Retrial of Harvey Weinstein unlikely to occur soon, if ever, experts say

Legal experts say the retrial in New York of Harvey Weinstein won't be coming to a courtroom anytime soon, if ever

The retrial in New York of Harvey Weinstein — whose moviemaking prowess once wowed Hollywood — won’t be coming to a courtroom anytime soon, if ever, legal experts said on a day when one of two women considered crucial to the case said she wasn't sure she would testify again.

A ruling Thursday by the New York Court of Appeals voided the 2020 conviction of the onetime movie powerbroker who prosecutors say forced young actors to submit to his prurient desires by dangling his ability to make or break the their careers. He remains jailed in New York state after he was also convicted in a similar case in California.

The appeals court in a 4-3 decision vacated a 23-year jail sentence and ordered a retrial of Weinstein, saying the trial judge erred by letting three women testify about allegations that were not part of the charges and by permitting questions about Weinstein’s history of “bad behavior” if he testified. He did not. He was convicted of forcibly performing oral sex on a TV and film production assistant and of third-degree rape for an attack on an aspiring actor in 2013.

Several lawyers said in interviews Friday that it would be a long road to reach a new trial for the 72-year-old ailing movie mogul and magnet for the #MeToo movement who remains behind bars, and it was doubtful that one could start before next year, if at all.

“I think there won’t be a trial in the end,” said Joshua Naftalis, a former Manhattan federal prosecutor now in private practice. “I don’t think he wants to go through another trial, and I don’t think the state wants to try him again.”

Naftalis said both sides may seek a resolution such as a plea that will eliminate the need to put his accusers through the trauma of a second trial.

Deborah Tuerkheimer, a professor at Northwestern University Pritzker School of Law and former assistant district attorney in Manhattan, said whether there is a second trial will "hinge on the preferences of the women who would have to testify again and endure the ordeal of a retrial.”

“I think ultimately this will come down to whether they feel it’s something they want to do, are able to do,” she said.

Jane Manning, director of the nonprofit Women’s Equal Justice, which provides advocacy services to sexual assault survivors, agreed “the biggest question is whether the two women are willing to testify again.”

If they are, then Manhattan District Attorney Alvin Bragg “will absolutely retry the case,” said Manning, who prosecuted sex crimes when she was in the Queens district attorney's office in the late 1990s and early 2000s.

Tama Kudman, a West Palm Beach, Florida, criminal defense lawyer who also practices in New Jersey and New York, said prosecutors will likely soon have conversations with key witnesses for a retrial.

“It's really up to them at the end of the day whether they want to go through that again,” Kudman said, noting that prosecutors will have to see if witnesses can withstand a second trial. “Being willing to and wanting to are two different things.”

The legal process is already in motion, with Weinstein scheduled to be brought to court in Manhattan on Wednesday, an appearance likely to be used in part to establish where he will be jailed while he awaits a new trial.

Bragg's office put out a statement soon after the appeals ruling was made public Thursday, saying it will “do everything in our power to retry this case.”

But lawyers say the road to a trial will include monthslong battles between lawyers over what evidence and testimony will be allowed at a retrial.

The daunting path to a new trial was clear Friday when Miriam Haley, one of two women at the heart of the charges against Weinstein, said during an electronic news conference that she “will consider testifying again, should there be another trial,” but declined to commit to a new trial when questioned further about it.

Haley, a former “Project Runway” production assistant also known as Mimi Haleyi, testified at Weinstein's trial that she repeatedly told Weinstein “no” when he attacked her inside his apartment in July 2006, forcibly performing oral sex on her. In a 2020 civil lawsuit, Haley said she was left with horror, humiliation and pain that persists.

During the news conference with her lawyer, Gloria Allred, Haley said the appeals ruling was “a terrible decision that sends an extremely disheartening message to victims of sexual assaults everywhere.”

She said testifying was “retraumatizing, exhausting and terrifying” and she could not yet decide if she would testify at a retrial while “we're all in a bit of shock” from the court ruling.

“I wish it would be as easy as ‘Sure, I’m going to do it again!'" Haley said.

She said people really don't understand.

“It’s like insane. It’s grueling. It’s hard. You're living in fear for years,” Haley said. "Then you’re getting harassed. There’s so much stuff that people don’t see that I had to live with. Yeah, like I have to take a minute to think about it.”

Allred told the news conference Friday afternoon that Bragg's office had not yet reached out to Haley about testifying again.

Erika Rosenbaum, a Canadian actor who made her own accusations against Weinstein in 2017, has spent years speaking out against harassment and abuse but has not been called to testify in either Weinstein trial.

She said in an interview Friday that it was harrowing enough to tell her own story of abuse in the media and can only imagine how much more difficult it is to go on the witness stand — let alone twice.

“Every time I speak about it, whether it’s to the press or to a group of students or young people, I get physically hot and uncomfortable. My head pounds, I have a physical, visceral reaction. It takes a physical and mental and emotional toll," Rosenbaum said.

She said she imagines it would be terrifying to testify and she wishes she could “take the stand for them or with them.”

“But these are some brave ladies, and I have a great deal of respect for them and gratitude,” Rosenbaum added.

The Associated Press does not typically identify people who say they have been victims of sexual assault unless they agree to be named as Haley and Rosenbaum have.

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Associated Press writers Jocelyn Noveck and Michael R. Sisak contributed.