Then, Weinstein’s lawyers proposed a solution to a potential problem.
“What nobody here wants . . . in the middle of this trial [is] for something that happens to derail the trial,” said Arthur Aidala, one of Weinstein’s attorneys. He suggested sequestering the jury — a practice no longer followed in New York courts — to keep jurors unaware of developments in any of the cases in “other jurisdictions.” Weinstein and his entourage left the courtroom about 10:45 a.m. About three hours later, the district attorney in Los Angeles announced rape and sexual assault charges against Weinstein. The story was on the front pages of three New York newspapers and The Washington Post the next morning.
On Tuesday, Justice James Burke in New York Supreme Court in Manhattan threatened to put Weinstein in jail. The former megaproducer had been out on $2 million bond and was wearing an ankle monitor.
“I would implore you to not answer the following question,” a stern-faced Burke said, addressing Weinstein directly. “Is this really the way you want to end up in jail for the rest of your life — by texting in violation of a court order?”
The angered judge had caught wind of the fact that Weinstein, while sitting in the front row waiting for his case to be called, was handling his cellphones after several prior warnings to never use them in court.
On Wednesday, Aidala filed a motion asking Burke, who will sentence Weinstein if he’s convicted, to step down from the case, arguing that the justice showed bias toward Weinstein and assumed he would be convicted. The motion was quickly denied.
“I certainly never actually meant that I was going to put your client in jail for life. . . . All I meant to do was to scare him enough to discontinue using his phone,” Burke said later.
The courtroom theater was only beginning. Here’s what the events of the first week of the trial tell us about what’s in store for the next two months.
Is it possible to pick a “fair and impartial” jury in such a high-profile case with such sensitive subjects at hand?
“I have a very close friend who had an encounter with [the] defendant in his hotel room,” one potential juror said. Other women in the jury pool in court Wednesday said they had been sexual assault victims themselves. They were part of a group of nearly 50 people, out of a pool of 120, who were excused Wednesday for outright declaring they could not be fair and impartial toward Weinstein.
On Friday, in the middle of screening a third panel of more than 100 jurors, a flash mob convened in front of the courthouse. Their chants — such as “It’s not my fault, not where I was, not how I dressed” — were audible from the 15th-floor courtroom, which had its windows open. As a result of the noisy intrusion, Weinstein’s attorney Damon Cheronis made a bid to have the whole panel excused.
“It leads the prospective jurors to think there’s a mob outside chanting for justice, which is the conviction of Harvey Weinstein,” Cheronis told the justice, adding that “it is this type of atmosphere that makes it near impossible for Mr. Weinstein to get a fair trial.” Burke denied the request, noting that it was far from the last time the final panel would hear or see protests at the courthouse.
Burke has repeatedly said that anyone selected in this case will have been asked repeatedly if he or she can be fair, relying only on the trial evidence.
“The purpose of a trial is for a jury to decide on the basis of evidence presented in a courtroom,” he told Friday’s panel.
The sides remain at odds as to whether fairness is attainable. Selection will continue through next week, and it is likely that a new set of arguments will be raised.
Weinstein stands charged with five counts, including an allegation that he raped a woman at a Doubletree Hotel in Manhattan in 2013. He’s also accused of forcing a sex act on former production assistant Mimi Haleyi in 2006 and faces two counts of predatory sexual assault — which allege a pattern of conduct involving those two alleged victims and actress Annabella Sciorra, known for her roles on “The Sopranos” and in “The Hand That Rocks the Cradle.” Defense attorneys for Weinstein have long maintained that he has never had nonconsensual sex with any of his accusers and that he would not be able to get a fair trial in New York City. They were denied motions for a change of venue, to have the case transplanted to another jurisdiction in the state. And they have said the credibility of the female accusers will prove problematic.
In August, Weinstein’s former attorney Ben Brafman described in a motion “a myriad of compelling examples of emails that [the 2013 rape accuser] sent Mr. Weinstein in the weeks and months after the alleged rape.” Brafman pointed to communications between the woman and Weinstein that were “consistent with an ongoing warm, friendly, relationship (fundamentally inconsistent with any forcible rape having occurred).”
The emails cited in court papers show attempts to see Weinstein in person. “Lets get together,” she wrote one day in July 2013, less than four months after the attack she reported several years later. “Text or call me on saturday, ill be done around 9pm i believe earliest. We can work something out from there?” she wrote in April, about one month after the alleged sexual assault. Weinstein’s current lead attorney, Donna Rotunno, is expected to employ a vigorous cross-examination of the witnesses, especially the accusers.
The defense table is stacked, with four attorneys surrounding Weinstein and another veteran lawyer, former Brooklyn judge Barry Kamins, coming in and out of the proceeding. Weinstein is also employing a jury strategist. (The state has two prosecutors at its table.) Experienced onlookers say the defense, with frequent motions in writing and verbally in the courtroom, is establishing a thorough record for the purposes of an appeal in the event of a conviction.
“The more errors that can be claimed by the defense . . . the more likely it is for the conviction to be overturned,” said Touro Law School criminal-law professor Richard Klein.
Will the Los Angeles charges have an effect on the New York case?
The jury is not expected to hear references to the California prosecution during the New York proceeding. However, one of the prosecution’s witnesses to support Weinstein’s alleged history of “prior bad acts” is the woman who says she was assaulted by him in a Beverly Hills hotel on Feb. 19, 2013. She is one of two alleged victims who are part of the Los Angeles case that was announced Monday. The parties may still argue either before or during her testimony to limit or eliminate any indication that she may be tied to a Weinstein prosecution there.
If Weinstein testifies in his own defense, the prosecution will aggressively seek to attack his credibility. It’s possible, but yet to be decided, that evidence from the Los Angeles case will be allowed on cross-examination by veteran assistant district attorney Joan Illuzzi-Orbon. He could also, with his counsel, choose not to testify. The defense may well decide it would work against him to subject him to lengthy cross-examination.
The defense will continue to have concerns that headlines generated from the new Los Angeles case will taint the New York jury pool.