The People v Harvey Weinstein: tension in a packed courtroom

Last Monday morning, only hours after his former Hollywood friends and collaborators partied long into the night, Harvey Weinstein was hobbling up the steps to an austere New York City criminal court.

The once all-powerful film producer usually ignores the questions that reporters shout at him. But this time he humoured one of them. “No!”, he yelled back to a query of whether he had watched the Oscars from home. He smiled and continued inching his way into court.

Hunched over in a dark-coloured suit, Weinstein arrives at court each day around 9.15am. Here, he is met by a very different kind of red carpet; the marble hallway of the court entrance becomes a makeshift corridor for paparazzi. As he slowly enters, with the help of an aide, the penned-in reporters come to life; many have waited since before dawn to catch a glimpse of him.

This winter I’ve slipped in and out of 100 Centre Street intermittently, taking breaks from my day-to-day reporting duties to witness history. Inside the courtroom it has often felt as if I was watching a movie unfold in real time, as the chief antagonist of the #MeToo movement has for the first time been publicly confronted by his accusers.

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What I have watched has been freq­uently devastating but always gripping, as a clan of theatrical, high-powered lawyers has looked to turn the past few years of public discourse about women and men on its head.

Since the trial opened on January 6th, we have witnessed a battle of tropes: the casting couch versus the woman sleeping her way to the top.

New York state prosecutors have tried to convince the 12 jurors that Weinstein is a rapist who has preyed upon vulnerable women for decades. His defence has countered that Weinstein is the true victim, as power-hungry women offered sex in exchange for career ascension in Hollywood. "The only thing that matters in this case is what happens in these court walls," Damon Cheronis, one of Weinstein's lawyers, declared in his opening statement.

Every day, sexual assault cases are heard in courts across the US – but this is the most significant in years. More than 100 women have come forward with allegations of sexual harassment or assault by Weinstein since the first explosive accusations about him were published in the New York Times and the New Yorker in October 2017. Those investigations had a snowball effect as more and more women spoke out about their own experiences, fundamentally changing the public narrative about harassment and assault.

Difficult to prove

Whatever the verdict, this trial will surely cast a long shadow over future sex crime cases and encourage – or discourage – other women in reporting allegations.

"Many sexual assault victims and survivors are watching carefully to see what kind of treatment they might receive if they dare bring an accusation in the criminal process," says Suzanne Goldberg, co-director of Columbia Law School's Center for Gender and Sexuality Law. "These women face a scepticism that other crime victims don't face. In most robberies or even criminal fraud cases, the presumption is not that you might be making this up."

In sexual assault cases, the odds are stacked heavily against accusers. Only 23 per cent of rape or sexual assault victims report the crime to the police, according to a US Department of Justice study. Within that group, only a fraction of these cases lead to a trial, and about 35 per cent of rape trials end in conviction, the DoJ found.

Sexual assault cases are often difficult to prove and become a battle of credibility, says Ari Wilkenfeld, a lawyer who represented Brooke Nevils in the sexual assault case against Matt Lauer, longtime co-host of NBC's morning talk show Today. Allegations may date back years, and there is usually little evidence; decisions hinge on whether the jury believes the accusers. Weinstein's trial is even more complex because the women maintained friendly relations with him after the alleged assaults.

The biggest challenge representing these women is “dealing with the jury’s preconceived notions about how a sexual assault victim should behave after the assault. Whether it’s a continued relationship with the assailant, or failing to report it in a timely manner, or something else”, says Wilkenfeld. “It’s a question of who the jury finds more credible.”

The People v Harvey Weinstein has been rife with drama. Women have told harrowing stories, choking through sobs. Court was once adjourned before lunchtime because one accuser appeared to have a panic attack on the witness stand.

Supermodel Gigi Hadid was called in as a potential juror (she was ultimately dismissed, despite telling the trial judge that she could "keep an open mind"). The defence opened an examination of one of their witnesses with the blunt question: "Have you ever seen Harvey Weinstein come out of a bathroom suite naked?"

Through all this, the jury remained stoic, though eyebrows were raised when they were forced to look at photographs of a naked Weinstein, after an accuser claimed that his genitals were “deformed”.

‘Ultimate feminist’

Donna Rotunno, Weinstein's head defence attorney, has become a character of the trial in her own right. With perfectly coiffed hair and wearing silk blouses with pencil skirts, the 44-year-old resembles a cable news anchor. Her adversaries, the district attorneys, were usually dressed in plain black attire, befitting a high school principal.

The Chicago-based lawyer identifies as the “ultimate feminist” but has built her career by defending men in sexual assault cases. She is also a sceptic of the #MeToo movement: last week she told the New York Times that the onus is on women to protect themselves, explaining that she has never been sexually assaulted because she “would never put [herself] in that position”.

Her comments led to a fierce backlash online and a scolding from judge James Burke, who had requested that the lawyers not speak to the media during the case.

The criminal trial in Manhattan is fairly narrow because the vast majority of claims against Weinstein did not qualify; some incidents had taken place too long ago, while others fell outside of New York's jurisdiction.

Weinstein faces five charges including rape and predatory sexual assault – which in New York carries a maximum sentence of life in prison. The charges relate to two alleged incidents: raping aspiring actor Jessica Mann in a hotel in 2013; and forcing oral sex on production assistant Mimi Haleyi in his apartment in 2006. Weinstein denies the charges.

