jury was deciding the evidence in California, they were working under the assumption and the belief that he had properly been convicted in New York,” said Jennifer Bonjean, the attorney who is handling Weinstein’s California appeal. “Now we know that’s not true.”
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The Los Angeles jury was informed of Weinstein’s earlier conviction during the trial, and it also came up during jury selection. It was also a factor in his 16-year sentence.
Bonjean is due to file her brief at California’s 2nd Appellate District on May 20. Among other arguments, she plans to make the same one that succeeded in New York, namely that the L.A. trial was prejudiced by extraneous testimony from witnesses whose allegations were not charged.
Attorney Mark Werksman, who defended Weinstein at trial in Los Angeles, said that would be a significant issue.
“In the California case, Harvey was subjected to a firehose of uncharged and unproven allegations,” he said. “We told the judge this was a problem, and now of course it is.”
Weinstein faced charges from four accusers in the L.A. case. An additional four women were called as “prior bad acts” witnesses, who testified that Weinstein had assaulted them in similar fashion to the primary accusers.
In the New York trial, three such witnesses were called. The New York Court of Appeals found that testimony tainted the case, as it distracted jurors from the conduct for which he was charged.
In Los Angeles, prosecutors initially sought to call 15 additional witnesses, including Daryl Hannah and Rose McGowan, but Judge Lisa B. Lench narrowed the list to five. One of those witnesses later backed out, leaving prosecutors with four.
At the time of Lench’s pre-trial ruling, Werksman argued that it would make any subsequent conviction vulnerable to appeal.
“This is a kamikaze run by the People,” he said at the time.
Weinstein was convicted in December 2022 on three charges pertaining to one accuser, Evgeniya Chernyshova. The jury acquitted him of one charge, and could not reach a verdict on three others. He was sentenced to 16 years in prison in California, to be served on top of his New York sentence of 23 years.
David Ring, Chernyshova’s lawyer, said he did not believe the L.A. conviction would be undermined.
“I do not think the L.A. conviction is more vulnerable today than it was yesterday,” he said. “California has a specific evidence code statute that allows other victims of sexual assault to come in and testify at trial. New York does not have that statute.”
Ring also said he did not believe that the prior conviction was a major consideration for the jury.
“That was just one very, very, very small part of it,” he said. “They decided the case on the witnesses in the Los Angeles trial.”
Regardless of the outcome of the appeal, Bonjean said she would seek to have Weinstein resentenced, given that he would now be considered a “first time” offender.
She also argued that Weinstein deserves credit on the L.A. sentence for the four years he has already been held in custody, which would reduce his remaining time to less than 12 years.
The Manhattan D.A.’s Office has already indicated that it will seek to retry Weinstein, though the timing of that trial is not yet clear.
Weinstein is expected to remain in custody in New York pending the retrial.
