Harvey Weinstein’s lawyers asked the judge in his New York City rape case to step aside Wednesday, a day 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 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 answer. Weinstein’s lawyers said in their letter Wednesday that the film producer, who’s been seen clutching an iPhone, was using it 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.
The day’s court action was expected to be a partial repeat from the first day of jury selection on 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 only on evidence heard in court.
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, Mimi 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.
Weinstein is charged in New York with raping a woman in a hotel room in 2013 and sexually assaulting Haleyi woman in 2006. If convicted, he could be sentenced to life in prison.
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.
The 67-year-old former studio boss behind such Oscar winners as “Pulp Fiction” and “Shakespeare in Love” has said any sexual activity was consensual.
Weinstein’s lawyers unsuccessfully tried to delay jury selection Tuesday in light of the Los Angeles case, asking for a “cooling-off period” to allow the publicity to subside. Judge James Burke expressed confidence that the jurors would know that Weinstein is presumed innocent until proven guilty, and he pressed on.
During Tuesday’s court session, 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.
By the end of the day, just 36 potential jurors out of an initial 120 remained. New pools of prospective jurors will be summoned to court each morning in the coming days. A second round of jury selection will take place next week, when potential jurors who survived a first round of cuts come back to be questioned further.
Jurors were also told the trial will last about six weeks, once testimony begins.