All Bets Are Off as Harvey Weinstein’s Sexual Assault Trial Opens Today
(Sexual assault attorney Genie Harrison comments to the New York Times about Harvey Weinstein’s sexual assault trial in the story below.)
January 6, 2020 — by Megan Twohey, Jodi Kantor and Jan Ransom for New York Times
Since the Harvey Weinstein story broke more than two years ago, everything about it has been outsize: the scope of the allegations of sexual harassment and assault, stretching back decades; the number of his accusers, who total more than 80; and the global scale of the reckoning their stories have inspired.
Now, as the Hollywood producer’s criminal trial begins Monday in Manhattan, the outcome already is anticipated as a verdict on much more than one man’s alleged wrongdoing.
Many supporters of the #MeToo movement that Mr. Weinstein’s accusers helped ignite are looking to see whether the legal system can deliver justice for victims. Lawyers for Mr. Weinstein, who lost his company, his reputation and his marriage, are arguing that the case is proof that #MeToo has gone too far. At the courthouse, media from around the world, demonstrators outside and spectators in packed galleries will be watching.
While prosecutors intend to call several female witnesses to show a pattern of misconduct, the charges rest largely on two women. Mr. Weinstein is accused of forcing oral sex on a film production assistant and raping another woman, who is still anonymous, her story not publicly known. Most of the other allegations against Mr. Weinstein dated too far back to be prosecuted, fell outside New York’s jurisdiction or involved abusive behavior that was not criminal. Other accusers were unwilling to participate, convinced the personal toll would be too great.
The prosecutors’ path to the courthouse has been difficult. They were forced to drop one accuser who had been central to the case. The lead detective was ousted over allegations of police misconduct. And Mr. Weinstein, who claims his sexual encounters were consensual, produced emails that he says show a long, intimate relationship that continued after the alleged rape.
The defense team has its own tale of troubles. Mr. Weinstein, who could face life in prison if convicted on the most serious charge, has hired, alienated and discarded a series of high-powered lawyers. He has been accused of tampering with his electronic ankle bracelet, and tested the patience of the clearly annoyed judge who will preside over the proceedings. Just weeks ago, Mr. Weinstein deviated from his lawyers’ script with a tabloid interview in which he boasted of being a pioneering advocate for women in film and complained that his work had been forgotten.
The trial, expected to stretch more than two months, will begin with the judge’s instructions at the State Supreme Court in Manhattan, followed by two weeks of jury selection. Until opening arguments begin, it will be hard to gauge either side’s strength.
“I can’t think of another case where the defendant comes into trial at a larger disadvantage in terms of perception,” said Mark A. Bederow, a New York criminal defense lawyer and former Manhattan prosecutor. But, he cautioned, “evidence in the courtroom very often is not the evidence that appears in the public realm.”
Stepping Up the Pressure
As dozens of actresses, office assistants and other women spoke out about mistreatment by Mr. Weinstein in late 2017 after The New York Times first reported about allegations against him, law enforcement officials in New York, Los Angeles and London quickly opened criminal investigations. The three jurisdictions were feeling the heat: If Mr. Weinstein had engaged in decades of alleged predation in those cities, why hadn’t the criminal justice system stopped him?
The pressure on the police and prosecutors in New York was especially intense because they had investigated the producer once before. In 2015, an Italian model told police that Mr. Weinstein had groped her breasts and tried to force his hand up her skirt during a work meeting at his Tribeca office. The police asked the woman, Ambra Battilana Gutierrez, to wear a wire during a follow-up meeting, and she recorded what sounded like an admission. But the Manhattan district attorney, Cyrus R. Vance Jr., declined to bring charges, believing that the model’s credibility would be called into question over her shifting account of an earlier alleged sexual assault in Italy.
When the Weinstein story exploded, Mr. Vance came under attack for not prosecuting him in 2015. A growing chorus of critics called for Mr. Weinstein’s arrest this time around, and fast. Police investigators interviewed more than 70 witnesses over 10 months, traveling to cities across the United States and to others including Montreal, London and Paris, according to a law enforcement official familiar with the inquiry.
But many of the alleged incidents took place outside New York. Police detectives and prosecutors investigated at least 14 alleged assaults that took place in the city, but most were beyond the state’s statute of limitations for prosecuting sex crimes, according to the law enforcement official.
Other women had stories that seemed to meet the criteria, but were not willing to face the scrutiny of a criminal trial. One aspiring actress, for example, told investigators an account of Mr. Weinstein sexually abusing her in New York, but she decided to file a lawsuit against him instead, which allowed her to remain anonymous.
The actress recently signed on to a tentative $25 million settlement of lawsuits involving dozens of Mr. Weinstein’s other alleged victims of sexual harassment and misconduct, a deal that would not require him to admit wrongdoing or pay anything to the women himself.
For months, the police considered the most promising victim in the criminal case to be Lucia Evans, who had gone on the record in The New Yorker with an allegation of sexual assault against Mr. Weinstein. She said that the producer had forced her to perform oral sex on him when she showed up for a 2004 work meeting at his office as a young aspiring actress.
“You’re the only one who can put him in jail,” Ms. Evans, in an interview, recalled the detectives telling her.
She eventually agreed to cooperate, but the investigation faced other challenges, with the police and prosecutors often at odds with each other. Others stepped up the pressure to charge Mr. Weinstein. Carrie Goldberg, a lawyer representing Ms. Evans, and #MeToo activists complained publicly that Mr. Vance’s office was allowing Mr. Weinstein to evade punishment.
