Harvey Weinstein’s defense team asked the trial judge on Wednesday to recuse himself from the case, arguing that he has already decided that Weinstein is guilty.
In a letter to the court, the defense accused Justice James Burke of making “prejudicial and inflammatory comments” when directing Weinstein not to use his cell phone in the courtroom on Tuesday. They also took issue with a series of rulings against the defense, including the denial of the defense’s request on Tuesday to adjourn the case temporarily.
“It has become clear to Mr. Weinstein that the Court has already violated its own mandate to the potential jurors by deciding that Mr. Weinstein is guilty before it has heard any of the trial evidence,” wrote Weinstein attorney Arthur Aidala.
Burke is unlikely to step aside, but the request indicates that the defense is aggressively setting up potential issues for appeal.
Moments after court was adjourned, Aidala told reporters he doubts the motion will succeed, but said he hopes the judge will grant the defense more time to question potential jurors.
“Why are we only getting 45 seconds to talk to each juror?” Aidala told a scrum of reporters. “His life is on the line. What’s the rush?”
The defense also complained that Weinstein’s jury consultant has not been allowed to sit at the counsel table during jury selection.
Burke admonished Weinstein on Tuesday morning for defying a previous order not to use his phone in the courtroom, and threatened to have him jailed.
“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 asked. “Is it?”
The recusal request came on the second day of jury selection in the trial. As with the first day, it proved difficult to find people to serve. About 120 potential jurors were brought in, and after questioning only about 30 people were left.
More than 45 jurors — mostly women — told Burke they could not be fair, including two women who said they had been assaulted and one who said that a close friend had an “encounter” with Weinstein. Two other jurors said they could not be objective because they had read “Catch and Kill,” the Ronan Farrow book about Weinstein.
On Wednesday morning, Burke denied another defense request to bar attorney Gloria Allred from the courtroom.
Allred is representing accuser Mimi Haleyi, one of the two women at the center of the rape trial, who has alleged Weinstein forcibly sexually assaulted her in 2006. Allred is on a list of people who are relevant to the case and could be called to testify.
“I am not trying to attack Ms. Allred. I am trying to protect Mr. Weinstein’s right to a fair trial,” said Weinstein defense attorney Damon Cheronis. “Like any other witness, Ms. Allred should not be allowed to sit in court, watch that testimony and share that testimony with her clients.”
Prosecutor Joan Illuzzi shot back, arguing that if Allred is removed from the court, so should all of the reporters sitting in the courtroom.
“They believe that a lawyer in this courtroom would do something untoward,” Illuzzi said. “In that case, let’s exclude every single person in this courtroom because all of these reporters are going to be writing about the case and that information will be available to witnesses.”
Burke allowed Allred to remain, saying it was unlikely that she would be called to testify.
“Even if Ms. Allred was called as an impeachment witness, there would be no actual harm for her having observed the trial,” he said. “In fact, it might even advance a certain degree of efficiency.”
Afterward, Allred showed up outside of the courthouse to give an impromptu press conference.
“Harvey Weinstein’s defense appeared to want to interfere with my ability to represent my three clients who will be witnesses in his trial by asking the court to exclude me from the courtroom on the basis that they intend to call me as a witness in this criminal trial,” she said. “I am pleased that the court denied their request to exclude me from the courtroom.”
Allred said that if called to testify, she would protect her client’s right to attorney-client privilege.
“I will consider my options regarding the defense wanting to call me as an impeachment witness,” she said. “If called as a witness, I intended to fully protect my client’s right to confidentially communicate with me, which is protecting by the attorney client privilege of confidentiality. In addition, anything that is not a confidential communication is protected by work product. In short, I cannot be compelled to answer anything that is a confidential communication with my client or that is work product.”