Written by Megan Twohey, Jodi Kantor and Jan Ransom
Since the Harvey Weinstein story broke more than two years ago, everything about it has been outsize: the scope of the allegations of sexual harassment and assault, stretching back decades; the number of his accusers, who total more than 80; and the global scale of the reckoning their stories have inspired.
Now, as the Hollywood producer’s criminal trial begins Monday in Manhattan, the outcome already is anticipated as a verdict on much more than one man’s alleged wrongdoing.
Many supporters of the #MeToo movement that Weinstein’s accusers helped ignite are looking to see whether the legal system can deliver justice for victims. Lawyers for Weinstein, who lost his company, his reputation and his marriage, are arguing that the case is proof that #MeToo has gone too far. At the courthouse, media from around the world, demonstrators outside and spectators in packed galleries will be watching.
But for all the expectations about the high-profile trial, jurors will be hearing a narrow legal case with an already fraught backstory and a highly unpredictable result.
While prosecutors intend to call several female witnesses to show a pattern of misconduct, the charges rest largely on two women. Weinstein is accused of forcing oral sex on a film production assistant and raping another woman, who is still anonymous, her story not publicly known. Most of the other allegations against Weinstein dated too far back to be prosecuted, fell outside New York’s jurisdiction or involved abusive behavior that was not criminal. Other accusers were unwilling to participate, convinced the personal toll would be too great.
The prosecutors’ path to the courthouse has been difficult. They were forced to drop one accuser who had been central to the case. The lead detective was ousted over allegations of police misconduct. And Weinstein, who claims his sexual encounters were consensual, produced emails that he said show a long, intimate relationship that continued after the alleged rape.
The defense team has its own tale of troubles. Weinstein, who could face life in prison if convicted on the most serious charge, has hired, alienated and discarded a series of high-powered lawyers. He has been accused of tampering with his electronic ankle bracelet and tested the patience of the clearly annoyed judge who will preside over the proceedings. Just weeks ago, Weinstein deviated from his lawyers’ script with a tabloid interview in which he boasted of being a pioneering advocate for women in film and complained that his work had been forgotten.
The trial, expected to stretch more than two months, will begin with the judge’s instructions at the state Supreme Court in Manhattan, followed by two weeks of jury selection. Until opening arguments begin, it will be hard to gauge either side’s strength.
“I can’t think of another case where the defendant comes into trial at a larger disadvantage in terms of perception,” said Mark Bederow, a New York criminal defense lawyer and former Manhattan prosecutor. But, he cautioned, “evidence in the courtroom very often is not the evidence that appears in the public realm.”
Stepping Up the Pressure
As dozens of actresses, office assistants and other women spoke out about mistreatment by Weinstein in late 2017 after The New York Times first reported about allegations against him, law enforcement officials in New York, Los Angeles and London quickly opened criminal investigations. The three jurisdictions were feeling the heat: If Weinstein had engaged in decades of alleged predation in those cities, why hadn’t the criminal justice system stopped him?
The pressure on police and prosecutors in New York was especially intense because they had investigated the producer once before. In 2015, an Italian model told police that Weinstein had groped her breasts and tried to force his hand up her skirt during a work meeting at his Tribeca office. Police asked the woman, Ambra Battilana Gutierrez, to wear a wire during a follow-up meeting, and she recorded what sounded like an admission. But the Manhattan district attorney, Cyrus Vance Jr., declined to bring charges, believing that the model’s credibility would be called into question over her shifting account of an earlier alleged sexual assault in Italy.
When the Weinstein story exploded, Vance came under attack for not prosecuting him in 2015. A growing chorus of critics called for Weinstein’s arrest this time around, and fast. Police investigators interviewed more than 70 witnesses over 10 months, traveling to cities across the United States and to others including Montreal, London and Paris, according to a law enforcement official familiar with the inquiry.
But many of the alleged incidents took place outside New York. Police detectives and prosecutors investigated at least 14 alleged assaults that took place in the city, but most were beyond the state’s statute of limitations for prosecuting sex crimes, according to the law enforcement official.
For months, police considered the most promising victim in the criminal case to be Lucia Evans, who had gone on the record in The New Yorker with an allegation of sexual assault against Weinstein. She said that the producer had forced her to perform oral sex on him when she showed up for a 2004 work meeting at his office as a young aspiring actress.
“‘You’re the only one who can put him in jail,’” Evans, in an interview, recalled the detectives telling her.
