NEW YORK — (AP) — Harvey Weinstein 's #MeToo retrial next month will largely be an abridged version of the original, with one big addition: a charge based on an allegation from a woman who was not a part of the first case.
But at a key pretrial hearing Wednesday, the disgraced movie mogul’s lawyers cautioned that because Weinstein’s 2020 rape and sexual assault conviction was overturned, the past isn't prologue — it's almost entirely irrelevant.
“We can take that transcript and all the judge’s rulings and throw them in the garbage," Weinstein’s lawyer, Arthur Aidala, argued. “That trial was declared illegal by the highest court in this state."
New York’s Court of Appeals threw out Weinstein’s conviction last year, setting the stage for a retrial in state court in Manhattan. In September, another charge was added based on allegations from a third accuser. The trial will start April 15 and prosecutors say it could take about five weeks.
How the retrial will play out began to take shape Wednesday as Judge Curtis Farber ruled on a number of outstanding issues, including expert testimony and the language used to describe the accusers.
Farber granted a prosecution request to call a psychologist, Dawn Hughes, as an expert witness on the psychological and traumatic effects of rape and sexual assault. Hughes previously testified for actor Amber Heard at Johnny Depp’s libel 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 defense request to preclude the term “survivor” from being used to describe Weinstein’s accusers. He told prosecutors to instruct any police officers who testify to refer to the women as “complaining witnesses" instead.
While Weinstein’s convictions from the first trial were thrown out, his acquittals on the most serious charges — two counts of predatory sexual assault and first-degree, or forcible, rape — still stand.
Given that, Farber ordered prosecutors to instruct one of the accusers testifying at the retrial not to used the word “force” when describing her alleged assault.
The Manhattan district attorney's office had wanted to exclude any mention of Weinstein’s acquittals and vacated conviction, but Farber said he could be obligated to clue them in depending on how the accuser testifies.
“Does she have to use the word force? She can describe what happened and let the jury draw its own conclusions?” the judge asked. “I am not asking her to change her testimony from the first trial. I am asking her to refrain from using the word force."
Other decisions were made behind closed doors as Farber met with the prosecution and defense for more than an hour in his chambers to discuss matters still under seal.
They included a prosecution request that two of the three accusers in the case be allowed to testify about other alleged encounters with Weinstein. They also discussed evidence of the accusers' sexual history, which prosecutors say should be barred under New York's Rape Shield Law.
Weinstein, 72, was in court for Wednesday’s proceedings, arriving from jail in a wheelchair and suit and holding a stack of documents. Before the public portion of his hearing began, the ex-studio boss watched as Farber spent a few minutes resolving another matter that had been delayed by their closed-door discussions.
At his last court appearance in January, Weinstein had implored Farber to start the retrial sooner.
He told the judge “I don’t know how much longer I can hold on” with cancer, heart issues and harsh conditions at New York City’s Rikers Island jail complex, where he is locked up. Farber said he may hold jury selection a few days sooner if a murder trial he's overseeing wraps up 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 actor in 2013. The additional charge, filed last September, alleges he forced oral sex on a different woman at a Manhattan hotel in 2006.
Prosecutors said in court papers that the woman, who has not been identified publicly, came forward to them just days before the start of Weinstein’s first trial but was not part of that case. They said they did not pursue the women’s allegations after Weinstein was convicted and sentenced to 23 years in prison, but they revisited them and secured a new indictment after his conviction was thrown out.
Farber ruled in October to combine the new indictment and existing charges into one trial.
Weinstein’s lawyers contend that prosecutors prejudiced him by waiting nearly five years to bring the additional charge, suggesting they had elected not to include the allegation in his first trial so they could use it later if his conviction were reversed.
Weinstein has denied that he raped or sexually assaulted anyone.
In vacating Weinstein's conviction, the Court of Appeals ruled that the trial judge, James M. Burke, unfairly allowed testimony against him based on allegations from other women that were not part of the case. Burke is no longer on the bench and such testimony won't be part of the retrial.
Weinstein was convicted in Los Angeles in 2022 of another rape. His 16-year prison sentence in that case still stands, but his lawyers appealed in June, arguing he did not get a fair trial.
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