During tense moments in the packed courtroom, the sound of journalists typing on laptops escalates, like an army of swarming bees. (Weinstein’s defence lawyer once complained that he could “hardly hear himself” over the typing.) Windows are left open because the courtroom is always uncomfortably hot; sirens, honking horns and an occasional flautist could be heard from outside.

The prosecutors’ tactic has been to build their case through repetition, establishing a pattern of Weinstein’s behaviour. Over two weeks they brought in woman after woman to recount their encounters with the accused. They described in detail how a 21-stone Weinstein cornered them in hotel rooms and bathrooms, physically restrained them, and then raped or assaulted them. The defence then painstakingly combed through emails, text messages and social media posts, contending that these relationships were, in fact, consensual.

The descriptions were specific and graphic. Actor Annabella Sciorra, of Sopranos fame, testified how her alleged rape by Weinstein left her traumatised. "I had this wall that was white, and then I began to paint it like a blood-red colour," she said, of the weeks after the alleged incident. "I don't know what I was thinking, but I used to cut myself and put the blood from my hands and fingers into this masterpiece."

Confrontations

Sciorra testified that Weinstein stormed into her Manhattan apartment, held her wrists above her head and raped her, then left her on the floor in her nightgown. She also says he later ambushed her in a Cannes hotel room in his underwear, holding a bottle of baby oil.

Rotunno aggressively challenged every woman on the minute details of their claims; injecting scepticism to every decision they made. Why would Sciorra open the door in her nightgown? Why didn't she call the police or file a complaint with her condo board? Did she scratch him or try to poke his eyes? Why didn't she ask Robert DeNiro or Sylvester Stallone for help?

These cross-examinations produced the most devastating confrontations of the trial. Rotunno’s interrogation of Mann, during which she parsed emails in which Mann called Weinstein her “pseudo father”, prompted the 34-year-old woman to become distressed and leave the courtroom in tears.

Mann’s testimony was particularly crucial because she is one of the two women upon whom the charges are built. Her case is also complex. Mann, who was an aspiring actor from a dairy farm in rural Washington state, alleges that Weinstein raped her in a hotel room in 2013.

She also admits that she carried on a tumultuous relationship with Weinstein for years after that – an experience that she told jurors was “extremely degrading”. But after breaking down in tears, Mann returned the next day and fought back against Rotunno’s undermining questions.

When asked why she would ask a rapist for help getting a membership to the Soho House social club, she defiantly faced the jury and said: “I want the jury to know he is my rapist ... He raped me. That is a fact.” Weinstein, who reportedly dozed off during Mann’s testimony, has stayed mostly expressionless throughout these testimonies. Occasionally he turns in his seat, mouths the word “no” during an accusation, or stares back at the packed courtroom. But most of the time he remains silent, lips pursed, chewing on mints.

Rotunno’s defence team has brought in witnesses to undermine the accusers’ stories. Mann’s former roommate, a Brazilian model called Talita Maia, said her friend had described Weinstein as her “spiritual soulmate”.

The ongoing relationship some of these women maintained with Weinstein undoubtedly provides a challenge to the prosecution, who sought the help of Barbara Ziv, a forensic psychiatrist, to describe how sexual assault victims tend to behave – a tactic also used in the trial that sent Bill Cosby to prison. Ziv told jurors that victims' responses are often counterintuitive, and that rape usually happens with someone you know, not strangers.

Additional accusers

Amid the drama, Judge Burke maintains an almost studiously monotone voice, denying emphatic motions and reminding jurors that this case is “not a referendum on women’s rights”. But he has also made rulings that favour the alleged victims, says Wilkenfeld. In one key decision, Burke has allowed the prosecution to call several additional accusers as witnesses, helping to establish a pattern about Weinstein’s conduct and setting a precedent for future sexual crime cases.

Weinstein’s jury is on the cusp of deciding his fate. It was selected over two weeks in January, as hundreds of Manhattan residents told Burke they could not be impartial regarding a figure who has dominated headlines. The ultimate composition of the group was viewed as a slight win for the defence: seven men, including six white men, and five women. Wilkenfeld says that the hardest part of convincing the jury is “terror amongst men that they are going to be falsely accused of rape”.

He cites the term “righteous victim” for the types of sexual assault cases that prosecutors are more likely to win. “Somebody was raped, by a stranger, in an alley. She had no alcohol in her system. She reported it immediately. She’s perfect,” he says. But cases like that against Weinstein are “hard to win ... the outcome is much less clear”.

On Tuesday, the 26th day of his trial, Weinstein was given the last chance to break his silence and take the stand. The courtroom buzzed as Weinstein and his lawyers deliberated in a private room for 30 minutes. But when they returned, attorney Damon Cheronis announced that Weinstein would not testify, and the defence rested its case.

As he made his way out of the courtroom, hunched over his walking frame, Weinstein seemed to be in good spirits, grinning at the reporters lining the marbled hallway. “I wanted to [testify]\,” he told them. When asked whether his walking frame was a “prop” intended to attract sympathy – as the prosecution and many outside the courtroom have alleged – the disgraced mogul smiled widely and turned around: “I’ll have a race with you”.

With that, Weinstein was whisked into the elevator, flanked by lawyers.– Copyright The Financial Times Limited 2020