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A Harvey Weinstein rape trial would be grueling for both sides, experts say

Chris Pizzello/Invision/Associated Press/file 2017

NBC News reported Tuesday that Manhattan prosecutors are preparing to present evidence to a grand jury alleging that Harvey Weinstein raped actress Paz de la Huerta on two separate occasions in 2010.

By Globe Staff 

The Manhattan district attorney should have little trouble securing a rape indictment against disgraced Hollywood mogul Harvey Weinstein for two alleged sexual assaults that occurred in 2010, but a high-profile trial could be a bruising affair, legal specialists said Tuesday.

“I’ve indicted a lot of rape cases in my career, and [the grand jury process] can be very fast,” said Wendy Murphy, a former sex crimes prosecutor in Middlesex County in Massachusetts. “Contrary to popular belief, there’s nothing especially difficult about them. You put the victim in the room, she answers questions, it’s very simple; what happened, what happened next.”

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Murphy spoke to the Globe after NBC News reported that Manhattan prosecutors are preparing to present evidence to a grand jury alleging that Weinstein raped actress Paz de la Huerta on two separate occasions in 2010.

Weinstein was ousted from his production company amid media reports chronicling allegations of rape and sexual harassment by dozens of women, including A-list stars.

“I said, ‘He’ll never be charged with a crime,’ ” Murphy said by phone. “I really want to be wrong on this one. . . . Historically, people like Harvey Weinstein aren’t ever held accountable.”

Weinstein has denied all rape allegations through a spokeswoman, who didn’t immediately respond to inquiries seeking comment Tuesday.

An indictment is likely if the case goes to a grand jury, said Stuart P. Slotnick, a former prosecutor in New York now working in private practice.

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“There is no one overseeing the [grand jury] proceedings other than the DA,” Slotnick said. “Credibility issues don’t get sussed out because there’s no cross examination of witnesses by an advocate. When evidence is presented to a grand jury, an indictment is almost guaranteed.”

And, he said, Weinstein’s team will have to contend with an avalanche of negative publicity at trial.

“One of the obvious issues with Harvey Weinstein is that he’s already been convicted in the press,” Slotnick said. “Harvey Weinstein has been at the top of the news for quite some time, and in order to get a fair and impartial jury, you need citizens who haven’t prejudged the case.”

He said a pool of hundreds of potential jurors could be brought in during the selection process, and the trial jury will hear a relentless mantra from Weinstein’s lawyers.

“There’s no question that the defense will say, ‘He’s a really unpopular person,’ ” Slotnick said. “ ‘He even acted inappropriately. He made lots of passes at lots of women. He tried to abuse his position as a Hollywood bigshot to get women to have sexual relations. But rape? No sir.’ ”

Slotnick said one credibility issue the defense may highlight is the fact that de la Huerta’s allegations are “many years old” and there’s a question of “what happened between the two incidents” that occurred a couple of months apart.

But Murphy said the delay in reporting the incidents could actually bolster de la Huerta’s credibility.

“We know that most victims do delay, often substantially, before making a report,” she said, adding that defense lawyers will also look for inconsistencies in de la Huerta’s account of the alleged attacks.

“For a lot of women, it isn’t important to win so much as it is to be heard,” Murphy said. “[Weinstein] being held to account in some fashion is the antithesis of secrecy, systemic secrecy. It’s a victory just going to the grand jury.”

Frederick L. Sosinsky, a prominent New York defense attorney, said via email that he wouldn’t expect a grand jury presentation to last more than a few days.

“It is certainly quite unusual for the district attorney’s office to present evidence to a grand jury prior to arresting the suspect based on the credible complaint itself,” Sosinsky wrote. “ ... As for the difficulties of proof, the delay in reporting is obviously a problem for the prosecution but if there was a contemporaneous complaint to friends, family, agents etc this is often strong evidence.”

He said “subsequent communication between” Weinstein and de la Huerta, if there was any, “would obviously be critical as well.”


Travis Andersen can be reached at travis.andersen@globe.com
Follow him on Twitter @TAGlobe.