A group of media organizations asked a New York judge on Monday to allow public access to a critical hearing in the Harvey Weinstein criminal case.
The disgraced producer is scheduled to go on trial on June 3 on five charges of rape and sexual assault involving two alleged victims. Prosecutors have filed a motion seeking to allow other women to testify about their own experiences with Weinstein, in order to buttress the two women’s claims. The defense has objected, and a hearing on the issue is set for Friday.
Justice James M. Burke has sealed the motions, and both the prosecution and the defense have requested that the hearing be closed to the public. Both sides argue that discussing the potential testimony in public, before the trial, would taint the jury pool.
In a letter to the court, Weinstein attorney Ronald Sullivan argued that if the hearing were open, “prospective jurors will be exposed to potentially irrelevant and unquestionably prejudicial information that will impede Mr. Weinstein’s ability to receive a fair trial, particularly in the sensationalized media environment surrounding these proceedings.”
Attorney Robert Balin filed a motion Monday on behalf of 14 news organizations, including the New York Times, the New Yorker, the Associated Press, and CNN. The motion seeks to unseal the filings and open Friday’s hearing to the public. Balin argues that Weinstein has already been publicly accused by more than 80 women, and that additional coverage of such allegations will have little effect.
“Simply put, Weinstein is the focal point of the #MeToo movement and the alleged ‘bad acts and uncharged crimes’ at issue here have been indelibly burned into the public consciousness already,” Balin wrote. “As such, the Parties are unable to demonstrate (as they must) that there is a substantial probability that the repetition of this widely known information in open court will have a meaningful effect on the opinions of potential jurors or otherwise prejudice Weinstein’s right to a fair trial.”
At Bill Cosby’s sexual assault trial in Pennsylvania in 2018, five women were allowed to testify to the comedian’s “prior bad acts.” The pre-trial motions on the issue were not sealed, nor was the hearing on the issue closed to the public. The prosecution’s motion to allow the testimony laid out the allegations in some detail, but did not identify the women by name.
The testimony arguably tipped the balance in favor of Cosby’s conviction. At his first trial in 2017, which ended in a hung jury, only one such witness was allowed to testify.
In the Weinstein case, the prosecution has filed sealed motions to allow testimony from “Sandoval” and “Molyneux” witnesses. In New York, the “Molyneux rule” allows prosecutors to introduce evidence of uncharged conduct if it helps establish a pattern of behavior. Under People v. Sandoval, the prosecution may introduce such testimony to undermine a defendant’s credibility, should the defendant choose to testify.
The prosecution has joined with the defense in asking that the hearing on the issue be sealed. In addition to expressing concern about the impact on the jury pool, Assistant District Attorney Joan Illuzzi-Orbon argued that if the potential witnesses are not allowed to testify, their identities should remain secret.
“Moreover, in this case, another pertinent consideration is the privacy of those potential witnesses who have been victims of sexual assault and whose identity is protected by law,” she wrote.
If the women are allowed to testify, their identities would become public at trial.
In addition to the criminal case, Weinstein faces 17 civil actions and demands for sexual misconduct in the U.S., Canada, and the United Kingdom.