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March 10, 2020

Harvey Weinstein requesting (mandatory minimum) five-year prison sentence

As reported in this CNN piece, headlined "Harvey Weinstein's attorneys ask for him to receive the shortest possible prison sentence," defense attorneys have now filed their sentencing arguments a notable 7-page letter before the judge's scheduled sentencing on March 11.  Here are the basics:

Harvey Weinstein's defense attorneys are requesting a five-year prison sentence, the minimum for his first-degree criminal sexual act conviction, according to a sentencing letter provided by his spokesman.

His attorneys wrote in the letter to Judge James Burke that Weinstein's personal charitable giving, advanced age, medical issues and lack of a criminal history should lead to a lower sentence. They wrote that his life "has been destroyed" since the publication of an article in The New Yorker in October 2017 that alleged systemic abuse of women in the entertainment industry. "His wife divorced him, he was fired from The Weinstein Company, and in short, he lost everything," the attorneys wrote.

Weinstein, 67, was convicted of first-degree criminal sexual act and third-degree rape in a New York courtroom in late February based on accusations by Miriam Haley and Jessica Mann. He was acquitted of two more serious charges of predatory sexual assault, which could have come with a life sentence.

The movie producer faces a minimum of five years and a maximum of 25 years in prison for the criminal sexual act charge, and he faces up to 4 years in prison for the rape charge. His sentencing is scheduled for Wednesday.

The Manhattan District Attorney's office argued in an 11-page court filing last week that Weinstein should receive a sentence that "reflects the seriousness of defendant's offenses." He led a "lifetime of abuse towards others, sexual and otherwise," prosecutors argued, and they highlighted three dozen uncharged incidents and accusations. "Starting in the 1970s, he has trapped women into his exclusive control and assaulted or attempted to assault them," prosecutor Joan Illuzzi-Orbon wrote in a letter. Noting that sentencing isn't limited "to the evidence at trial," Illuzzi-Orbon wrote that Burke has "wide discretion" to consider everything known about the defendant when the judge imposes his sentence on the disgraced movie mogul.

However, Weinstein's attorneys argued that the prosecution's request to consider 36 alleged bad acts in sentencing is "inappropriate," adding they intend to expound upon these issues at sentencing....

In the letter, Weinstein's attorneys said his medical issues mean any sentence above five years would effectively be a life sentence. "Given his age and specific medical risk factors, any additional term of imprisonment above the mandatory minimum — although the grave reality is that Mr. Weinstein may not even outlive that term — is likely to constitute a de facto life sentence."...

The attorneys said the trial "did not fairly portray who he is as a person," saying "his life story, his accomplishments, and struggles are simply remarkable and should not be disregarded in total because of the jury's verdict." Besides noting his commercial success and contributions to the entertainment industry, the attorneys highlighted Weinstein's philanthropic endeavors, including that he was an organizer for a 9/11 benefit concert that raised $100 million. The attorneys wrote that Weinstein "always remained involved in the forefront of various social justice causes" during his career.

The defense cited that he has no criminal history and wrote that in providing this information "do not in any way intend to denigrate the seriousness of the conduct for which he was found guilty," adding his background "should be given substantial consideration in reaching a just and appropriate sentence."

The full defense letter is available here, and sentencing fans may be especially interested in the last couple of pages in which the defense makes the case against consideration of uncharged conduct at sentencing. Here are excepts from this portion of the letter:

The People now ask this court to rely on more uncharged conduct in fashioning what they surely hope will be a draconian sentence.  To that end, by and large, the People ask that your honor consider 36 alleged bad acts in arriving at an appropriate sentence.  We submit that this request is inappropriate and intend on expounding upon these issues at sentencing.

First, these allegations have not been admitted, proven, or subject to adversarial testing in any meaningful manner and for the most part mirror allegations made by the People in other filings.  Reliance upon the People’s proffer would be improper.

Second, even under the federal standard, which does not apply, the People neglect to mention that under 18 U.S.C. § 3553(a) (the “3553(a) factors”), or at least the ones it tendentially cites, federal courts are not permitted by Due Process to consider whatever unsupported conjecture the People ask it to.  Rather, in order for “relevant, uncharged conduct” must be proven by a “preponderance of the evidence” standard” before a sentencing court can give it any weight or effect.  See United States v. Cordoba-Murgas, 233 F.3d 704, 708 (2d Cir. 2000)...

Third, the alleged bad acts cited by the People do not constitute “relevant conduct,” and thus, even in federal court, and even if proven, would not be proper for consideration at sentencing....

Fourth, in the course of the People’s efforts to bootstrap these allegations to its sentencing request, it is unclear if it has met requirements under both C.P.L. § 245.20(1)(k) and Brady v. Maryland, 373 U.S. 83 (1963)Brady applies equally to material relevant to both guilt itself as well as punishment....

Finally, as the court observed, all of the People’s evidence was vigorously contested at trial.  To add weight to a sentence based upon mere allegations, some of which predate even Ms. Sciorra’s rejected claims, would violate Due Process.

Based on the foregoing, Mr. Weinstein, through counsel, requests the Court expressly disregard the People’s request to use these alleged other bad acts as a basis for it sentencing determination as set forth in its March 6, 2020 letter.

Prior related post:

March 10, 2020 at 11:47 AM | Permalink

Comments

I believe 5 years is really enough, although he committed horrible crimes. He should get 5 years with Parole included. He should also be required to attend Sex Offender counseling while in prison. Remember after prison, he will have to register for life as a convicted sex offender.

Posted by: Just my Opinion | Mar 10, 2020 12:53:55 PM

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