The disgraced movie producer Harvey Weinstein could face a third trial in New York for the unresolved third-degree rape allegation brought by the sometime aspiring actress Jessica Mann before the end of the year, unless the parties come to some kind of agreement.   

“We’re ready to proceed,” Assistant District Attorney Nicole Blumberg told the presiding judge, Curtis Faber, on Wednesday. “We have been in touch with Jessica Mann.” 

Weinstein himself was in the courtroom — having been wheeled in shortly before noon — wearing a blue suit and tie.

In June, after five days of intense deliberations, a jury rendered a split verdict on the three-count indictment brought by the Manhattan district attorney’s office against the Oscar-winning film producer, two felony sex crimes and one third-degree rape. 

The jury found Weinstein guilty on one felony sex crime, relating to the former production assistant Miriam Haley, who accused him of forcibly performing oral sex on her in his Manhattan apartment in 2006, and not guilty on the second sex crime, relating to the former Polish model Kaja Sokola, who also claimed the producer forced oral sex on her in a hotel room in Manhattan that same year. The third-degree rape accusation — Ms. Mann claims Weinstein raped her in 2013 — had been left undecided. 

After the jury’s foreman refused to continue deliberating, because he was allegedly being threatened and pressured by other jurors to change his mind, the judge declared a mistrial on the third-degree rape charge, which is a class E felony, generally considered the least severe felony category, and carries a maximum sentence of fours years in prison.      

On Wednesday, prosecutors assured the judge that they wanted to retry that charge, and asked for a trial date in January, arguing that several witnesses had “commitments in the fall.”   

“I don’t remember there being any witnesses for Jessica Mann,” defense attorney Arthur Aidala said, causing a brief murmur among both parties. The defense insisted that the trial take place sooner.  

“We are ready,” the defense attorney said, and raised the concern that his  client’s housing situation — he is incarcerated on Rikers Island, though he was briefly permitted to stay at Bellevue hospital during the course of the trial — is “far from an ideal place for being housed.”   

Weinstein, 73, who has frequently been hospitalized due to serious health issues, has been incarcerated since March 2020 following his conviction in his first New York trial on charges of criminal sexual act (performing unwanted oral sex on Ms. Haley) and third-degree rape (the alleged sexual assault of Ms. Mann). He was sentenced to 23 years in prison and sent “up the river,” in New York’s classic corrections parlance, to do his time. 

But in 2024, New York’s highest court, the court of appeals, overturned that conviction, finding that the trial judge wrongly admitted testimony against Weinstein based on vivid allegations from women who were not part of the case, including a “Sopranos” star, Annabella Sciorra, who testified that Weinstein barged into her apartment in the 1990s and raped her, then ruined her career after she refused his further advances.  

Despite this victory, Weinstein remained incarcerated because he had also been convicted of other sex crimes in California in 2022, where he was sentenced to 16 years in prison. 

New York prosecutors decided to bring their case again and added to the indictment a new victim, the former Polish model, Ms. Sokola, since they could no longer rely on Ms. Sciorra’s compelling testimony. The retrial, which began mid-April, lasted about two months and triggered a ruckus among jurors, who deliberated for five days and could not come to a unanimous decision on the rape accusation. 

Ms. Mann was in an on-and-off relationship with Weinstein for five years and claims that during that time he raped her twice. Only one incident, however, was charged in the indictment. 

In 2013, Ms. Mann alleges, after she refused his advances, Weinstein took her into a hotel room and raped her. Ms. Mann testified that she saw a needle in the garbage can of her hotel room’s bathroom, leading her to believe Weinstein injected himself with a drug to combat erectile dysfunction prior to the assault. 

Outside the courthouse, reporters asked Mr. Aidala if his client would consider a plea deal to lower his sentence for the sex crime conviction,  which carries a maximum sentence of 25 years in prison.      

“He doesn’t want the word rape associated with him,” Mr. Aidala said. The defense is hoping that prosecutors will drop the charge. Even if he were convicted of the charge again, Weinstein has already served the time for it, having been behind bars for the last five years. 

Weinstein, who pleaded not guilty to all charges, argued throughout all of his trials that the sexual encounters with his three accusers were “transactional” and “consensual,” and that the women were opportunists, who came to him looking for fame. 

Judge Faber told the parties he would hold off from sentencing Weinstein until the issue of the third charge has been resolved. 

“It’s the same indictment,” Mr. Aidala explained to the Sun in the hallway, and therefore the judge wants some kind of “closure” on all charges before he issues a sentence.  

The judge rejected the prosecution’s request to hold the trial in January and told the parties it would take place before the end of year. 

After the proceeding ended, attorneys from both sides met with the judge in his chamber for a while but did not disclose what was said.  

Mr. Aidala told the Sun that the discussions were ongoing. The judge scheduled the next hearing for September 30.