Five years after the watershed #MeToo movement and two-and-a-half years since Harvey Weinstein was convicted of criminal sexual assault by a New York jury, the disgraced movie mogul is back in court, this time in Los Angeles, where a jury is expected to hear from a far more broad spectrum of accusers – and possibly Weinstein himself.
Weinstein arrived in court Monday by wheelchair, and showed some difficulty standing up as the jury pool of 67 men and women was introduced in court. Jury selection is expected to give way to opening statements sometime around Oct. 24.
Weinstein is already serving 23 years in a New York prison for criminal first-degree sexual assault and third-degree rape, a conviction he has been granted the right to appeal, arguing that a juror and Judge James Burke was biased against him. Weinstein has maintained his innocence since the beginning, and has spent more than a year in a Los Angeles jail awaiting trial here.
Weinstein faces 11 charges of sexual assault from allegations spanning from 2004-2013. The trial is expected to last approximately eight weeks – two of them jury selection alone – and Weinstein could face up to 140 years in prison if convicted.
Judge Lisa Lench told prospective jurors Monday that she wasn’t sure whether Weinstein would testify, but urged them to not hold it against him if he does not: “As Mr. Weinstein sits before you, he is innocent,” she said, adding “If someone were to ask you for your vote right now, you would have to vote not guilty.”
Weinstein was extradited to Los Angeles in July 2021 and has been held at the Twin Towers correctional facility. His attorneys sought to delay the trial in August, arguing that pre-publicity for “She Said,” based on the book of the same name by two New York Times reporters who uncovered the allegations against Weinstein, would influence the jury. Presiding Judge Lisa Lench rejected that request, along with
another postponement request to allow Weinstein to get his teeth fixed.
Five women are slated to testify against Weinstein, only one of whom has been identified – Jennifer Siebel Newsom, wife of Gov. Gavin Newsom, who self-identified on Monday as the trial was just beginning. Newsom says during her time as an actress, she, too, was lured to Weinstein’s room under pretense of a business meeting and was assaulted.
In addition, prosecutors were initially granted the right to present five additional witnesses to testify to prior bad acts by Weinstein. However, in August one of those witnesses known only as “Miss I” withdrew her testimony and Lench denied the prosecution the right to replace her with another witness, arguing it was too similar to other witness testimony.
It took the New York jury five days to convict Weinstein on two of five charges, and Lench has already agreed that she will allow prosecutors to disclose his prior convictions to this jury. TheWrap spoke with several attorneys about what they expect and how Weinstein is likely to fare.
Legal analyst and former LA County Deputy District Attorney Emily D. Baker said she believes Weinstein’s defense team will have an even greater uphill battle in California.
“In New York he was accused of five charges [three of which the jury dismissed],” she said. “In the Los Angeles case he’s facing 11 different charges with five different victims and multiple prior bad acts witnesses against him, making this a difficult case for the defense.”
LA criminal attorney Louis Shapiro concurred. “I believe it’s more a pro-victim environment here,” he said. “And while I think that defendants in LA or New York generally fare better than in more conservative places, these charges are so highly sensitive and emotionally charged it makes it an uphill battle for [Weinstein], especially in light of his NY conviction.”
Barry Saltzman, a New York-based attorney and legal advocate for sexual assault victims, said he believes the fact that because the NY court allowed and the LA court is also allowing evidence of prior bad acts, “I believe that shows the evidence against Weinstein is very strong. I would expect a similar result as in New York despite the fact that he’s won the right to appeal. I suspect that the evidence is so
strong that ultimately, he’s going to be convicted.”
However, Los Angeles based attorney Shari Karney, who represents victims of sexual assault, sexual abuse, rape, child sex abuse and sexual harassment, argues Weinstein only needs one sympathetic juror, stating it’s about “finding that one juror that empathizes with a white male of power, fame, and privilege, accused of sexual misconduct by actresses.”
“Actresses are victim-shamed in the extreme,” she said. “They are often deemed by the industry and the public as unreliable and prone to acting on the stand if they cry or show trauma or their emotions.”
What, if anything might be markedly different in this trial? The fact that Weinstein
might just take the stand.
“We might see [Weinstein] testifying this time round because he didn’t testify in New York and that didn’t go so well for him,” Shapiro said. “His defense team might think, ‘What have we got to lose if we try it a different way this time around?'”
Baker agrees. “In New York, it was reported that Weinstein wanted to testify in his own defense,” she said. “Now that he has been sentenced to 23 years in New York, he may feel there is nothing to lose by testifying and may take the stand.”
Shapiro also believes that Weinstein’s upcoming appeal could give him a sense of hope that the justice system is fairer than he originally thought.
“I think the challenging part is the defense wants to argue that the women need to be accountable as well. They could well argue that Weinstein may not be a saint but the women went along with him because they would benefit professionally and now, they’re having buyer’s remorse.”
He notes that it’s a tough argument to make without offending people on the jury, but that the legal landscape is different now than it was in 2020.
“We’re a little bit further away from the #MeToo era,” he said. “And the public may be more open now. We saw that play out in the Johnny Depp/Amber Heard trial, with people saying, ‘Not every woman is going to be a victim if they scream #metoo.’ I think that is probably going to be a bell that the Weinstein camp rings at this trial.”
Karney also cited the Depp/Heard trial along with the overturning of Bill Cosby’s sexual assault conviction in July 2021. “The playbook table has been set by Depp v. Heard and Cosby to try the victims instead of the rich, powerful, well-connected men of influence,” she said.
Baker also noted that in the wake of Depp v. Heard, “I wonder if the public awareness of that trial will impact the jury, or will impact the way the media covers this trial?”
Saltzman said that as a victims’ rights attorney, he feels that Weinstein is “a bad player,” and that while he believes Heard was maligned and portrayed in a negative light, the Weinstein case is different.
“I think that the evidence against Weinstein is strong, just like the evidence against Ghislaine Maxwell and — even though it was a civil suit in the end — against Prince Andrew.” He also added that unlike Depp v. Heard, the Weinstein case involves multiple accusations by multiple women.
Sonia Shakoori an attorney with the Los Angeles Center for Law and Justice who works with victims of sexual assault said she too believes there’s a strong chance of Weinstein being convicted.
“I’m encouraged by what happened in New York and that prosecutors here will be allowed to bring up his prior conviction.”
She also feels it’s unlikely his appeal will work in his favor. “Appeals are very hard in my opinion,” she said. “While I’m not 100 percent certain, I really don’t think [the defense] has a strong case.”
No matter how the the trial plays out, all the attorneys noted that it’s the women slated to take the stand (none of whom have been identified yet), who will have the toughest task.
“The legal system is designed to deter women … from speaking up against powerful, male predators regarding sexual abuse and assault,” Karney said.
“The victim is on trial … they are showing Herculean courage in going against Weinstein. Everything is at stake for them. Their careers, reputations and futures. I applaud them and support them.”
Weinstein’s trial is one of four #MeToo-related case getting underway this week, including Danny Masterson in Los Angeles, and Kevin Spacey and Paul Haggis in New York. Separately, Cuba Gooding Jr. is expected to face sentencing later this week in a forcible-touching case; he pleaded guilty in April.