Harvey Weinstein goes back on trial in New York this week in a redo of the #MeToo-era case in which the disgraced movie mogul was convicted of sexual criminal assault in the first degree and rape in the third degree, but acquitted on three other counts, including the most serious charge, predatory sexual assault.
The legal drama begins with jury selection that is expected to last up to a week. It puts one of the biggest victories of the #MeToo era back in the courtroom just as a backlash against women’s rights – from abortion access to the rise of controversial male influencers like Andrew Tate – unfolds across the US.
Weinstein’s 2020 conviction was overturned in April last year after an appeals court ruled that the judge had unfairly allowed testimony against him from other women whose allegations were not part of the charges against him, with one of the panel, Judge Sallie Manzanet-Daniels, calling it “incredibly prejudicial”.
The new case against the 73-year-old producer will probably be an abridged version of the original case – a remake in movie terms – but with one crucial difference: it includes a new charge based on an allegation from a woman who was not part of the first prosecution.
Additionally, Weinstein was convicted of rape in Los Angeles, which he is appealing in part over testimony from uncharged alleged assaults similarly to New York. Weinstein continues to claim he is innocent, pleading not guilty to all charges brought against him.
But all legal cases are colored by their time and place. Weinstein’s high-powered legal team is betting that the five years on from the first trial, and nearly eight since the #MeToo movement exploded into the public consciousness with Ronan Farrow’s explosive New Yorker account of Weinstein’s alleged abuses, US attitudes toward high-profile cases such as this one may have changed.
“It’s a social justice witch-hunt,” Weinstein’s publicist Juda Engelmayer told the Guardian last week.
Weinstein himself has not been shy in courting conservative supporters. “I want to take a moment to sincerely thank Candace Owens for believing in me and helping me reach millions of new supporters, and to Joe Rogan for amplifying that support even further,” Weinstein said recently.
Owens has expressed sympathy toward Weinstein, despite calling him an “immoral man”, and questioned prosecutor’s motives during a live stream in February. Powerful podcaster Rogan has previously applauded Weinstein’s work, saying he made “some awesome movies”.
Aside from the political landscape, there is now the question of Weinstein’s health. He has been held in New York’s Rikers Island jail complex awaiting retrial. In January, he begged a Manhattan judge on Wednesday to bring his trial forward, saying he wasn’t sure he would live until the spring while incarcerated in the “hellhole”.
Last year, Weinstein sued New York City, claiming that he was receiving substandard medical care for conditions that include chronic myeloid leukemia and diabetes, and for negligence. In December, he was rushed to the hospital for “emergent treatment” following an “alarming blood test result”, according to his spokesperson.
Arthur Aidala, Weinstein’s lead attorney, has said that defense attorneys in the second New York criminal prosecution will not refer to the first, since it was “declared illegal by the highest court in this state”.
Making a criminal case over incidents that are decades old, where it is he-said, she-said and there is no independent witness or physical evidence to corroborate either version, are notoriously difficult to bring.
Weinstein has always claimed any sexual interactions with his accusers were consensual and that – again – is likely to be the core of his fresh defense.
“You may not like Harvey Weinstein. He might be a dirtbag to you. He may try to get over on women, flirting and finagling, just being a cad, but that’s not a crime,” Hermann Walz, a criminal defense attorney and adjunct professor at John Jay College of Criminal Justice.
The retrial comes after another of the #MeToo era’s most prominent men accused of serial sexual abuse, the comedian Bill Cosby, had his conviction for sexual assault overturned in 2021. It is also being held in the shadow of the impending, high-profile criminal sex-trafficking and prostitution case against Sean “Puffy” Combs, set to begin in May.
Ahead of Weinstein’s retrial, trial judge Curtis Farber has made a number of rulings over evidence and testimony. He granted a prosecution request to call Dawn Hughes, an expert witness on the psychological effects of rape and sexual assault, and said an accuser who also testified in the first trial will be allowed to use the word “force” in her testimony even thought he was previously acquitted of first-degree rape, a charge that requires proof of “forcible compulsion”.
Farber also granted a defense request to strike the term “survivor” to describe Weinstein’s accusers – they will now be referred to as a “complaining witnesses”.
The case jurors will hear centers the accusations of three women: a production assistant who alleges Weinstein forcibly performed oral sex on her in 2006; an aspiring actor who alleges she was raped in 2013; and a new accuser who alleges Weinstein forced oral sex on her in a Manhattan hotel room in 2006.
Weinstein’s attorneys claim that the additional charge, filed in September, is prejudicial, claiming that prosecutors kept it out of the first trial so they could use it, if needed, in a second.
Weinstein continued to bring himself back into the public eye last week, weighing in on another contemporary civil claim between the actor Blake Lively and director Justin Baldoni, claiming that Baldoni was stitched up by the New York Times, just as he asserts he had been when it reported on the sexual abuse claims against them.
“They did the same thing: cherrypicked what fit their story and ignored critical context and facts that could have challenged the narrative,” Weinstein told TMZ.
In response, however, the Times pointed to a letter of apology Weinstein issued after its story was published and in which he spoke of his “regret” and “remorse” over his behavior toward women.
Weinstein’s legal team seems to be betting that his retrial will unfold in a US very different from the one in which his first case did. A New York jury will decide if it is right or not.
