Prosecutors can use accusations from six additional women — but not Daryl Hannah or Rose McGowan — when they try to convince a Los Angeles jury that Harvey Weinstein raped or sexually assaulted five women in and around Beverly Hills between 2004 and 2013, a judge decided Wednesday.
Los Angeles County Superior Court Judge Lisa Lench made her ruling from the bench after prosecutors sought permission to admit so-called “propensity” evidence from a total of 16 women who levied allegations against the disgraced movie mogul beyond the underlying charges in the California case.
Weinstein’s lawyer, Mark Werksman, said none of the women should be allowed, especially Hannah, because her particular allegation that Weinstein was “banging on her door” at the Hôtel du Cap-Eden-Roc during a Cannes Film Festival in the early aughts didn’t result in an alleged crime. She managed to escape “out a window,” he said.
“The prosecution wants to introduce her testimony for an inflammatory purpose, to suggest that this man is so despicable that he would attempt to rape America’s sweetheart, the mermaid from Splash,” he said. “No jury can keep this stuff straight. I struggle in reading the prosecution’s more than 100 pages of briefs to figure out the complex mathematics that results from a Rorschach-like set of arrows and subsets [of witnesses].”
Before making her ruling, Judge Lench agreed that 16 extra accusers was “too many” and might “confuse the jury.” She specifically asked Deputy District Attorney Paul Thompson to explain his rationale for Hannah.
“The prior conduct showed an obsession with [Hannah] by the defendant, that he wanted to get into her room, alone with her late at night, and there was a sexual obsession,” Thompson said.
In the end, Judge Lench excluded Hannah and any proposed accuser whose allegations dated back to before 2000, including McGowan. Werksman argued against McGown on the grounds that her allegation dates back to 1997 and because it involves what he called a brand new “modus operandi” in which Weinstein allegedly grabbed her by her hoodie and dragged her to a hot tub “caveman-style” to forcibly perform oral sex on her.
“It is apparent from the evidence that the prosecution will attempt to prove that Mr. Weinstein is an all-purpose, all-weather, 24/7 rapist. He allegedly sexually assaults victims of all ages, from late teens to late 30s. He assaults women in their homes, in his home, in hotel rooms, in offices. He assaults women in beds, on couches, against coat racks. He allegedly performs oral sex, and vaginal penetration, and digital penetration. In short, your honor, there is no modus operandi,” he argued.
Judge Lench said the six extra accusers that she’s allowing include one identified as Natassia, two that prosecutors can select over the next two weeks, and Miriam Haley, the former production assistant that Weinstein was convicted of sexually assaulting at his SoHo apartment in 2006. Thompson said he did not plan to call Haley to the stand but rather use documentation related to her case.
When Werksman said it felt “arbitrary” that the court was allowing prosecutors to simply “pick” the two other accusers, Judge Lench responded, “Personally, I think they’re all relevant.”
Weinstein, 70, attended the hearing in custody in a wheelchair, wearing a brown jail uniform over white long underwear with a pink hospital bracelet on his right wrist above his handcuffs. He spoke very little during the hearing except to interrupt Werksman at one point to make clear he still maintains his innocence.
“My client reminded me that he absolutely denies these allegations,” Werksman said after leaning down to whisper with Weinstein.
No trial date has been set in the case, but the judge asked Weinstein to agree to return to court on June 10 while preserving his right to begin trial within 90 days of that date.
“I’m just thinking,” Weinstein said before giving his answer. “With all these new witnesses… OK, I’ll just say yes.”
Weinstein has pleaded not guilty to 11 counts of sexual assault involving the five unidentified women. The DA’s office claims Weinstein raped three of the women — one of them on two separate occasions a year apart — and sexually assaulted two others during attacks at hotels.
The transcript of Weinstein’s grand jury proceeding remains sealed, but prosecutors allege that less than 24 hours after Weinstein’s purported rape of Jane Doe No. 1 at the Mr. C luxury hotel in Los Angeles, he sexually assaulted another victim at the Montage Hotel in Beverly Hills.
California prosecutors first charged Weinstein in January 2020, just as jury selection was starting at the once-powerful producer’s New York criminal trial. In that trial, a Manhattan jury convicted Weinstein in February 2020 of two felony sex crimes: the third-degree rape of aspiring actress Jessica Mann at a DoubleTree hotel in Midtown Manhattan in 2013; and the first-degree sex assault of Haley.
Weinstein was sentenced to 23 years in prison but has since appealed his landmark #MeToo conviction, with the First Judicial Department of New York Supreme Court’s Appellate Division hearing oral arguments on the challenge last December. In a surprise to many spectators, the five-judge panel appeared sympathetic to Weinstein’s claims that his Manhattan trial judge, Justice James Burke, allowed the jury to hear too many complaints about Weinstein’s alleged history of bad behavior.
The justices did not immediately rule on the appeal, but their questions and comments have caused some court observers to speculate Weinstein’s conviction might be overturned. If that happens, it’s possible Weinstein could get out on bail pending his trial in Los Angeles.
More than a hundred women have stepped forward with public allegations that Weinstein sexually harassed or assaulted them, including actors Ashley Judd, Annabella Sciorra, Mira Sorvino, Salma Hayek, Rosanna Arquette, Gwyneth Paltrow, Paz de la Huerta, and Asia Argento.