Harvey Weinstein

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Harvey Weinstein arrives for his first day in court

US legal experts say Harvey Weinstein suffered a serious body blow at the onset of his rape trial in New York this week as the Los Angeles district attorney unveiled a set of separate criminal charges. However few doubt the former Hollywood mogul will fight to the bitter end in his bid to remain a free man.

Weinstein faces life imprisonment should he be convicted in the current trial where he is charged with five counts of rape and predatory sexual assault against two women. He faces up to 28 years in jail if he is eventually tried and found guilty of the Los Angeles charges of forcible rape, forcible oral copulation, sexual penetration by use of force and sexual battery by restraint stemming from two separate incidents.

Both the prosecution, led by Manhattan Assistant District Attorney Joan Illuzzi-Orbon, and the defence team will present narratives designed to swing the jury’s opinion. However before the trial can proceed to the opening statements, there is the business of empanelling the jury at the New York State Supreme Court, which itself is forecast to last two weeks, heading into the eight-week trial proper.

The process, argues criminal defence attorney Mark Haushalter of Los Angeles-based Okabe & Haushalter, has been impacted by the Los Angeles charges. “It is the perfect storm for the prosecutor and the worst storm for the defense because it is… tainting the potential jury pool. Right now they’re on jury selection in New York, which is an extremely challenging stage of any trial because you’re trying to get an impartial jury of your peers. That’s a legal fiction because it’s going to be hard to get someone who’s impartial and doesn’t have any bias towards Harvey Weinstein… They’re running into real problems with how many jurors are getting excused and dismissed.”

High stakes game of chess

Selecting the jury is a high-stakes game of chess as both sides challenge the other’s selections and jockey for position to find the 12 male and female “peers” of the film industry bête noir still worth many millions of dollars who has faced sexual assault allegations from more than 80 women. It’s been said around 2,000 people have been summoned to be vetted for the jury – roughly five times the number on a “normal” trial. As of Wednesday, Reuters had reported that out of 120 potential jurors interviewed, 90 had been dismissed because they said they wouldn’t be able to remain impartial in the trial.

Weinstein is a notorious figure. He co-founded Miramax Films with his brother Bob Weinstein, produced Shakespeare In Love, and barrelled over Hollywood with his relentless determination and extraordinary ability to campaign for and win Oscars,much in the same way he ran every other aspect of his film and TV operations. The case has already become a media circus, and critics ask how any juror could sit inside the courtroom and remain ignorant of who Weinstein is or what he is supposed to have done.

On Friday Justice James Burke rejected a motion by the defence to ban the press from reporting on jury selection. From media pool reporting of the selection process this week, it has emerged potential jurors have been dishonest in their applications; some replied to a questionnaire to say they have been victims of sexual or domestic violence; many are aware who Weinstein is; and at least one said they planned to find him guilty and had a financial motive for sitting on the jury.

Stanley Goldman, a tenured professor of criminal law and evidence at Loyola School in Los Angeles, believes while there could be people in the geographical catchment area around New York City that know the name Harvey Weinstein but little else (it is easy in film industry circles to view Weinstein as someone of global renown), it would be hard to shield jurors from incessant news coverage as the case proceeds.

Goldman covered the trials of O.J. Simpson and Michael Jackson as a commentator and a reporter and says, “It may prove more difficult in this case to keep news about the trial from the jury than it was in cases like O.J. Simpson. Not only was there very little internet news available during that era, the jury was also sequestered.”

“Convince someone with their heart and they will rationalise with their mind.”

Sequestering a jury – or confining them to a location while they deliberate the facts of the case – seldom happens these days. Once jurors are eventually sworn in, the name of the game is getting them onside. “The defence will be saying to themselves, ‘How do we put together a compelling narrative that will convince one juror in their heart that [finding Weinstein guilty] is not the right thing to do,’” says Haushalter, who notes that inundating the court with documents is not the way to go. “You need to convince someone with their heart and they will rationalise with their mind.”

While the prosecution is likely to paint a picture of Weinstein as a controlling bully whose sex drive and lust for power gave him the idea he could dominate any woman he desired, the defence will attack the credibility of Weinstein’s accusers, which is where things could get unpleasant. “I wouldn’t be surprised to see the defence attempt to argue that even if there was a sexual encounter with the complaining witnesses, it was part of a consensual quid pro quo between Weinstein and the accusers and therefore not technically a crime,” says Goldman.

Terminology counts for everything. “Defence attorneys will use the term ‘complaining witness’ and not ‘victim’,” notes Haushalter, who succeeded in getting the so-called 50 Shades Of Grey rape case thrown out in 2017 after his client, a college student, argued he had been role-playing scenes from the erotic film series in a consensual interaction. “If you use the word “victim” you’re using prosecutor terminology.”

One of the aces up the defence’s sleeve is the lack of forensic evidence, notes criminal defence attorney Richard Kaplan of Kaplan Marino. “It gets down to ’he-said, she-said’.” Kaplan also cites the length of time it took for accusers to come forward with their stories, and the reason why they are doing so now, as strong planks in a possible defence strategy. While fear and shame often play a role in delaying a complaint, Weinstein’s team will try to make mincemeat out of that, and could argue financial incentive is egging the accusers on. “All of the alleged victims have attorneys and are part of the civil cases seeking monetary damages,” says Kaplan. ”They have a financial interest in the outcome of the criminal case.” As previously reported, talks are underway for a $25m global settlement with complainants in civl suits.

“Prior bad acts” testimony proved decisive in Bill Cosby trial

Judge Burke’s decision to allow the prosecution to submit “prior bad acts” evidence has dealt another blow to Weinstein. Such testimony will involve women whose experiences are not part of the indictment but who may – the prosecution hopes – help demonstrate an incriminating habit or custom by Weinstein in his prior interactions with women.

This, Kaplan notes, was used to devastating effect in the retrial of the former TV icon Bill Cosby. In the first sexual assault trial in 2017 the judge allowed one “prior bad acts” witness to testify and it led to a hung jury – one that could not reach the required unanimity in its verdict. In a retrial the following year, the same judge admitted evidence from five “prior bad acts” witnesses. The jury found Cosby guilty on all charges.

For now, all this is a couple of weeks away as the priority remains empanelling a jury and Weinstein shuffles into the courthouse using a walker. “Everything about him has been discussed with lead counsel prior to his arrival at court,” says Haushalter. “They’re presenting the storyline of a feeble old man walking with a walker, somewhat sloppily dressed… It [sends out the message] that he couldn’t physically attack these women – it must have been transactional.”

In the coming months the watching world will learn exactly what jurors make of the circus surrounding Harvey Weinstein.