Harvey Weinstein, who was convicted of rape and criminal sexual assault in New York in 2020, will face a new trial for similar charges in California this week. Photo / AP
The former movie producer was already convicted in New York, but his Los Angeles trial could be pivotal if he wins an appeal in the first case.
Harvey Weinstein's second sex crimes trial, which begins Monday in Los Angeles, was once seen as largely symbolic. After all, the former movie mogul, who is 70 and in poor health, still has 21 years to serve in prison following his 2020 conviction in New York for rape and criminal sexual assault.
But a late-summer surprise from New York's highest court — one that gave Weinstein a glimmer of hope of walking free — has heightened the West Coast stakes. Should Weinstein win his appeal, the LA case would determine his fate.
"It is disturbing and shocking that Harvey was allowed to continue his New York appeal, and so we — survivors, supporters — are paying very, very close attention to the Los Angeles trial," said Caitlin Dulany, an actress who has accused Weinstein of sexually harassing and assaulting her in the mid-1990s. Dulany, who is not involved in the LA trial, was a plaintiff in a class-action civil suit against Weinstein in 2018 that a federal judge ultimately rejected.
Supporters of the #MeToo movement are also looking to the trial as a signal of the movement's vitality in the entertainment industry, where there have been setbacks, like the implosion of Time's Up, the anti-harassment organisation. It was founded by powerful Hollywood women in 2017 to make sure Weinstein's behaviour would never be repeated.
If Weinstein is acquitted by Hollywood's hometown legal system, it could have a chilling effect, some #MeToo supporters worry. LA courts already have a reputation for being soft on show business figures.
"There's obviously a lot at stake for the women who are testifying, but there is also a lot at stake for all of us," Dulany said. "If it goes the wrong way, it will be a step backwards. I think it will make it harder for women to come forward in the future."
Others caution against using these trials as a measuring stick of #MeToo's endurance or its waning influence. The court cases involve relatively few women, whose claims must meet the strict standards that criminal law requires for conviction.
"We've never measured the success or the power of #MeToo by high-profile individuals being held accountable," Fatima Goss Graves, the president and CEO of the National Women's Law Center, said.
Weinstein, who has been accused by more than 90 women of sexual misconduct, faces 11 charges in his LA trial, which is expected to last six to eight weeks — long enough to overlap with the November 18 theatrical release of She Said, a US$30 million drama about the Pulitzer Prize-winning New York Times investigation that exposed Weinstein's behaviour. The charges include four counts each of rape and forcible oral copulation involving five women between 2004 and 2013 in LA and Beverly Hills. They represent a more expansive set of accusations than in the New York trial.
Weinstein also faces one count of sexual penetration with a foreign object by force and two counts of sexual battery by restraint, according to the March 2021 indictment, which identified the accusers as Jane Does 1 through 5. They will be identified as such throughout the trial; even if the public is able to determine their identities, the law forbids that they be named during the proceeding.
Only one of the women has been publicly identified: Lauren Young, a model and actress who was allowed to testify at Weinstein's New York trial as a pattern-of-abuse witness. She testified that Weinstein trapped her in a hotel bathroom in 2013 and masturbated while gripping and pinching her breast before she fled.
A second LA accuser is an Italian model and actress who told The Los Angeles Times in 2017 that Weinstein "grabbed me by the hair and forced me to do something I did not want to do." According to a criminal complaint, Weinstein forced oral sex on her, then intercourse, at a Beverly Hills hotel in 2013.
If convicted in California, Weinstein faces a life sentence, regardless of the outcome of his New York appeal.
George Gascón, the progressive district attorney in Los Angeles County who has been blamed by critics for rising crime rates, declined to comment on the Weinstein case, as did Marlene Martinez and Paul Thompson, the deputy district attorneys assigned to the trial.
"The notion of getting justice obviously means a great deal to a great many people," said Robert Weisberg, a Stanford University law professor and co-director of the Stanford Criminal Justice Center. "Losing in California would be bad for the victims, bad for the #MeToo movement and bad for Gascón."
As in New York, Weinstein has denied any wrongdoing, saying that he only engaged in consensual sex. Mark Werksman, Weinstein's LA lawyer, said by phone that Weinstein was the innocent victim of a "massive pile-on," and that the charges against him were "weak and unbelievable and would never have been brought if he were not at the epicentre of the #MeToo movement." Werksman declined to say whether his client would testify or who might be called to testify on his behalf.
In hearings, Werksman has indicated that he will attack the credibility of his client's accusers. In December 2021, for instance, he said in court that one accuser gave inconsistent statements to police and that another faked an orgasm during the alleged assault. At a hearing Tuesday, Weinstein's lawyers pointed to a photo that one accuser posted online of herself with Al Pacino and the caption "beautiful evening" hours after the incident in question, and argued that couldn't possibly be victim behaviour.
