Two hours after jurors in Manhattan announced on Friday that they could not agree to convict Harvey Weinstein of rape for the third time, Alvin L. Bragg, the Manhattan district attorney, did not rule out trying Mr. Weinstein again.
“We will consider our next steps,” he said in a statement.
If there is another trial, it would be the fourth time Mr. Weinstein headed to court to face the accusation by Jessica Mann, an aspiring actress, who says the Hollywood producer raped her in a New York hotel room in 2013.
While not unheard-of, it is rare for a defendant to face the same criminal charges even three times, criminal defense attorneys and former prosecutors said on Friday.
A fourth trial for the same crime is exceedingly rare, the attorneys said, and could raise questions about prosecutorial overreach and the use of public resources.
“When you can’t win in three trials, a fourth becomes tyrannical,” said Alan Jackson, a former prosecutor in Los Angeles County who successfully defended Karen Read against murder and manslaughter charges in the death of her boyfriend, a Boston police officer. “At some point it becomes abusive.”
The first case against Mr. Weinstein in New York was brought to trial in 2020 by Cyrus R. Vance Jr., Manhattan’s district attorney at the time. Mr. Weinstein was convicted of raping Ms. Mann, but the verdict was overturned. In the second trial, brought last year by Mr. Bragg, the jury convicted Mr. Weinstein of a single criminal act against another victim, but deadlocked on the count of raping Ms. Mann. A third trial was ordered by the judge overseeing the case, Justice Curtis Farber of the State Supreme Court in Manhattan.
The trial began in April. It lasted a month, including five days of testimony by Ms. Mann. After more than two days of jury deliberation, and two notes from the jurors on Friday informing the judge that they could not reach a decision, Justice Farber announced a mistrial on Friday afternoon. He said that he didn’t “see any reason to go further in deliberations. It’s not meant to be a coercive process.”
Jane Manning, a former prosecutor and advocate for rape survivors, said Mr. Bragg was right to bring the case for a third time. Ms. Mann’s case shows how sexual assault within intimate relationships can be difficult for juries, she said.
“This outcome doesn’t change the fact that a serial predator who silenced his victims for years was held accountable through the power of women speaking out together,” Ms. Manning said.
Of the 12 jurors, nine wanted to acquit Mr. Weinstein, a result that should serve as a warning to the district attorney’s office about the possibility of a fourth trial, said Paul Wallin, a criminal defense attorney in Los Angeles who has defended dozens of teachers in California against charges of sex abuse.
“There’s a reason” for such a lopsided vote, Mr. Wallin, said. “The evidence is not strong enough” to convict.
As Mr. Bragg considers whether to bring a fourth trial against Mr. Weinstein, defense lawyers and former prosecutors suggested that he would face long odds. On one hand, Mr. Weinstein’s former stature as a powerful Hollywood executive, and his prominence as the first influential man toppled by the #MeToo Movement, means that he remains an attractive target.
“Because of Harvey’s high-profile status and being the original face of the MeToo Movement, the decision making here has been altered,” said Jason Goldman, a former prosecutor in Brooklyn who is now a criminal defense attorney. “If Ms. Mann is on board again, the government will put aside concerns they may have about resources and evidentiary issues.”
Mr. Bragg praised Ms. Mann’s “perseverance and bravery” in testifying about her experiences and made clear that the decision whether to bring the case would happen after consulting with Ms. Mann.
“The prosecution now faces a difficult decision: continue to pour state resources into a charge that yielded two deadlocked juries or dismiss the charge, potentially sending a signal they are not willing to go the distance to vindicate a victim they find credible and who has endured so much,” said Cheryl Bader, a law professor at Fordham University.
Mr. Weinstein also faces problems that may affect Mr. Bragg’s calculus. He was hospitalized last September for emergency heart surgery, and a month later was diagnosed with cancer. A jury in Los Angeles found Mr. Weinstein guilty of rape and sexual assault in December 2022, and he was sentenced to 16 years on prison. Mr. Weinstein is appealing the conviction, arguing that he did not receive a fair trial.
Between Mr. Weinstein’s other cases and his declining health, “he’s likely to die in prison,” Mr. Wallin said. “Why would you waste tax dollars and put everyone thought it again?”
But in any criminal case, the first trial always favors the prosecution, Mr. Jackson said. Every trial after that favors the defense, he said, “because they’ve seen the movie, and they know which scenes do not hold up.”
Joel Cohen, a criminal defense lawyer in New York with the firm Ruskin Moscou Faltischek, said that Mr. Bragg should probably move on from trying Mr. Weinstein. “He has taken his best shot,” he said.
Yet, for Mr. Cohen, the prospect of another trial for Mr. Weinstein reminded him of Carmine Persico, a leader of the Colombo crime family who went on trial five times for the same 1959 truck hijacking. The proceedings ended in two mistrials and two overturned convictions before, finally, a guilty verdict in 1969 that sent him to prison.
Kate Christobek contributed reporting.
Christopher Maag is a reporter covering the New York City region for The Times.
The post Latest Weinstein Trial May Have Been ‘Best Shot,’ Former Prosecutors Say appeared first on New York Times.
