Harvey Weinstein trial: Defense tries to bar Gloria Allred from courtroom, judge overrules

NEW YORK — The third day of Harvey Weinstein’s sex-crimes trial Wednesday focused again on initial sorting of who among a pool of potential jurors might be dismissed outright and who might survive to face more detailed questioning about whether they can be impartial.

Weinstein, 67, accused of five sex crimes involving encounters with two women, was using a walker again as he arrived at the Manhattan courthouse Wednesday. He entered the courtroom shortly after 9 a.m., hunched over the walker and wearing a baggy black suit. A court bailiff said “good morning” to him, but he didn’t acknowledge or respond. He sat alone, hands folded in his lap; at one point, he shook his head. 

First off Wednesday, Judge James Burke denied the defense team’s motion to bar attorney Gloria Allred from the courtroom because she may be called as a witness. Allred represents multiple Weinstein accusers, including Mimi Helayi, whose allegations form the basis of some of the charges against him and is expected to testify. 

“Ms. Allred should not be allowed to sit in court, watch that testimony and share that testimony with her clients,” argued one of Weinstein’s lawyers, Damon Cheronis. “I’m not trying to attack Ms. Allred, I’m trying to protect Mr. Weinstein’s right to a fair trial.”

Manhattan Assistant District Attorney Joan Illuzzi objected, asserting that Allred’s clients would feel more “comfortable” with her in the courtroom. 

“Ms. Allred would absolutely not (share details),” Illuzzi argued. “(By Cheronis’ logic), let’s exclude all these reporters – anything reporters write will be available to witnesses. What you’re saying is that this shouldn’t be a public trial…”

“The press can write what they want,” Cheronis responded. “I’m not calling them as witnesses – that’s the difference.”

Burke decided Allred could stay: “The court is not going to exclude her because while it is possible, it is unlikely that she would be called as an impeachment witness,” meaning she would be called to testify as a means to question the credibility of a witness. Even so, he said, “there would be no actual harm for impeaching her. She may remain; she will certainly be on the witness list.”

Day 2 on Tuesday included some early fireworks, when Burke scolded Weinstein for using his phone in the courtroom against standing orders. The judge also denied Weinstein’s motion to delay the trial and the prosecution’s motion to revoke Weinstein’s bail and incarcerate him immediately in response to new charges filed Monday in Los Angeles County.

The New York jury selection process, expected to last until at least Jan. 21, began in earnest Tuesday afternoon with an initial pool of 120 prospective jurors who filled out questionnaires. They were asked whether they had hardship or time-commitment issues (the trial is expected to last until at least March 6), and whether at the outset they had doubts about their ability to be a fair and impartial juror in the case.

This initial screening resulted in the dismissal of at least 43 prospective jurors by the judge.  

The media pool report on the screening Tuesday afternoon featured 40 people saying some version of “I can’t,” or “not in this case,” when asked by the judge: Can you be a fair and impartial juror?

At this rate, it seems likely that it will take the full two weeks to assemble a panel of 12 jurors and six alternates. 

Moreover, the potential jurors who survive the initial screening will still have to undergo more in-depth questioning known as voir dire, in which defense lawyers, prosecutors and the judge will attempt to ascertain whether prospective jurors have already made up their mind about Weinstein’s guilt or innocence, and whether their own life experiences would influence their ability to remain impartial. 

“Jury selection is extremely difficult in such a notorious case,” Los Angeles criminal defense lawyer Lara Yeretsian says. “Can he even get an unbiased jury? It will be an uphill battle to weed out ‘stealth’ jurors – those whose minds are already made up but who profess to be unbiased. Jurors must make decisions based on the evidence, not on their opinions.”

Richard Klein, a law professor at Touro College in New York, says that some jurors may have ulterior motives for getting picked for the jury, including because they support the #MeToo movement or that they seek a book deal from the experience. 

“Those jurors’ responses to questioning by the judge may well be shaped by the juror knowing what to say in order to assure the court that the juror could be fair and be selected for this trial,” Klein says.

Former criminal defense attorney Michelle Simpson Tuegel, who now represents victims of sexual assault or abuse, says the trial takes place in “an unusual environment.”

“How the attorneys approach trying to find an impartial jury after the #MeToo wave, with such a known accused party, is the most important part of the trial, and the most challenging,” she says.

At least six Weinstein accusers are expected to testify against him. They include two women whose allegations form the basis of the five sex-crime charges, including rape and predatory sexual assault; one says Weinstein raped her in a Manhattan hotel room in 2013, the other says Weinstein performed a forcible sex act on her in his Manhattan apartment in 2006.

Four other women, including “Sopranos” actress Annabella Sciorra, are expected to testify about uncharged alleged crimes, to help bolster the prosecution’s argument that Weinstein engaged in a pattern of predatory sex crimes dating back decades.

Weinstein, who was charged in May 2018, has pleaded not guilty to all charges and has been free on $1 million bail (recently raised to $5 million). He has denied all allegations of non-consensual sex. If convicted, he could receive a life sentence.

The charges in the Los Angeles County case include four sex crimes. Weinstein is accused of raping one woman and sexually assaulting another in separate incidents over two days in February 2013. A trial in that case is not expected to occur until after the New York case is resolved. 

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