The disgraced film producer Harvey Weinstein may yet have a third trial at New York. An attempt between prosecutors and defense attorneys to strike a plea deal on the unresolved third-degree rape allegation brought by a sometime aspiring actress, Jessica Mann, failed on Tuesday. 

“It was an internal conference with the judge, the prosecutors and Harvey’s lawyers, and they couldn’t come to an agreement on the terms for a plea deal so far,” Mr. Weinstein’s spokeswoman, Juda Engelmayer, told the Sun on Tuesday. “It looks like we’re far apart on what we want.” 

Mr. Engelmayer was not present during the conference, he said, which was held in private between the parties and the presiding judge, Curtis Faber.

In June, after five days of intense deliberations — in Weinstein’s retrial on the matter — 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 charge. 

The jury found Weinstein guilty on one felony sex crime charge, relating to a 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 charge, relating to a 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. 

“I referred to him as Dr. Jekyll and Mr. Hyde,” Ms. Mann said on the stand earlier this year, claiming Weinstein would praise her beauty, then attack her. “The word ‘no’ specifically was like a trigger to him.” 

Mr. Engelmayer said on Tuesday that “the prosecutors are inclined to retry Harvey on Jessica Mann.” He continued: “The judge is looking for Harvey to accept the plea and waive his right to appeal and in exchange, he would set a lower sentence. I don’t know the numbers, but it didn’t seem like something Harvey was willing to accept … or what he was hoping for.”   

After the jury could not agree on Ms. Mann’s accusation, the judge declared a mistrial for the count, which means prosecutors can try the charge again in front of a different jury — for a third time. During a hearing in August, prosecutors told the judge that they are ready to re-try Ms. Mann’s charge, and that Ms. Mann herself had told them she was ready to face the courtroom yet again.

In 2020, Weinstein, now 73, faced his first trial, where he was found guilty both on the charges regarding Ms. Mann and Ms. Haley. It was a spectacular fall from grace for the once-mightly prestige film producer who had become the poster boy of the #metoo movement that was sparked by an October 2017 piece in the New York Times alleging decades of his sexual misconduct. Weinstein 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 and ordered a new trial. The court found that 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. But he was taken out of the upstate prison system and brought down to New York City’s notorious jail on Rikers Island.

Since then, the film producer has frequently been hospitalized due to serious health issues. He appeared in a wheelchair at his second trial, which took place before the summer, and was granted the request to stay at Bellevue Hospital for the duration of the trial. 

The defense had hoped that a plea deal would lower the sentence significantly. The maximum sentence for the criminal sexual act is 25 years in prison. The maximum sentence, however, for Ms. Mann’s third-degree rape count is four years, which Weinstein has already served. 

“He would plead guilty to Jessica Mann and waive his rights to appeal the Haley charge, if he would receive a lower sentence. That would be something that Harvey would be willing to accept… He’s already served six years. If they gave him, let me throw out a number, say 8 or 9 years, so he has 2 or 2 1/2 years left, he might do that. But the judge seems like he’s looking for something significantly higher than that.” Mr. Engelmayer told the Sun on Tuesday.

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.  

Mr. Engelmayer said that the defense was planning to file a motion requesting that the judge vacate the conviction on the sexual criminal act based on juror misconduct they witnessed during the deliberation. 

As the Sun reported, deliberations got heated between jurors, who were quarreling for several days; some jurors even came into the courtroom and asked the judge for help. The day of the verdict, the jury’s foreman refused to continue deliberating, because he was allegedly being threatened and pressured by other jurors to change his mind. That’s when the judge declared a mistrial on the third-degree rape charge, which is a class E felony, generally considered the least severe felony category. 

“On October 7, we are filing papers to request a hearing with the jurors in front of the judge. We have two jurors, who told us on record, and they’ve told the prosecutor this too, that they felt forced and pressured into the verdict. They were not convinced of the guilt on Miriam Haley,” Mr. Engelmayer said. “And we are going to request a new trial. And the judge is going to have to review the motions. The prosecutors will have to submit their paperwork after we submit ours, and then we’ll see what the judge will decide whether he vacates the conviction and sets a new trial date for both counts.”  

“In the meantime,” Mr. Engelmayer concluded, “we have a hearing set for October 9 for a continued conversation on what went on today.”   

Prosecutors from the district attorney’s office did not return the Sun’s request for a comment.