Jury selection is expected to take two weeks. Opening arguments will likely begin October 24. Cameras will not be allowed inside the courtroom.
The trial is taking place at the Clara Shortridge Foltz Criminal Justice Center in downtown LA. Since being extradited from New York in July 2021, Weinstein has been held at the nearby Twin Towers jail. He has arrived at hearings in a wheelchair while clad in a brown prison jumpsuit. He usually carries a book, echoing his practice from the New York proceedings; recently it was the novel All the Light We Cannot See.
Lisa B. Lench, the Los Angeles County Superior Court judge presiding over the case, has sometimes ruled in favour of Weinstein during pretrial hearings. For instance, she dismissed one count of sexual battery by restraint from the original indictment, agreeing with a defence motion that the statute of limitations had expired. (It was subsequently reinstated after prosecutors provided additional testimony to a grand jury.)
Lench granted a defence request to allow Weinstein to wear civilian clothes while in court and said she would see what she could do when asked if Weinstein could be fitted with false teeth. "We don't want the jurors to conclude that he's in custody and he's a mess," Werksman said in court.
Lench also ruled that prosecutors could call only five female witnesses to testify about uncharged "prior bad acts" by Weinstein; prosecutors had asked to call another 11, including actress Daryl Hannah and activist and former actress Rose McGowan. Later, Lench further limited these contextual witnesses to four, citing accounts that were too similar.
Those four women will testify under a law known in California as 1108, which allows prosecutors to introduce evidence of a defendant's uncharged misconduct, in an effort to show that Weinstein had a standard mode of operating in such situations. Only one of the women has been publicly identified. She is Ambra Battilana Gutierrez, an Italian model who told New York police in 2015 that Weinstein had groped her breasts and tried to force his hand up her skirt during a work meeting at his office.
"We fear that the government is basically trying to blow Mr. Weinstein away with a fire hose of allegations which are false and uncredible," Werksman said. "The challenge for the defence is to get the jury to look at each and every allegation against him and weigh the evidence of each and every accuser."
Manhattan prosecutors used the law's New York equivalent in Weinstein's 2020 trial, calling on three additional witnesses to help the jury understand the movie producer's pattern of behaviour with his victims.
In other pretrial matters in LA, Lench has sided with prosecutors. In August, for instance, she rejected a defence request to delay the trial until after "She Said" debuts in theatres. Werksman had argued that ads for the film could "dramatically prejudice" the jury. Universal Pictures is expected to spend an at least US$25 million to promote the film's domestic release.
"We'll just have to deal with it," Lench said from the bench.
One important trial-related question is what jurors will be told, if anything, about Weinstein's New York conviction. LA prosecutors had won the right to include information about part of it. But when the New York Court of Appeals accepted Weinstein's case in late August, the matter became complicated: If the LA jury finds Weinstein guilty and bases its decision in part on the information about the New York verdict — and that verdict is subsequently reversed — it could become fodder for an appeal in California.
"We have not decided whether we will present evidence of it," Greg Risling, a spokesperson for the Los Angeles County district attorney, said in an email.
The Court of Appeals decision in New York surprised some in the legal community. The lower-level appeals court had affirmed his conviction in June, finding that Manhattan prosecutors' use of the three "prior bad acts" witnesses was appropriate, and that it helped prosecutors convince the jury that the movie producer engaged in a pattern of conduct in which he would lure women with the promise of career advancement and then assault them.
The lower appeals court in New York did pay special attention to an argument from Weinstein's lawyers, who said it was unfair that a trial judge had ruled that, if the movie producer were to testify, prosecutors could ask him questions about 28 incidents of past behaviour, including acts of violence against people who worked for him. The lawyers said that ruling had prevented Weinstein from testifying in his own defence. Although it ultimately rejected the argument, the appeals court acknowledged that the number of incidents permitted could appear "troublingly" large.
That issue is among those that could be taken up by the New York Court of Appeals, which will likely hear oral arguments on the case late in the spring of 2023, and make a final decision later in the year. By that time, Weinstein is likely to be back in New York in prison. If his New York conviction is upheld by the court, he will serve out that sentence regardless of what happens in the LA trial.
But in the event that his New York conviction is overturned, his future will be decided by a jury that lawyers will begin the process of choosing Monday.
This article originally appeared in The New York Times.
Written by: Brooks Barnes and Jonah E. Bromwich
Photographs by: Todd Heisler and Anna Watts
© 2022 THE NEW YORK TIMES
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