Justice James Burke has a reputation as a tough sentencer, especially when cases go to trial. He more than earned that reputation on Wednesday, ordering Harvey Weinstein to serve 23 years in prison for rape and sexual assault.
Weinstein’s defense lawyers were aghast, calling the sentence “obscene” and “cowardly.” In the New York legal community, many expected that he would get something in the mid-teens.
“It was an extraordinarily lengthy sentence for someone who had committed his first criminal offense,” said Paul Callan, a lawyer and legal commentator for CNN. “I’m not sure how an appellate court will react to this particular situation. I can say that in general the harsh sentence might help him to get a reversal.”
Paul DerOhannesian, a defense attorney and former sex crimes prosecutor, agreed. In an interview before the sentencing, he said a harsh penalty would make it easier for the defense to argue that the entire trial was unfair.
“The greater the sentence, the more scrutiny the underlying conviction is going to receive,” DerOhannesian said.
In handing down the ruling, Burke said he did not consider Weinstein to be a first offender.
“Although this is a first conviction, this is not a first offense,” Burke said.
The D.A.’s office filed a memo on Friday laying out 36 uncharged allegations against Weinstein, including sexual assault, harassment and workplace violence. Defense attorney Damon Cheronis urged Burke to disregard those claims, which he called “a laundry list of past allegations, many of which have not been vetted by us or the court.”
Burke said that he was not relying on those uncharged claims, telling Cheronis that he saw the allegations “through the same prism.”
From the start of the trial, Weinstein’s defense team made no secret that they believed Burke was biased against their client. On the second day of jury selection, the defense took the extraordinary step of asking Burke to recuse himself, arguing that he had made it clear that he believed Weinstein was guilty.
“He wasn’t treated fairly at all,” Cheronis told reporters after the hearing. “Not by the court, not by the jury, not by a lot of you. That’s what happened.”
The defense laid a thorough record in anticipation of an appeal, repeatedly asking for a mistrial when Burke ruled against them. Burke declined to excuse Juror #11, a novelist who has written about predatory older men. He rejected the defense’s request to call Nicholas DiGaudio, the lead detective who was removed from the case. He allowed three women to testify to Weinstein’s “prior bad acts.” He also would have allowed many more women to testify against Weinstein had he elected to testify in his own defense.
Donna Rotunno, Weinstein’s lead lawyer, said Wednesday that he would likely file an appeal in July.
Before the sentencing, attorney Michael Bachner predicted that the “over under” would be 15 years.
“I’m not shocked at all,” Bachner said afterward. “But I think it was monumentally excessive even though the behavior by Weinstein was horrible and egregious.”
Bachner said that Weinstein will have to serve six-sevenths of the term, meaning he would not be eligible for parole until he is nearly 87 years old.
The Los Angeles District Attorney’s office said Wednesday that it had begun the process of having Weinstein extradited to California to face four more charges of rape and sexual assault.