Harvey Weinstein Says His Judge Is Biased. His Judge Disagrees.

Harvey Weinstein Says His Judge Is Biased. His Judge Disagrees.


Harvey Weinstein’s request that the judge presiding over his rape trial in Manhattan step aside was rejected on Thursday, ending an early salvo in the film producer’s attempts to mount an aggressive defense and cast doubt on the high-profile proceedings.

Mr. Weinstein’s lawyers had accused the judge, Justice James M. Burke, of being biased when he suggested earlier this week that Mr. Weinstein might end up in prison for the rest of his life for repeatedly violating an order not to use his cellphone in the courtroom.

But Justice Burke on Thursday flatly denied Mr. Weinstein’s motion asking him to recuse himself from the trial, saying he was merely using “hyperbolic language.”

On Tuesday, court officers noticed Mr. Weinstein using at least one cellphone in the courtroom, in violation of a standing order by Justice Burke.

It was not the first time that the movie mogul had ignored the ban on phones in court and Justice Burke, visibly annoyed, admonished him from the bench. “Is this really the way that you want to end up in jail for the rest of your life,” Justice Burke asked, “by texting and violating a court order?”

Mr. Weinstein’s lawyers quickly seized on what they described as evidence of bias and demanded on Wednesday that the judge withdraw from the case. In a hastily written filing, the lawyers argued that Justice Burke had apparently prejudged the trial’s outcome, assuming that Mr. Weinstein would be convicted and thus would be eligible for life in prison.

In court on Thursday, Justice Burke roundly rejected the request, noting there was nothing “prejudicial or inflammatory” for scolding a “recalcitrant” defendant for repeatedly ignoring his own order.

“Certainly, I never meant I was going to put your client in jail for life,” he told Mr. Weinstein’s lawyers. The judge quickly added: “All I meant to do was scare him enough for him to discontinue using his phone.”

The legal tiff, which escalated rapidly from a texting incident into an attempt to remove a judge from a major case taking place in his own courtroom, suggests just how high tempers are running at the trial and gave a preview of the tough, leave-nothing-on-the-table tactics that Mr. Weinstein’s team of lawyers may continue to use during the proceedings.

Mr. Weinstein cannot appeal Justice Burke’s decision to not recuse himself at the moment, but defense lawyers could contest the ruling in a post-trial appeal.

The trial began on Monday, but opening statements are not expected for at least another week. This week, the defendant’s lawyers and prosecutors from the Manhattan district attorney’s office have been weeding through a large pool of potential jurors, who have been called to the 15th-floor courtroom 120 people at a time.

Jury selection was still in what Justice Burke referred to as the “pre-screening” phase on Thursday. Panelists were being asked basic questions about scheduling conflicts and whether they believed they could be impartial despite the enormous publicity surrounding the case. More extensive questioning is likely to begin next week.

Mr. Weinstein is charged with raping one woman in a Midtown Manhattan hotel in 2013 and forcing oral sex on a second woman in his TriBeCa apartment in 2006. The indictment includes counts of rape, criminal sexual act and predatory sexual assault. He faces the possibility of life imprisonment on the latter charge.

Four other women are expected to testify about their allegations that Mr. Weinstein sexually assaulted them. Though those incidents are too old under the state statute of limitations to be the basis of additional criminal charges, prosecutors have won permission to use them to help establish what they believe is a pattern of predatory behavior.

Jury selection in Mr. Weinstein’s trial is likely to be of paramount importance, given that the facts are in dispute and are highly susceptible to interpretation. On Monday, the difficult task of picking the jury was further complicated when prosecutors in Los Angeles announced new charges against Mr. Weinstein — a move that could easily taint the pool of potential panelists.

In their motion to Justice Burke, the defense asked for a “cooling-off period” following the California charges. The judge’s remarks on Tuesday made jury selection even more challenging, said Mark Bederow, a New York criminal defense lawyer.

“The defense perceives the comment as a fait accompli — that he will get a life sentence and he’s going to be convicted,” Mr. Bederow said. “What they’re going to be concerned about are the news articles that report a life sentence coming from the words of a judge. It’s not surprising they would seek a cooling-off period.”

Jan Ransom contributed reporting.



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