Harvey Weinstein’s rape and sexual assault trial, which begins Monday in New York City, has already seen more backstage drama, intrigue, infighting and cast changes than the Hollywood legal thriller that it could very well become one day.
It’s been more than two years since bombshell reports from the New York Times and The New Yorker magazine triggered an avalanche of sex assault accusations against the once-indomitable Hollywood producer that reduced him to a pariah and turned the #MeToo hashtag into a movement that forced a reckoning among powerful men across a spectrum of American industries.
Following multiple indictments, a changing series of criminal charges and complaining witnesses, three sets of defense attorneys, a lead detective thrown off the case, and midstream changes to the prosecution’s team, the all-important jury selection process begins this week.
A total of six women are expected to testify at trial that Weinstein sexually assaulted them, but he is only charged with attacking two. Three more are expected to serve as “prior bad acts” witnesses -- and another will testify in support of the state’s claim that Weinstein is a sexual predator. He is facing five felony charges, and if convicted on all counts he could go to prison for life.
Weinstein heads to trial nearly five years after detectives from the Special Victims’ Division of the New York Police Department (NYPD) first began investigating him.
In spring 2015, Italian model Ambra Battilana Gutierrez reported to NYPD detectives that Weinstein had groped her breasts during a business meeting at his office in Manhattan earlier that day. It was the first known public allegation against Weinstein.
Investigators convinced her to accept an invitation to return to meet Weinstein for a dinner meeting the following night at the Tribeca Grand Hotel wearing a wire. Despite Gutierrez allegedly capturing Weinstein on undercover audio recording appearing to admit to the alleged assault, prosecutors from Manhattan District Attorney Cyrus Vance's office declined to charge Weinstein -- blaming police investigators for failing to get prior approval for the undercover wire, and asserting that the subsequent audio was “insufficient to prove a crime under New York law.”
Then, in early October 2017, reports in the New York Times and the New Yorker threw a spotlight on Weinstein by documenting his longstanding use of non-disclosure agreements and aggressive, behind-the-scenes public relation campaigns to keep his alleged predatory behavior under wraps for decades.
Before the month was out, his wife would leave him, A-listers who starred in his films would publicly rebuke him and accuse him of assault and misconduct, and more than three dozen women would step forward to accuse him of some form of sexual assault as well.
Before the year was out, more than 80 women would come forward to detail a spectrum of alleged sexual aggression by Weinstein, ranging from sexual harassment to forcible rape, and he would face a federal lawsuit from six women which alleged that his attempts to conceal and cover up accusations of sexual assault were tantamount to racketeering.
Weinstein ultimately reached a tentative global settlement in a number of civil cases last month for $47 million, a source briefed on the deal confirmed to ABC News. After attorneys' fees, roughly $31 million will be split among more than 30 of his accusers. According to the source, Weinstein's insurance company will pay out the settlement money, and the producer will not be required to admit any wrongdoing.
Weinstein has pleaded not guilty to all charges against him and denied ever engaging in non-consensual sex with anyone.
Uphill battle for Weinstein
Weinstein stands charged with raping one woman in a Manhattan hotel room in 2013 and performing a forcible sex act on a different woman, who has since identified herself as former Weinstein production assistant Mimi Haleyi, in 2006.
In addition to the testimony of those two women, three more women are expected to testify to similar alleged sexual assaults by Weinstein for which he has not been charged, as prosecutors seek to show a pattern of predatory behavior.
At a closed hearing earlier this year, Manhattan Supreme Court Judge James Burke allowed the introduction of three “prior bad acts” witnesses – women who claim Weinstein sexually assaulted them but whose accusations fall outside the statute of limitations for prosecution, according to court documents that reference the decision.
The use of such witnesses has proven significant in previous high-profile criminal trials, especially Bill Cosby's trial last year on charges that he drugged and sexually assaulted Temple University basketball coach Andrea Constand.
Legal experts said the decision on whether or not to allow prior bad acts witnesses to testify in a sex assault trial can be fraught with peril. The judge ultimately must weigh the value to the jury of hearing additional evidence from other accusers with very similar accounts of being assaulted, versus the potential prejudicial cumulative effect such witnesses could have on the defendant.
A sixth woman, "Sopranos" actress Annabella Sciorra, is expected to testify that Weinstein raped her in her Manhattan apartment in the winter of 1993-94. Predatory sexual assault requires that prosecutors prove to a jury that Weinstein seriously sexually assaulted at least two women.
