In their opening statements at Harvey Weinstein’s criminal rape trial on Wednesday, Weinstein’s defense team will be able to refer to what they say are “dozens and dozens of loving” emails that women sent to him after he allegedly assaulted them.
New York State Supreme Court Judge James Burke ruled on Tuesday that the reference to the messages will be allowed as part of defense plans for an opening power point presentation. But his attorneys will not be allowed to display the actual emails at that point in the trial, Burke said.
Burke said that he will allow the reference to the emails because it has to do with “defendants theory of the case that the sex was consensual.”
The hearing on Tuesday offered a glimpse of how Weinstein’s defense team and prosecutors plan to approach the case.
Burke also made a number of other rulings on what evidence will be admitted and what will not. He ruled that the prosecution could use an email that pertained to Weinstein’s interaction with the crisis public relations firm Sitrick & Co. in 2017, rejecting defense arguments that the communications are privileged because they are related to Weinstein’s legal representation.
The use of accusers’ emails are likely to prove a legal and cultural flashpoint later in the trial, particularly if defense attorneys are allowed to challenge the witnesses with the messages. Prosecutors had objected to their inclusion in the power point presentation, arguing that some may ultimately be ruled as inadmissible.
“You cannot say right now what statements are going to be admissible and what statements are not going to be admissible,” prosecutor Joan Illuzzi.
But Damon Cheronis, one of Weinstein’s attorneys, said that the emails were a part of their defense and it was necessary to lay out to the jury the type of evidence jurors can expect to see. “What we will counter with are their own words,” Cheronis said, referring to Weinstein’s accusers.
“These are written statements to Harvey Weinstein from complaining witnesses, and I can give you example after example,” Cheronis said, adding that it “will be up to the witness to explain why they said something different.”
He said that “witnesses who claim sexual assault with him also bragged about being involved in sexual relations with him.”
He suggested that they would include an instance where one of his alleged victims reached out “to give him her own phone number” and another where a witness “wanted to introduce him to her mother.”
Weinstein, 67, faces five charges of sexual assault stemming from allegations by two women related to incidents in 2006 and 2013. He has insisted that all the sexual encounters were consensual. If convicted, he could face life in prison.
A jury of seven men and five women were seated on Friday. Still unclear is whether the jury will include one woman who drew defense objections last week. The woman is the author of a novel with a plot that has to do with “predatory older men.”
Last week, Cheronis told the judge that the juror was “exactly the kind of person who should not be fit to serve on this jury.” But the judge disagreed and said that she accepted her answers that she could be impartial. Weinstein’s defense team had already used all of its 20 peremptory challenges during the jury selection process.
At Tuesday’s hearing, Illuzzi raised an issue with Burke, contending that the defense “went out and called a seated juror a liar in public.” But the judge instead addressed the issue obliquely. Burke did not announce any kind of a gag order, saying, “Let’s not discuss that any further.” He looked over at the defense and made sure that they “know what I am talking about.”
Leaving court, Weinstein was asked by a reporter how he was feeling about the opening arguments on Wednesday. “Talk to Donna,” he said, referring to one of his lawyers, Donna Rotunno. Another reporter shouted, “Is your defense going to argue that women bragged about sexual encounters with you?” He did not answer.
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