The judge in Harvey Weinstein’s New York rape trial won’t be stepping down from the case today nor putting the brakes on it, despite a harsh January 8 request by the disgraced producer’s defense team.
State Supreme Court Judge James Burke ripped through the defense’s five-point motion calmly but like a sharp knife finally unsheathed. “There is nothing inflammatory or biased for scolding a recalcitrant defendant for not complying with the court,” he said, unsurprisingly. “I have in no way prejudged your client and gone to great lengths to ensure your client the fair trial he deserves.”
Thursday is Day 4 of the criminal trial that could see Weinstein behind bars for the rest of his life if found guilty of five felony counts. “
Preceded by almost half an hour at the bench where the judge was writing and keeping the court on tenterhooks, Burke’s decision comes less than 24 hours after Weinstein’s co-counsel Arthur Aidala brandished in court a motion to have the judge recuse himself for threatening to throw the producer in jail for repeated use of his cell phone in court. “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?” Burke barked at Weinstein on January 7 in front of the defense team, prosecutors from the Manhattan District Attorney and others.
Eventually, Burke — who has faced daily attempts this week by the Donna Rotunno-led defense to derail or delay the high-profile matter — decided to let Weinstein off with a one-more-chance warning. But he unintentionally offered another opportunity for the producer’s lawyers in what obviously a tactic to set the stage for an appeal.
“Faced with extreme and unfairly prejudicial negative publicity both pre-trial and now during jury selection, this Court has refused the defendant’s requests for additional necessary procedural safeguards,” Aidala’s correspondence to Burke on Wednesday declared in language that has become almost commonplace from Weinstein’s various defense teams over the nearly two years since he was arrested in NYC on the sexual assault charges.
Also, having sought Wednesday to have the trial stopped or at least the paused — due in no small part to media scrutiny and a slew of charges laid by the L.A. County District Attorney on January 6, the first day of the trial — the defense is methodically laying the foundation on various levels for an eventual post-verdict appeal to claim that their client did not receive a fair stint in court if Weinstein is found guilty.
“All I meant to do was scare him enough to convince him to discontinue using his phone,” Burke continued this morning, noting that he had used “hyperbolic language” intentionally. “I certainly never actually meant I was going to put your client in jail for life, nor did I mean that I had pre-judged whether he is guilty or not guilty or innocent of the charges.”
The lead prosecutor had weighed in a little earlier.
“The people obviously object because it is extremely important that we are the arbitrators of justice,” Manhattan Deputy District Attorney Joan Illuzzi-Orbon told the court of the defense’s motion before the judge rendered his decision Thursday. “You have ruled for the people, you have ruled against the people, as you have for the defense and nothing in your rulings have reveled any biases on your part.
“They can’t have it both ways, they can’t bemoan the presence of the press and use the press,” she added of the defense and its claims that the widespread coverage of Weinstein makes it nearly impossible for him to get a fair trial, especially in NYC.
“The issue is what the court said in its admonishment,” Rotunno said in response to the D.A.’s statements on their motion for recusal and other demands and asserting the defense’s belief that Burke had ungloved his hand on Weinstein’s guilt before the jury had even been seated. “I think we’ve all seen that jurors are hesitant and unsure if they can be fair,” noted the defense lawyer in additionally seeking more time for her team to question prospective jurors as they enter court in groups of 120 or more.
As in the past, the defense came up mainly short in its latest motion. However, Burke agreed he would give Weinstein’s attorneys “a little more time” in the questioning of jurors in the pre-screening and actual selection process when necessary. “Lucky you!” he stated. “I don’t have any problem being a little bit flexible, but I don’t want to deceive you into thinking you have limitless time.”
Deputy D.A. Illuzzi-Orbon and her colleague and fellow Deputy D.A. Meghan Hast strode into the courtroom at 9:07 AM ET — a few minutes later than on previous days — with a “Hello everybody” to media and court officials. Soon after sitting at the table at the front of the courtroom, the duo engaged in what seemed to be a rather animated conversation before handing off some documents to an associate. Following Rotunno and fellow defense attorney Damon Cheronis, Weinstein and his walker came into court a few minutes later with Aidala not far behind.
As Weinstein conferred with representatives in the front row of the mainly media-attended courtroom, Cheronis went over to Illuzzi-Orbon for a conversation that saw both lawyers sizing each other up with arms crossed across their respective chests. While a cleaner came into the court to wipe up an earlier spill on the tiled floor caused by one of the sketch artists, a further discussion between Cheronis and Hast didn’t seem to be much cheerier than the one with Illuzzi-Orbon.
With a rather stern look on his face, Burke came into court at around 9:41 AM ET, almost 20 minutes later than has been his habit so far these opening days.
Having ended proceedings at 1 PM ET Wednesday and now put this recuse matter behind him, Burke is expected to have another half-day Thursday continuing the “laborious” — as the judicial official himself termed it on the opening day of the trial — process of finding an impartial jury for the spotlighted trial. Of the 2,000-plus jury summonses sent out for what is expected to be eight-week trial, about 250 potential jurors already have gone through pre-screening this week. About 90 have been released from possible consideration after proclaiming that they simply could not be impartial with what they know about Weinstein, the case or individuals connected to the case.
Set to be cut short today due to a medical matter that Illuzzi-Orbon has to deal with, jury selection will continue Friday. Next week, as the judge and lawyer get down to a final pool from which to pick the jurors, the process will become a more streamlined process if all goes to plan. With opening arguments currently set for January 21, Weinstein’s rape trial is blueprinted to go run into mid-March, for now.
First arrested in late May 2018, Weinstein is facing multiple counts of predatory sexual assault, one count of criminal sexual act in the first degree and one count each of first-degree rape and third-degree rape. Subject to travel restrictions reinforced last August 7, the 67-year-old producer is now out on a $5 million bail after first entering a not guilty plea on July 9 last year. Weinstein entered a plea of not guilty again on August 26 last year when a new indictment was added.
Accused by Ashley Judd in a now temporarily halted case, failing to get a sex-trafficking class action tossed out, and a more recent lawsuit from a woman who says he abused her when she was 16 in 2002, Weinstein is also facing allegations from close to 100 other women that he sexually assaulted or sexually harassed them. At present, a number of those women are still reluctantly participating in the potential $25 million settlement that is part of an overall $45 million deal on the table. In addition to the multiple sexual assault charges that the LA, D.A. announced earlier this week and the NYC rape trial itself, Weinstein is also still currently under investigation by federal prosecutors as well as other probes by the Manhattan D.A.’s office, the NYPD, the LAPD and more globally.