Harvey Weinstein's attorneys want judge off rape case over texting jabs

Weinstein's attorneys sent a letter to Judge James Burke saying his comments raised questions about his impartiality.
Image: Harvey Weinstein
Harvey Weinstein leaves New York Criminal Court for the day in his sexual assault trial on Wednesday, Jan. 8, 2020.Brendan McDermid / Reuters

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By The Associated Press

Harvey Weinstein's attorneys asked the judge in his New York rape case to step aside Wednesday, a day after thejudge threatened to jail the disgraced movie mogul for texting in the courtroom.

Weinstein's attorneys sent a letter to Manhattan Supreme Court Judge James Burke saying his comments Tuesday raised questions about his impartiality. Burke hasn't 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 Weinstein off before he could answer. Weinstein's attorneys 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.

Weinstein, 67, the former studio boss behind such Oscar winners as "Pulp Fiction" and "Shakespeare in Love," has pleaded not guilty and has said any sexual activity was consensual.

In addition to Burke's recusal, Weinstein's attorneys demanded that the trial be stopped until negative publicity from the new charges dissipates. They also want more time to question potential jurors individually and asked for permission to have his jury consultant sit with them 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 attorneys wrote.

Judges seldom step aside over such requests, but Weinstein's attorneys could be also making a play to make an issue of Burke's comments and rulings for a possible appeal.

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The recusal request came during a second day of jury selection, which 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 long 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, whether 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 attorneys took aim at one of his chief critics, trying to get the prominent lawyer 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 the actress Annabella Sciorra.

Weinstein's attorneys argued that Allred shouldn't be allowed to watch trial testimony because they're considering calling her as a witness, but Burke rejected the request, saying there was too much uncertainty over whether she'd take the stand.

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 she were called as a witness, she couldn't be compelled to reveal confidential communications with clients.

Weinstein is charged in New York with raping a woman in a hotel room in 2013 and sexually assaulting a 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 accusing Weinstein of raping one woman and sexually assaulting another there on successive nights in 2013. He has not entered a plea in that case, which will be tried later.