Harvey Weinstein can’t postpone his upcoming serial rape trial in Los Angeles to wait out the possibly “intense” media circus surrounding the November release of She Said, the movie chronicling his downfall, a judge ruled Monday.
The Brad Pitt-produced awards season contender stars Zoe Kazan and Carey Mulligan as Jodi Kantor and Megan Twohey, the real-life New York Times reporters who helmed the blockbuster Pulitzer Prize-winning exposé into Weinstein’s history of sexual misconduct.
Weinstein, now serving 23 years in prison for the rape and sexual assault of victims in Manhattan, sat quietly in a Los Angeles courtroom Monday as his defense team asked that his October 10 trial date be pushed to January. One of his lead lawyers, Mark Werksman, cited the upcoming release of She Said as well as a decision by New York’s highest court last week to review the decision from a lower appellate division last June that upheld Weinstein’s February 2020 conviction.
“This case is unique. Mr. Weinstein’s notoriety and his place in our culture at the center of the firestorm which is the #MeToo movement is real, and we’re trying to do everything we can to avoid having a trial when there will be a swirl of adverse publicity toward him” that could “cause prospective jurors to form biases,” Werksman argued.
“There will be billboards, ads, social media pressure,” Werksman said. “The movie is by Brad Pitt, of all people, who himself garners tons of publicity for anything he does. So this is guaranteed to be a big deal in the public consciousness and the consciousness of prospective jurors.”
Judge Lisa B. Lench denied the request from the bench, saying that while an explosion of publicity is “entirely possible,” she has the power to screen and instruct jurors.
“I don’t’ think there’s going to be a time when there isn’t media coverage with respect to this case, and I if wait until after this movie comes out, then I’m going to be dealing with a jury panel that has potentially seen it. At least I can instruct the jurors not to watch what may be out there,” she said.
On the issue of the revived appeal in New York, Werksman asked Judge Lench to either postpone the trial three months or at least consider excluding Miriam Haley as one of the uncharged accusers introduced at trial. (Prosecutors previously won the right to bring in Haley’s testimony from the New York case – testimony that led to Weinstein’s conviction for a first-degree sex assault of Haley.)
“We’re looking to the court to safeguard these proceedings” and not allow prosecutors to “play one more bongo drum on [Weinstein’s] head by introducing the conviction from New York in a way that could result in all of this becoming null and void,” Werksman said. His argument was that a possible future reversal of the New York conviction could jeopardize a possible conviction in Los Angeles if jurors base their decision, at least in part, on evidence from the New York case.
Judge Lench said she had no intention of waiting out the revived New York appeal, especially since it had no set timeline and could take months or years to fully resolve. She also said it would be up to prosecutors, not the court, to bring in Haley or not.
“To try and maneuver around what they may do [in New York] is problematic for me,” Judge Lench said.
Before the hearing ended, Weinstein’s lawyers pleaded with the court to step in and help their client receive “restorative” dentistry to replace missing or rotten teeth before trial. Werksman said Weinstein needs “caps and crowns,” as opposed to recommended extractions, so that when his trial starts in six weeks, “he doesn’t look indigent and unkempt.”
“We don’t want the jurors to conclude that he’s in custody and he’s a mess,” Werksman argued.
Judge Lench said she would inquire with the jail’s medical staff, but she cautioned there was “no guarantee” Weinstein would get the exact treatment he “desires.”
“I appreciate the feeling Mr. Weinstein has that he’s unpresentable. I don’t know that I share that feeling. And I don’t know that he’s in any more of a detrimental position than anybody else who’s in custody during a trial. There are downsides to it. He’s in custody because he was sentenced in New York, that’s the main reason he’s in custody. I can’t do anything about that,” she said. “I understand it’s his position that restorative dentistry is necessary. I can’t say whether it’s necessary. I can say that it may be preferred, but I can’t say that it’s necessary.”
Weinstein has pleaded not guilty to 11 counts of sexual assault involving five Jane Does allegedly attacked in Los Angeles County. 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 in and around Beverly Hills between 2004 and 2013.
While the identities of the charged victims remain under seal, court proceedings have revealed prosecutors proposed using public accusers Daryl Hannah and Rose McGowan as “prior bad acts” witnesses.
Judge Lench excluded Hannah and McGowan last May when she ruled that only five of the 16 extra accusers sought by prosecutors would be allowed to testify. That number was later whittled down to four. One of the extra accusers still set to testify is Ambra Battilana Gutierrez, the Italian-Filipina model whose groping allegations in 2015 led to an NYPD sting in which she wore a wire and recorded Weinstein apologizing for her assault.
She Said, meanwhile, is set for release on November 18. The film takes its name from Kantor and Twohey’s non-fiction book She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement and also stars Patricia Clarkson, Andre Braugher, Samantha Morton and Jennifer Ehle.
Pitt’s connection to the movie is expected to generate headlines. The actor/producer once reportedly confronted Weinstein over the longtime movie mogul’s alleged harassment of Gwyneth Paltrow, but Pitt later starred in Quentin Tarantino’s 2009 flick Inglourious Basterds, which was co-produced by the Weinstein Company.