NEW YORK — Harvey Weinstein’s upcoming #MeToo retrial will be a condensed version of the original, but with a significant addition: a charge stemming from an allegation made by a woman who wasn’t involved in the initial case.
However, during a crucial pretrial hearing on Wednesday, lawyers for the disgraced film producer stressed that, because Weinstein’s 2020 conviction for rape and sexual assault was overturned, the previous trial holds little relevance.
“We can disregard the transcript and the judge’s decisions from the first trial,” argued Weinstein’s attorney, Arthur Aidala. “The highest court in New York State deemed that trial unlawful.”
The New York Court of Appeals reversed Weinstein’s conviction last year, leading to the upcoming retrial in Manhattan. In September, a new charge was added based on claims from a third accuser. The trial is scheduled to begin on April 15, and prosecutors estimate it will last approximately five weeks.
The framework for the retrial began to materialize on Wednesday as Judge Curtis Farber issued rulings on several pending matters, including expert testimony and the terminology used to describe the accusers.
What issues were before the judge?
Farber approved the prosecution’s request to present psychologist Dawn Hughes as an expert witness on the psychological and traumatic impacts of rape and sexual assault. Hughes previously testified for Amber Heard in Johnny Depp’s defamation trial against Heard in 2022, and as a prosecution witness in singer R. Kelly’s federal sex trafficking trial in Brooklyn in 2021.
The judge also granted a request from the defense to prevent the use of the term “survivor” when referring to Weinstein’s accusers. He instructed prosecutors to tell any testifying police officers to instead call the women “complaining witnesses.”
Although Weinstein’s convictions from the first trial were overturned, his acquittals on the most serious charges – two counts of predatory sexual assault and first-degree rape involving force – remain valid.
Therefore, Farber directed prosecutors to advise one of the accusers testifying in the retrial to avoid using the word “force” when describing her alleged assault.
The Manhattan District Attorney’s office had sought to exclude any mention of Weinstein’s acquittals and the vacated conviction, but Farber stated that he might be obligated to inform the jury about them depending on the accuser’s testimony.
“Does she need to use the word force? Can she describe what occurred and allow the jury to reach its own conclusions?” the judge inquired. “I’m not asking her to alter her testimony from the first trial; I’m asking her to refrain from using the word force.”
Other decisions were made privately, as Farber met with the prosecution and defense in his chambers for over an hour to discuss confidential matters.
These included a prosecution request to allow two of the three accusers in the case to testify about other alleged encounters with Weinstein. They also discussed evidence related to the accusers’ sexual history, which prosecutors argue should be inadmissible under New York’s Rape Shield Law.
Weinstein in court
Weinstein, 72, was present in court for Wednesday’s proceedings, arriving from jail in a wheelchair, wearing a suit, and carrying a stack of documents. Before the public session began, the former studio executive watched as Farber addressed another matter that had been delayed due to their closed-door discussions.
During his previous court appearance in January, Weinstein had urged Farber to expedite the start of the retrial.
He told the judge that he didn’t know “how much longer I can hold on” due to cancer, heart problems, and the difficult conditions at New York City’s Rikers Island jail, where he is incarcerated. Farber indicated that he might begin jury selection a few days earlier if a murder trial he is overseeing concludes ahead of schedule.
Weinstein is being retried on charges that he forcibly performed oral sex on a movie and TV production assistant in 2006 and raped an aspiring actress in 2013. The additional charge, filed last September, alleges that he forced oral sex on a different woman at a Manhattan hotel in 2006.
Prosecutors stated in court documents that the woman, who has not been publicly identified, came forward to them shortly before the start of Weinstein’s first trial but was not included in that case. They said they did not pursue the woman’s allegations after Weinstein was convicted and sentenced to 23 years in prison, but revisited them and obtained a new indictment after his conviction was overturned.
Farber ruled in October to combine the new indictment with the existing charges into a single trial.
Weinstein’s lawyers argue that prosecutors prejudiced him by waiting nearly five years to bring the additional charge, implying they chose not to include the allegation in his first trial so they could use it later if his conviction was reversed.
Weinstein has denied raping or sexually assaulting anyone.
In overturning Weinstein’s conviction, the Court of Appeals held that the trial judge, James M. Burke, improperly allowed testimony against him based on allegations from other women that were not part of the case. Burke is no longer a judge, and such testimony will not be included in the retrial.
Weinstein was convicted in Los Angeles in 2022 of another rape. His 16-year prison sentence in that case remains in effect, but his lawyers filed an appeal in June, arguing that he did not receive a fair trial.
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