NEW YORK, NY – Harvey Weinstein's lawyers asked the judge in his New York City rape case to step aside Wednesday after he threatened to jail the disgraced movie mogul for texting in the courtroom.
Weinstein’s lawyers sent a letter to Judge James Burke saying his comments Tuesday were “prejudicial and inflammatory” and raised questions about his impartiality. Burke has not ruled on the request.
Burke admonished Weinstein as jury selection was getting underway, asking: “Is this really the way you want to end up in jail for the rest of your life, by texting in violation of an order? Is it?”
Burke cut off Weinstein before he could respond. Weinstein’s lawyers said the film producer, who has been seen clutching an iPhone, was using his cell phone before court was in session.
The defense further argued that Burke has failed to adequately safeguard Weinstein’s right to a fair and impartial jury, in part by rejecting a request to halt jury selection for a “cooling off” period after prosecutors in Los Angeles filed new sex crimes charges against him on Monday.
In addition to Burke's recusal, they demanded the trial be stopped until negative publicity from the new charges dissipates. Weinstein's lawyers also want more time for individual questioning of potential jurors and asked for permission to have his jury consultant sit with his lawyers during such questioning.
“Faced with extreme and unfairly prejudicial negative publicity both pre-trial and now during jury selection, (Burke) has refused the defendant’s requests for additional necessary procedural safeguards,” Weinstein’s lawyers wrote.
Judges seldom step aside from cases over such requests, but Weinstein’s lawyers could be also making a play to make an issue of Burke's comments and rulings for a possible appeal.
The recusal request came during a second day of jury selection that ended with 30 people invited back next week for additional questioning. In all, 66 prospective jurors have advanced to the next stage in what is expected to be a lengthy selection process.
Weinstein is charged in New York with raping a woman in a Manhattan hotel room in 2013 and sexually assaulting another woman, Mimi Haleyi, in 2006. If convicted, he could be sentenced to life in prison. The 67-year-old ex-studio boss has pleaded not guilty and maintains that any sexual activity was consensual.
As his New York trial was getting underway Monday, Los Angeles prosecutors announced new charges in a separate case against Weinstein.
Those charges accuse Weinstein of raping one woman and sexually assaulting another woman there on back-to-back nights in 2013. He has not entered a plea in that case, which will be tried later.
Wednesday's court action was mostly a repeat of Tuesday, when the first group of prospective jurors were given questionnaires asking, among other things, if they could ignore media coverage and decide the case based on evidence heard in court. They were also told testimony will last about six weeks.
On Tuesday, potential jurors were introduced as a group to Weinstein and were read a list of names that could come up at trial, including actresses Salma Hayek, Charlize Theron and Rosie Perez.
About 120 prospective jurors are being summoned to court each day.
As Wednesday's group was assembling, Weinstein’s lawyers took aim at one of his chief critics, trying to get prominent attorney Gloria Allred barred from the courtroom for the trial.
Allred represents one of the accusers in the criminal case, Haleyi, and two other women who are expected to testify, including actress Annabella Sciorra.
Weinstein’s lawyers argued Allred shouldn’t be allowed to watch trial testimony because they’re considering calling her as a witness, but Judge James Burke rejected the request, saying there was too much uncertainty over whether she’d take the stand to remove her.
Allred later accused the defense of trying to interfere with her ability to represent the women and said having her testify might not do them much good. She told reporters outside the courthouse that if called as a witness, she couldn’t be compelled to reveal any confidential communications with clients.
The Associated Press generally does not name people who say they are victims of sexual assault, but Haleyi and Sciorra have made their stories public and have given permission to do so.