She eventually agreed to cooperate, but the investigation faced other challenges, with police and prosecutors often at odds with each other. Others stepped up the pressure to charge Weinstein. Carrie Goldberg, a lawyer representing Evans, and #MeToo activists complained publicly that Vance’s office was allowing Weinstein to evade punishment.
In March 2018, Gov. Andrew Cuomo of New York instructed Eric Schneiderman, then the attorney general, to review how Manhattan prosecutors had handled sex crimes complaints, specifically the one against Weinstein in 2015.
Vance publicly denounced the move as “unwarranted intrusion,” but within a month, he had removed Maxine Rosenthal, a hard-nosed sex crimes prosecutor who had been criticized for moving too slowly and offending alleged victims. He replaced her with Joan Illuzzi, a veteran homicide prosecutor.
In May 2018, Weinstein was charged with a criminal sexual act against Evans and with the 2013 rape of the unidentified woman.
Two months later, prosecutors charged Weinstein with forcing oral sex on a film production assistant, Mimi Haleyi, in 2006, and with predatory sexual assault, which essentially means committing serious sex crimes against more than one person. The predatory sexual assault charge is especially significant because it exposes Weinstein to a potential life sentence. To further support that charge, actress Annabella Sciorra is expected to testify that Weinstein raped her in Manhattan in 1993.
But cracks appeared in the case.
In October 2018, the charge based on Evans collapsed when contradictory accounts and alleged police misconduct came to light. Illuzzi said the lead detective on the case, Nicholas DiGaudio, had failed to inform prosecutors that a friend of the young woman claimed that Evans had agreed to perform oral sex on Weinstein after he promised her acting jobs in return.
Evans insisted she had never consented, and DiGaudio denied withholding information from the prosecutors, but he was removed from the case. Since then, Sgt. Keri Thompson, who oversaw the inquiry, has come under internal investigation for allegations of misconduct unrelated to the Weinstein case.
Many of Weinstein’s accusers have said they maintained contact with him after being preyed on by him because of his power as a producer. But Donna Rotunno, Weinstein’s lawyer, said of the messages from the women in the criminal case: “These are women who spent time with him over periods of time, and I think we have evidence to show that the time was nothing but positive and favorable.”
In a CBS interview, Rotunno said the #MeToo movement “allows the court of public opinion to take over the narrative” and “puts you in a position where you’re stripped of your rights.”
A Pattern of Predation
In recent months, the prosecution won a major victory: the ability to call three additional women who said Weinstein had abused them. These witnesses, whose allegations are too dated to prosecute, could help override some of the prosecution’s constraints — the small number of victims, the short arm of the statute of limitations. The women, whose names have not yet been disclosed, may bring to life for jurors the pattern of the producer’s alleged predation and its details, many of them consistent in accounts from woman to woman, year to year.
The defense’s greatest challenge may be Weinstein himself, even though he is not expected to testify. “Right or wrong, fairly or unfairly — who is more despised than Harvey Weinstein?” said Bederow, the defense lawyer.
Weinstein parted ways from Benjamin Brafman, who has a record of acquittals for high-profile clients; then a supposed “dream team” of defense lawyers collapsed. Weinstein was the person who insisted on obtaining the old emails with the two women at the core of the case. But he has also overdirected, undermined, second-guessed and frustrated lawyers who were trying to help him.
In an email to a Times reporter, Weinstein said he had been “studying every aspect of the case.” He broke with Brafman because of “different approaches to how to deal with the trial,” he said, adding, “I felt it was important to have a woman on the team.”
Weinstein has sometimes irritated Justice James Burke, who will hear his case and shape many of the critical decisions of the trial, such as whether the defense will be able to air the questions of police misconduct. A former prosecutor in the Manhattan District Attorney’s Office, where he worked for 12 years, Burke is known as a prickly but fair-minded jurist with little tolerance for legal showboating or incompetence.
Although the judge agreed to dismiss one of the charges against Weinstein, he has ruled against the defendant and his lawyers on numerous other issues. He has snapped at Weinstein not to use his cellphone in the courtroom and told the producer, who was about to undergo back surgery for injuries from a car accident, that the trial would be held with or without him regardless of his health.
On Monday, Burke will lay out the timeline for the trial, which will begin with two weeks of jury selection — no simple matter, given Weinstein’s notoriety. Two thousand summonses were issued in the hope of getting 500 potential jurors to report Tuesday to the state Supreme Court, where the judge and lawyers for both sides will begin whittling the pool down to 12 people and six alternates, said Lucian Chalfen, a court spokesman.