Justice James Burke prohibited defense attorney Damon Cheronis from presenting replicas of the emails in a PowerPoint presentation on a large TV screen but said he could cite from them when he addresses the panel in opening statements Wednesday.
“The evidence will show that the complaining witnesses in this case sent dozens and dozens and dozens of loving emails to Mr. Weinstein,” Cheronis said at a hearing Tuesday. “One of the complaining witnesses in this case, after she claims he sexually assaulted her, reached out to Harvey Weinstein to give him her new phone number.”
Before the opening statements, a hearing is expected to be held to find out whether Juror No. 11, a novelist, misrepresented during jury selection the nature of her book. The book relates to “predatory older men,” but she denied the subject matter, even though her website described it as such.
The defense called for a mistrial Friday on the grounds that she should be excused, but the judge put her on the panel anyway. There are just three alternate jurors, although the parties originally agreed on appointing six backup jurors.
If the author is excused, there will be only two alternates going forward, which could be a risky prospect in terms of seeing the trial through. Once deliberations begin, an alternate can replace a regular juror only if the defense consents to it.
The email-related ruling Tuesday was something of a victory for Weinstein’s team. Cheronis, out of the gate, will get to give jurors a preview of what is to come. He referred to the email exchanges as “devastating” and said the accusers not only contradict their own claims but “bragged” about their affairs with Weinstein.
“We are going to have witnesses who said he forced them to do some things, and they bragged about the things they say he forced them to do,” Cheronis said.
Once the trial begins, the emails will probably have to come into play during cross-examination of accusers. Their admissibility is not certain.
Burke said that “even if and when actual emails are shown at trial” it would probably be to “refresh [the witnesses’] recollection” about the emails’ contents and that the documents are “never likely to be formally received into evidence.”
But Cheronis and the rest of Weinstein’s five-member legal team are likely to push aggressively to expose as much of the email contents as possible. Cheronis argued the defense is “in possession of dozens and dozens of emails between Harvey Weinstein and individuals who are going to come to this courtroom and say that he sexually assaulted them.”
“The evidence in this case will show that the complaining witnesses in this case are going to come out in court years later and try to make these relationships look forced,” Cheronis argued.
Weinstein is accused of committing a criminal sexual act against former production assistant Mimi Haleyi in 2006 and of raping another woman at a Manhattan hotel in 2013. The top counts against him are predatory sexual assault, a charge for pattern sexual offenses, and also relate to an alleged attack against actress Annabella Sciorra in 1993.
His legal team, which has changed several times since his May 2018 arrest, previously said that emails with the 2013 rape accuser continued for four years after the woman now says she was assaulted. Her “extensive communications and contact immediately following the now claimed forcible rape instead reflect a consensual, intimate relationship with Mr. Weinstein in an exchange of more than 400 warm, complimentary and solicitous emails with an alleged rapist for more than four years after the alleged rape, never once in those communications claiming to have ever been harmed by Mr. Weinstein,” a past defense filing says.
“Let’s get together,” she wrote to Weinstein in July 2013. The alleged offense was in March of that year.
In August 2013, she told him that she “got a new number. Just wanted you to have it. Hope you are well and call me anytime, always good to hear your voice.”