Even if he is acquitted at trial in New York, the 67-year-old producer remains under investigation for sexual assault in Los Angeles and London. Last month, just before Christmas, a spokesperson for the Los Angeles District Attorney's office said that prosecutors there are reviewing eight allegations against the embattled movie producer for sexual assault, according to Variety, which first reported the D.A.'s statement. A subsequent report in the Los Angeles Times quoted multiple sources saying the Los Angeles County district attorney’s office has escalated its review into Weinstein and is considering filing criminal charges against him this year.
Key expert witnesses
The prosecution is expected to call Dr. Barbara Ziv, a forensic psychiatrist with an expertise in the behavior of sexual assault victims and whose testimony kicked off the prosecutors' case in Bill Cosby’s Pennsylvania sexual assault trial last year.
By testifying first, Ziv helped inoculate the accounts of complaining witness Andrea Constand and five “prior bad acts” witnesses in that trial from dogged attempts by the defense to discredit the women.
Ziv testified that “the vast majority of victims of sexual assault do not report to authorities,” and that sexual assault reporting can be delayed “from days to weeks to months to years.”
She testified to how common counterintuitive behavior is in victims of sexual violence, and how they rarely act the way you would think they would.
“Most people don’t fight back, don’t say anything, and don’t, you know, immediately, when it’s over, don’t jump up and leave,” Ziv said. “They are in a state of shock, that’s how they describe it.”
Prosecutors facing challenges, too
Ziv will face a formidable foe in Elizabeth Loftus, a veteran expert witness for the defense on the malleability of human memory, who has testified for decades in dozens of high-stakes criminal trials. Loftus’ testimony in the 1980s about recovered memories helped acquit a California couple who had been charged with sexual abuse of nine children at their day care center, the McMartin preschool.
She has also testified in the criminal trials of O.J. Simpson, Oliver North, and the Los Angeles Police Department (LAPD) officers tried in the Rodney King beating. While allowing Loftus and another memory expert in as defense witnesses in Weinstein's trial starting next week, Judge Burke also placed restrictions on the topics about which they could testify.
Weinstein was initially charged with first and third degree rape in New York for attacking an unidentified woman in 2013. Defense attorneys have submitted evidence to the court that they say indicates that the alleged victim attended a movie screening at Weinstein’s request just hours after he is alleged to have raped her.
He was also charged in New York with forcing marketing executive Lucia Evans to perform oral sex on him during a meeting in 2004. That charge was dismissed in the fall of 2018, after prosecutors discovered that a lead NYPD detective on the case, Nicholas DiGaudio, failed to inform the DA's office of a witness who cast doubt on Evans’ account. Evans’ name was withdrawn as a potential prosecution witness, but not before her attorney accused Manhattan prosecutors of mishandling the case.
Five weeks after the initial indictment, prosecutors charged Weinstein with another count of criminal sexual assault, for allegedly forcibly performing oral sex on Haleyi in 2006.
The superseding grand jury indictment was also based in part on testimony from Sciorra, who claims that Weinstein raped her in her New York apartment in the winter of 1993-94. Her testimony will be offered in support of two counts of predatory sexual assault -- charges which require that prosecutors convince a jury that Weinstein sexually assaulted more than one woman.
During the same fall week in 2018 that prosecutors dropped the sixth count against Weinstein relating to Evans’ allegation, Illuzi-Orbon notified Weinstein’s defense team that one of the two remaining primary witnesses against him had been advised by DiGaudio to delete from her phone anything that she didn’t want prosecutors to see.
A representative for the NYPD’s detectives union defends DiGuadio in a statement, saying that the woman was concerned about sharing personal information on her phone unrelated to the case with prosecutors. “A woman should not have to surrender confidential intimate information that’s immaterial to the case to defend herself against a sexual predator,” Detectives Endowment Association president Michael Palladino said in the statement, adding that “our detective was neither trying to influence nor compromise the investigation.”
DiGuadio was removed from the case. Defense attorneys filed motions seeking to dismiss all the charges, but were unsuccessful. The five counts would stand.
Around this time, two members of the four-person prosecution team resigned. Vance’s office reportedly said the resignations were unrelated to the Weinstein case.
Now, more than two years after an arrest that sparked a movement and marked a turning point in the American conversation about sexual violence against women, Weinstein will face his accusers in one of the most highly-anticipated criminal trials in recent memory.