In March 2018, Gov. Andrew Cuomo of New York instructed Eric Schneiderman, then the attorney general, to review how Manhattan prosecutors had handled sex crimes complaints, specifically the one against Mr. Weinstein in 2015.
Two months later, prosecutors charged Mr. Weinstein with forcing oral sex on a film production assistant, Mimi Haleyi, in 2006, and with predatory sexual assault, which essentially means committing serious sex crimes against more than one person. The predatory sexual assault charge is especially significant because it exposes Mr. Weinstein to a potential life sentence. To further support that charge, the actress Annabella Sciorra is expected to testify that Mr. Weinstein raped her in Manhattan in 1993.
But cracks appeared in the case.
In October 2018, the charge based on Ms. Evans collapsed when contradictory accounts and alleged police misconduct came to light. Ms. Illuzzi said the lead detective on the case, Nicholas DiGaudio, had failed to inform prosecutors that a friend of the young woman claimed that Ms. Evans had agreed to perform oral sex on Mr. Weinstein after he promised her acting jobs in return.
Ms. Evans insisted she had never consented, and Mr. DiGaudio denied withholding information from the prosecutors, but he was removed from the case. Since then, Sgt. Keri Thompson, who oversaw the inquiry, has come under internal investigation for allegations of misconduct unrelated to the Weinstein case.
For those reasons, prosecutors are not intending to call any police officials to testify in the criminal trial. Instead, Mr. Weinstein’s lawyers are likely to seek to subpoena Sergeant Thompson and Mr. DiGaudio, in an effort to discredit the case.
Mr. Weinstein has released warm emails that he and the alleged 2013 rape victim exchanged for years after the purported attack. In one, they discussed meeting the woman’s mother. In another, she wrote, “I love you, always do. But I hate feeling like a booty call. :).” He also produced a text message that Ms. Haleyi sent him months after her alleged attack: “Hi! Just wondering if u have any news on whether Harvey will have time to see me before he leaves? X Miriam.”
In a CBS interview, Ms. Rotunno said the #MeToo movement “allows the court of public opinion to take over the narrative” and “puts you in a position where you’re stripped of your rights.”
A Pattern of Predation
In recent months, the prosecution won a major victory: the ability to call three additional women who said Mr. Weinstein had abused them. These witnesses, whose allegations are too dated to prosecute, could help override some of the prosecution’s constraints — the small number of victims, the short arm of the statute of limitations. The women, whose names have not yet been disclosed, may bring to life for jurors the pattern of the producer’s alleged predation and its details, many of them consistent in accounts from woman to woman, year to year.
In the prosecution of Bill Cosby, such witnesses made all the difference. His first criminal trial, in which they were not allowed, ended in a mistrial in 2017. But in a second trial in 2018, additional victims testified, and Mr. Cosby is now a Pennsylvania prison inmate.
The defense’s grilling of the alleged victims is likely to create some of the most dramatic moments of the trial. Former prosecutors say that cross-examination will be long, painful for the women, and require deftness from Ms. Rotunno, whose natural forcefulness could backfire.
“If your claim is that someone is lying then you’ve got to act like they’re lying,” said Daniel C. Richman, a Columbia law professor and former prosecutor.
The defense’s greatest challenge may be Mr. Weinstein himself, even though he is not expected to testify. “Right or wrong, fairly or unfairly — who is more despised than Harvey Weinstein?” said Mr. Bederow, the defense lawyer.
Mr. Weinstein parted ways from Benjamin Brafman, who has a record of acquittals for high-profile clients; then a supposed “dream team” of defense lawyers collapsed. Mr. Weinstein was the person who insisted on obtaining the old emails with the two women at the core of the case. But he has also overdirected, undermined, second-guessed and frustrated lawyers who were trying to help him.
In an email to a Times reporter, Mr. Weinstein said he had been “studying every aspect of the case.” He broke with Mr. Brafman because of “different approaches to how to deal with the trial,” he said, adding, “I felt it was important to have a woman on the team.”
Mr. Weinstein has sometimes irritated Justice James M. Burke, who will hear his case and shape many of the critical decisions of the trial, such as whether the defense will be able to air the questions of police misconduct. A former prosecutor in the Manhattan district attorney’s office, where he worked for 12 years, Justice Burke is known as a prickly but fair-minded jurist with little tolerance for legal showboating or incompetence.
Though the judge agreed to dismiss one of the charges against Mr. Weinstein, he has ruled against the defendant and his lawyers on numerous other issues. He has snapped at Mr. Weinstein not to use his cellphone in the courtroom and told the producer, who was about to undergo back surgery for injuries from a car accident, that the trial would be held with or without him regardless of his health.
On Monday, Justice Burke will lay out the timeline for the trial, which will begin with two weeks of jury selection — no simple matter, given Mr. Weinstein’s notoriety. Two thousand summonses were issued in the hope of getting 500 potential jurors to report Tuesday to the State Supreme Court, where the judge and lawyers for both sides will begin whittling the pool down to 12 people and six alternates, said Lucian Chalfen, a court spokesman.
“Picking a jury in this case will require extraordinary candor not only by prospective jurors, but also an extraordinary amount of patience from the court to allow the attorneys to explore in a meaningful way what peoples’ values, beliefs and biases are,” said Josh Dubin, a New York lawyer who specializes in analyzing and selecting juries.
“This is exactly the type of case where jury selection is critical — the lights are shining bright here,” he said.
Alan Feuer and Ashley Southall contributed reporting.
