Trial lawyers often say that cases are won or lost in jury selection. Weinstein’s is no exception. Yet his case is, to many, a referendum of the movement, creating an uphill battle to selecting an impartial jury.
This week, Judge James Burke will tell a group of prospective jurors to avoid watching, reading or listening to news coverage of the trial moving forward. Experts say it would be a fool’s errand, however, to seek out a jury pool that has been shielded from the pervasive reporting on Weinstein and his alleged abuse of more than 80 women.
“Everyone is going to come in having been exposed to the #MeToo movement and, presumably, some of the allegations against Weinstein,” said Deborah Tuerkheimer, a professor at Northwestern University’s School of Law and a former prosecutor.
But that, alone, does not disqualify them from service.
“What we don’t want — and what we can’t have — are jurors who have already made up their mind or who want to use the case as a vehicle to make a statement either for or against the #MeToo movement,” she said.
Although the #MeToo movement looms, Weinstein’s attorney Donna Rotunno said that the only thing that should matter is the evidence presented during the trial.
“The whole case is picking the right jury,” Rotunno said. “At the end of the day, the only people that matter are those 12 that we put in the jury box.”
She continued, “We just have to remind the jury that this case is not about movements and that movements don’t have a place inside the courtroom.”
Though there may be positives that have emerged from #MeToo, through Rotunno’s lens as a defense attorney the movement is problematic.
“The notion that you’re innocent until proven guilty gets thrown out the window,” she said, which strips people of their due process and right to a fair trial.
At the core of #MeToo is power in numbers: One allegation is often not enough to persuade people that an accuser is telling the truth, whereas several — or dozens — surmount this barrier to belief.
Twenty-five Weinstein accusers, who are not the two alleged victims in the criminal case, have called the trial “critical to show that predators everywhere will be held accountable.”
“Thanks to the courage of so many women who risked everything to come forward — this ugly facade came down and [Weinstein] finally faced a public and professional reckoning for his actions,” said a statement issued Friday by the women.
In a courtroom, there are rules of evidence, a high burden of proof and presumptions of innocence that favor the accused.
Weinstein is charged with two counts of rape, one count of criminal sexual act and two counts of predatory sexual assault, which is a felony that includes committing sex crimes against multiple people. If convicted, Weinstein, 67, faces life in prison.
Burke has agreed to permit trial testimony from actress Annabella Sciorra, who accused Weinstein of raping her at her Gramercy Park apartment in the 1990s, to help bolster the count of predatory sexual assault.
Jurors will also hear from three accusers who are not part of the criminal charges to help establish a criminal pattern.
Other accusations that might bear on everyday decisions, however, are inadmissible; of the dozens of women who have spoken up in the court of public opinion, most will not testify at trial.
Attorneys don’t select jurors during jury selection, they eliminate them. They’re restricted in that regard. The defense and prosecution can challenge an unlimited number of prospective jurors “for cause,” when there’s clear proof of bias. Each side is also allowed a limited number of “peremptory” strikes, in which they can reject a juror without, in most situations, needing to give the court a reason. The exact number is determined by the jurisdiction, nature, and severity of the charged crime. In New York, it ranges from 10 to 20.
Jury experts say that despite hundreds of studies on the matter, the most obvious juror characteristics — occupation, income, religion and age — have not been shown to correlate in any consistent way with expected verdict outcomes.
“The biggest misnomer with jury selection is that demographic factors are the trump card,” said Mark Calzaretta, founder and lead jury consultant at Magna Legal Services. Instead, he said it’s generally an experiential issue — something in their background that’s good or bad or drives decision-making.
In the Weinstein case, which lawyers expect to last two months, both sides have complied a multisection questionnaire. In addition to standard inquiries — including where each prospect lives, marital status and occupation — it devotes questions to pretrial publicity, asking those in the group about their preexisting knowledge of Weinstein, the allegations and whether they can be fair and impartial when assessing the trial evidence. Jurors will also likely be asked about the #MeToo movement and whether they have been victims of sexual misconduct, then the lawyers will be given a second opportunity to question each prospective juror individually.
The defense team also plans to look at prospective jurors’ social media pages for additional insight into prejudice and to eliminate people who may lie to serve on the case.
The Manhattan District Attorney’s Office declined to comment on the case, but has previously said that the process is sufficient to ensure biased jurors are weeded out. Some experts agree.
Rotunno first met Weinstein in May, in a Manhattan office outfitted with movie posters and photographs that catalogued his personal history and professional achievements. Weinstein sat in jeans and a T-shirt, chatty and self-deprecating, and, she said, cross-examining her process.
“I told him that unless I thought I could really be effective for him, there'd be no reason for me to do it,” she recalled.
The former Cook County prosecutor left the eight-hour meeting thinking: He didn’t force anyone to do anything.
“It was a feeling I got. I trust my instincts,” she said, confident that she was the right person for the job.
Despite a relentless onslaught of public criticism and claims she’ll be on the wrong side of history, Rotunno remains convinced that she’s the right person for the job.
“This is what criminal lawyers do,” she said.
The more that’s at stake, the stronger the constitutional protections — even in the context of #MeToo. And for Weinstein, who’s facing the possibility of life in prison, there are no higher stakes.
“Women who don’t want to bash women have no problem bashing me because what I say doesn’t fit their narrative,” she said. “I don’t think that there’s any right or wrong side. This is a historical case with huge ramifications, and I’m here ready to fight it and here ready to win.”