New York — On Sunday, Harvey Weinstein was a punchline at the Golden Globes. On Monday, he was hit with new sex-crimes charges in Los Angeles. And on Tuesday, he and his lawyers walked into court in New York to begin picking the jury that will decide the fate of the man widely seen as the biggest monster of the #MeToo movement.
Selecting the jury for the Hollywood mogul’s rape and sexual assault trial is likely to be a painstaking, weeks-long process, made complicated by the high stakes, heavy publicity and public revulsion toward him.
In fact, one-third of the first 120 prospective jurors summoned for the case were promptly sent home after the judge asked if there was anyone who could not be impartial and about 40 hands went up.
Weinstein’s lawyers unsuccessfully tried to delay jury selection in light of the new case filed in Los Angeles, asking for a “cooling-off period” to allow the publicity to subside.
“For a prosecutor, this is Christmas morning — the morning of jury selection to have him smeared everywhere,” Weinstein lawyer Arthur Aidala said.
But Judge James Burke expressed confidence that the jurors would know that defendants are presumed innocent until proven guilty, and he pressed on.
The 67-year-old Weinstein, who shuffled into court on a walker after recent back surgery, is charged in New York with raping one woman in a hotel room in 2013 and forcibly performing a sex act on another in 2006, and could get life in prison if convicted. In the Los Angeles case, which will be tried later, he is accused of sexually assaulting two women on back-to-back nights in 2013.
The former studio boss behind such Oscar winners as “Pulp Fiction” and “Shakespeare in Love” has said any sexual activity was consensual.
Jury selection is expected to stretch on for at least two weeks, far longer than for a non-celebrity trial, with lawyers delving into each potential juror’s knowledge and opinions about the case. Opening statements shouldn’t be expected before the Martin Luther King Jr. holiday on Jan. 20, the judge said.
“The defense team is concerned about widespread media coverage of sexual assault and harassment claims against Weinstein, and of jurors prejudging the case,” said Cornell University law professor Valerie Hans. On the other side of the case, “prosecutors are wary of prospective jurors who might reveal a predisposition to blame the victims, even in this age of #MeToo.”
The prospective jurors were given questionnaires asking, among other things, if they could ignore media coverage and decide the case based only on evidence heard in court. They were also told the trial will last six weeks, which could weed out many parents, college students and others with pressing day-to-day obligations.
They were introduced as a group to Weinstein, who ambled toward the gallery with his walker, and were read a list of names that could come up at trial, including actresses Salma Hayek, Charlize Theron and Rosie Perez.
By the end of the day, just 36 potential jurors remained. New pools of prospective jurors will be summoned to court each morning in the coming days.
Tuesday got off to a rough start, with the judge threatening to jail Weinstein for violating court rules by texting in the courtroom.
“Is this really the way you want to end up in jail … by texting and violating a court order?” Burke asked the iPhone-clutching movie mogul, cutting off Weinstein off before he could respond.
Though he declined to issue a gag order, the judge implored Weinstein’s lawyers to stop attacking potential witnesses in their public comments on the case.
“It’s going to be hard enough to get a fair and impartial jury,” Burke said. “None of this will help that, attain that goal.”
Weinstein’s lawyers suggested that the timing of the Los Angeles charges was deliberate on the part of prosecutors, with defense attorney Donna Rotunno saying that if anyone believes it was coincidence, as the district attorney in Los Angeles insisted, “I’d like to sell them the Brooklyn Bridge.”
The judge also denied a request to revoke Weinstein’s bail and jail him until the trial is over, despite a warning from prosecutors that the L.A. case could give the defendant more reason to flee.
In picking a jury, defense lawyers typically want jurors who can “think outside of the box” and look skeptically at a prosecution case, while prosecutors seek people with a linear and methodical mindset, said Thaddeus Hoffmeister, a jury consultant and University of Dayton law professor.
For insight into prospective jurors’ thinking, lawyers have taken to scouring their public social media postings, Hoffmeister said, which is fine under court rules as long as the lawyers don’t follow or friend them or send them messages.
The prosecutors who put Bill Cosby in prison for sexual assault last year, after a hung jury the year before, said they sought to put people 30 and younger on the jury, as well as older people who had children that age, because people in those age groups seem more likely to keep up with the evolving cultural conversation on sexual assault.
“Young people are more likely to have contact with someone involved in a sexual assault or have those experiences themselves,” said Stewart Ryan, one of the Cosby prosecutors. “And professionals are going to be tuned into sexual harassment policies in the workplace.”
Philip K. Anthony, the CEO of Los Angeles-based jury consulting firm DecisionQuest, said lawyers should also be on the lookout for prospective jurors who show signs of not being able to handle the stress of serving on a high-profile case.
In such cases, “there’s an extraordinary level of pressure which the juror feels,” and as the trial goes on, jurors may “begin to focus on how their decision in the case will be interpreted by the community,” Anthony said.
“It dawns on them that whatever decision they reach, they’re going to be second-guessed by people in the community,” he said, and that can influence their thinking.