Harvey Weinstein Trial: Judge Denies Gag Order Request During Brief Opening Day

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Harvey Weinstein walks to the courtroom in New York City criminal court on January 6, 2020

Judge James M. Burke urged Weinstein’s defense team to abstain from commenting on witnesses in public after attorney Donna Rotunno criticized actress Annabella Sciorra during a CNN interview.

On Monday morning, during a first-day hearing in the criminal trial of Harvey Weinstein, New York County Supreme Court Justice James M. Burke announced several key decisions that will have important ramifications for the way the case is prosecuted and defended over the next two months.

The judge denied the prosecution’s request for a broad gag order, after Manhattan Assistant District Attorney Joan  Illuzzi-Orbon argued that Weinstein lead attorney Donna Rotunno made “degrading and humiliating” remarks about a prosecution witness and had quoted “sealed discovery” in public media appearances. She was referring to an interview Rotunno conducted on Saturday with CNN anchor Michael Smerconish, during which she said that actress and expected witness Annabella Sciorra — who has accused Weinstein of sexually assaulting her in the early 1990s — “has spent an entire life acting for a living."

The judge initially seemed unfamiliar with Rotunno’s comments, asking her: “What did you do, Ms. Rotunno?” The Weinstein attorney denied that she did anything wrong, claiming that she was only stating a fact when discussing Sciorra’s acting career. “I have not degraded anyone,” Rotunno said. “Judge, I will not do anything that is inappropriate or unprofessional.”

While denying a full ban on discussing the case in public, the judge told Weinstein’s team to refrain from disparaging or discussing any of the witnesses in public. “Leave the witnesses alone,” he said. “Don’t talk about them in any capacity. Just excise the witnesses from your communications.”

The jury selection process is expected to last two weeks. On Monday morning, the judge said of Rotunno’s comments about Sciorra, “It’s going to be hard enough to get a fair and impartial jury. None of this will help obtain that goal.” (He said he will release the questionnaire given to jurors to the press on either on Monday or Tuesday.)

Although the "pre-selection process" will commence on Tuesday, the judge said that what he called “real jury selection” will begin on Jan. 14, at which time a small selection of the prospective jurors will be asked to bring in their completed questionnaires.

As for the criteria for prospective jurors, he said they must be “fair and impartial and must abide by the six-to-eight week schedule for this jury, which is a lot to ask from the various panels of 110 and 120 that will be called in.”

Illuzzi-Orbon asked the judge to require Weinstein to remain in New York during the trial, a request that Weinstein attorney Damon Cheronis seemed to agree to before the former film producer spoke up and asked about traveling to Connecticut, where he lives. The judge said he would support an arrangement in which Weinstein is allowed to travel to Connecticut on weekends, provided that his bail bondsman allows it.

On another issue, Illuzzi-Orbon demanded that the defense team “stipulate” about the role of a Black Cube intelligence agent in potentially influencing a witness. “There is an issue with the presence of Black Cube,” she said, arguing that the agent — identified as former Guardian journalist Seth Freedman by the defense — contacted a witness to determine what she would say about Weinstein at trial. Were the defense to deny the arrangement, the prosecutor said she would call Weinstein attorney David Boies to clarify and confirm Freedman’s role for the agency. (Boies’ law firm, Boies Schiller Flexner, contracted Black Cube on behalf of Weinstein, an arrangement that was documented extensively by journalist Ronan Farrow.)

Weinstein’s team complained broadly about the amount of discovery material they have received from the State. Cheronis said that 90 percent of the witness medical records they have been given are redacted, including emails regarding a visit a witness made to a life coach that occurred during her relationship with Weinstein. "We think there’s discoverable material in the redactions and we are requesting that," Cheronis said.

Illuzzi-Orbon said the state has complied with all applicable discovery rules, and blasted the defense for asking to see five personal cell phones that were turned over by one of the witnesses (who has not been publicly identified). "We are as compliant as humanly possibly, in the new statute or the old statute, and are able to document that," she said.

Explaining why the state does not support turning over interview notes, including with women who have accused Weinstein of misconduct, the prosecutor said: "That is not something that we are just going to provide wholesale to the person who is the predator in this court room." (Later in the hearing, Rotunno protested her characterization of Weinstein as a "predator.")

The judge also made a “conditional ruling,” telling the prosecution that they should not expect to be able to call former New York Police Department detective Nicholas DiGaudio as a witness. But, he added, “which is not say that they cannot religiously cross-examine witnesses about their interactions with him.” If the detective is mentioned in a capacity that would require his appearance, the judge suggested he would allow it despite his initial ruling.

At another point in the hearing, the judge encouraged Weinstein's team to cut down from three lawyers to two when meeting with jurors. "That seems like a bad idea," he said. "Why don’t you narrow it down to two? The idea is not to scare the jurors by having so many people stare at them in conference when they’re saying that their issue is."

As a matter of transparency and disclosure, Illuzzi-Orbon announced that the state has paid for the travel expenses and meal costs of visiting witnesses. An opinion was also given to a witness about an "immigration issue," the attorney said.