The eleventh-hour request was submitted to the First Department appeals court even as nearly 200 potential jurors were scheduled to appear in court Thursday to answer detailed questions as a part of what has become an exhaustive process of jury selection. Oral arguments on the appellate motion were expected to be heard Thursday morning.
The state judge hearing Weinstein’s rape case, James M. Burke, denied an initial attempt to move the trial out of Manhattan last year. But in a motion, Weinstein’s legal team renewed its request to relocate the trial, taking its arguments to the appeals court in Manhattan. They said that a “vast majority” of prospective jurors in the case had been “tainted” by “a deluge of pretrial publicity.”
The lawyers noted that reporters and camera crews “fill the entrance to the courthouse and line the hallways” on a daily basis, and that “celebrity press conferences denouncing” film producer Weinstein and “protests and demonstrations” had taken place on the street outside. They also claimed that “an alarmingly high percentage” of prospective jurors called to court had already “shown an unwillingness to give a fair and impartial consideration to the case.”
The appeals court, Weinstein’s lawyers wrote, had “an obligation to step in at this point and halt the media frenzy that has plagued” the proceeding.
A spokesman for the Manhattan district attorney’s office, which is prosecuting Weinstein, declined to comment on the appeal motion.
The last-minute request was yet another topsy-turvy turn in a week-old trial that had already been disrupted by a flash mob banging drums in protest of Weinstein and the appearance of supermodel Gigi Hadid, who was called as a potential juror and caused a stir among the paparazzi gathered on the street outside the courthouse.
It remains unclear how — or even if — the appellate motion will affect the start of the trial. Opening arguments are scheduled to begin on Jan. 22.
After his arrest in May 2018, Weinstein was charged with raping one woman in a Midtown Manhattan hotel in 2013 and forcing oral sex on a second 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 top charge.
Four other women are expected to testify about their allegations that 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 is expected to continue Thursday in Burke’s courtroom in state Supreme Court in Manhattan even as the appeals court hears arguments in a separate courthouse, setting up a strange and unusual split-screen process.
Then again, the Weinstein trial has been strange and unusual from its outset; one potential juror told Burke this week that he lived near the Tribeca Film Center, one of Weinstein’s former haunts, and on several occasions had seen the former movie producer “screaming at someone” on his phone.
Last week, another potential juror posted a message on Twitter asking if anyone could help him leverage his jury service to promote his new novel — "a witty black comedy,” he wrote.
Citing some of these distractions, Weinstein’s lawyers asked Burke last week to conduct the question-and-answer section of the jury-picking process in secret without reporters present. The judge immediately denied the request, saying, “That’s against the law.”
So far, between 600 and 700 people have been called to Burke's courtroom for a screening process designed to gauge, in the most basic fashion, their ability to serve as fair and impartial jurors.
About a third of those potential jurors were immediately excused after telling the court they could not be fair. One woman, for instance, said she had a friend who had “an encounter” with the producer.
Of the remainder, 142 have filled out detailed questionnaires. Weinstein’s lawyers complained to the appeals court that 130 of the questionnaires suggested that the jurors who filled them out had “already heard about the case before ever entering the courtroom.”
The appeals motion dwelt at length on what the lawyers called, in the title of one section of their document, “The Unprecedented Media Spectacle That Is The Weinstein Trial.”
“Mr. Weinstein faces a daily gauntlet of reporters, gawkers and negative backlash as he makes his way to court each day,” the lawyers wrote, adding that some among the news media “arrive in their various perches as early as 5 a.m.”
A fresh wave of public attention, the lawyers said, swept over the proceedings on Jan. 6, the first day of the trial in New York, when Weinstein was charged in a separate case in Los Angeles with forcible rape, among other crimes.
“If jury selection is allowed to proceed in New York County, we have no doubt that 12 living breathing human beings will be seated in the jury box at the commencement of the trial,” Weinstein’s lawyers said in the motion. “But that will not constitute the fair and impartial jury to which Mr. Weinstein is constitutionally entitled. It will just be the 12 people we could find under these unreasonable circumstances."
The motion filed Wednesday was not the first time Weinstein’s team had sought to move the trial to another city. In October, the same appellate court rejected a similar motion, without explaining why. Among the arguments Weinstein’s lawyers made at that time was that the producer’s name had been mentioned online by Page Six, The New York Post’s irreverent gossip column, more than 11,000 times.
This article originally appeared in The New York Times .