UPDATED, 2:45 p.m.: As promised, prosecutors have amended the disputed count and refiled the indictment. The amendment adds language stating that the count had been charged in April 2020, which was still within the statute of limitations.
Harvey Weinstein won a partial victory in court in Los Angeles on Thursday, persuading a judge to dismiss one of the 11 sexual assault charges against him.
Judge Lisa B. Lench agreed to throw out the charge on statute of limitations grounds, but allowed prosecutors the opportunity to amend the indictment and refile it.
Outside court, Weinstein’s attorneys cheered the ruling as a significant win, noting that one of the five accusers has been dismissed from the case.
“Count 5 is dead,” defense attorney Mark Werksman declared. “We’re off to a good start.”
Weinstein was wheeled into court, wearing a surgical mask and a brown jail jumpsuit. He did not speak during the hearing, except when he agreed to the next court date, on Sept. 13.
Deputy District Attorney Paul Thompson told the court that prosecutors would amend the indictment and refile it later on Thursday. Weinstein would then have to be arraigned again, after pleading not guilty on the original indictment last week.
Lench sided with the prosecution on two other counts, which date from 2004-05. Defense attorney Alan Jackson argued that those counts should also be thrown out because of the statute of limitations. Lench disagreed.
The count that was dismissed pertains to an incident at a Beverly Hills hotel room on May 11, 2010. Prosecutors first filed the charge of sexual battery by restraint in April 2020, just within the 10-year deadline under the statute.
The defense argued that when Weinstein was indicted on the same charge this year, that created a new case, with a new case number, and that therefore the statute had expired. Thompson argued in court that the indictment was not a new case, and that it merely superseded the original complaint.
Thompson also noted that the language pertaining to the charge in the two documents was identical.
Lench found that the indictment had to include some factual claim indicating why the statute had not expired, and that without that, the count had to be dismissed. Thompson said he would amend the indictment to include such a claim. The defense lawyers argued that there are no facts that can salvage the count.
On Thursday afternoon, prosecutors refiled the indictment with all 11 counts. The disputed count now includes language stating that Weinstein “was charged with the same charge based upon the same conduct against the same victim on the same incident date in an amended complaint filed on April 10, 2020, and that he was continuously charged with the same conduct with the same charge against the same victim until the present. Further, the Indictment supersedes and took the place of the prior complaint, which alleged Count 5 identically.”
In an email, Werksman said the defense was deciding how best to respond.
“We do not believe the prosecutor can resurrect an expired statute of limitations by sheer force of will,” he said.
Weinstein was extradited last week from New York, where he was serving a 23-year sentence on a rape and sexual assault conviction. He is being held at the Twin Towers Correctional Facility. Werksman said his client was “cautiously optimistic” about the case.