As Harvey Weinstein’s Criminal Trial Heads to Jury, Has the Prosecution Made Its Case?

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Harvey Weinstein trial (Jan. 27)

David Dee Delgado / Getty Images

After over a month of dramatic and emotional testimonies from six women who have come forward to accuse Harvey Weinstein of sexual assault, as well as revelations from lengthy cross-examinations and rebuttal witnesses, the jury will begin deliberating on the mogul’s fate this Tuesday.

Though the seven-man, five-woman panel heard lengthy and impassioned closing arguments from the defense and prosecution last week, legal experts are divided on whether the jury has been convinced to convict or acquit the mogul of the five felony charges against him.

“It’s really tough to predict what a jury is going to do, especially in a case like this that is going to turn entirely upon witness credibility,” Neama Rahmani, a former federal prosecutor who now runs West Coast Trial Lawyers, told TheWrap. “Even though the law says the testimony of one witness is enough to prove any fact, some jurors just have a very difficult time convicting someone beyond a reasonable doubt based on the testimony of one witness or one victim. They just can’t do it.”

A hung jury is still a very real possibility given that the panel must unanimously agree to convict or acquit Weinstein, according to lawyers who spoke with TheWrap. And if a mistrial from a hung jury does occur, that would be seen as a victory for Weinstein, they said, and send a larger, more symbolic message.

“A mistrial will communicate on a national level that we still have far to go in understanding and properly handling sexual violence against women,” Michelle Simpson Tuegel, a former criminal defense attorney who now represents victims of sexual assault, said. “It will definitely cause women who are considering coming forwarding, and those who already have, to question whether it has been worth the cost and the pain.”

Last week, the defense’s case seemed to get a boost after two witnesses raised doubts about the testimonies of two accusers: Jessica Mann and Lauren Young. Talita Maia, Mann’s former roommate, testified that Mann did not seem upset after two incidents where Mann said Weinstein had assaulted her and often spoke fondly of the mogul. Mann is one of two witnesses whose testimony forms the basis of the five felony charges against Weinstein.

Claudia Salinas — a woman whom Young said had left her alone in a bathroom with Weinstein, where she said he groped her breast and masturbated in front of her — denied ever going up to the hotel suite or closing the door behind Young. Young was one of three “prior bad acts” witnesses who testified for the prosecution to help show a pattern of predatory behavior.

“By all accounts, the defense feels like they got out of this with the wind at their back,” said Mark Geragos, a criminal defense attorney in Los Angeles.

Even if the prosecution earns a guilty verdict, the defense — since day one — has been mounting a case for an appeal that could potentially overturn any conviction. Such points of contention include the selection of one juror who is writing a book about predatory older men, as well as instances where they say the prosecution failed to hand over evidence.

Still, the number of women who have testified — combined with how each of their stories demonstrated a similar pattern of behavior by Weinstein — will be “powerful” for the prosecution’s case, Rahmani said. “If they are able to get a guilty conviction, it’s just because of that strength in numbers,” he said.

It’s unclear how effectively Weinstein lead attorney Donna Rotunno and assistant district attorney Joan Illuzzi were in convincing the jury of their arguments — and how those jurors might use those same arguments inside the deliberation room.

“[Summations are] your chance to talk directly to the people — the jury — to give voice to them, to give them arguments to use when they go into deliberation, to give to them what they need in order to convince the other jurors to go along with you,” Geragos said.

The ex-mogul faces five felony charges for predatory sexual assault, first- and third-degree rape, and a forcible sexual act. He has pleaded not guilty and denied accusations of nonconsensual sex.