The Daily - The Case Against Harvey Weinstein, Part 2

Episode Date: January 10, 2020

Note: This episode contains descriptions of sexual violence. Yesterday on “The Daily,” we heard the story of Lucia Evans, whose allegation of sexual violence against Harvey Weinstein helped launch his criminal trial in New York. After Ms. Evans was dropped from the case, questions were raised about how a man accused of sexual misconduct by more than 80 women could end up facing so few of them in court. In the second half of this series, what happened next in the case against Harvey Weinstein. Guests: Jodi Kantor and Megan Twohey, investigative reporters for The New York Times and the authors of “She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement.” For more information on today’s episode, visit nytimes.com/thedaily. Background reading:Mr. Weinstein built a network of complicity that dozens of women say kept them silent for years. Opening statements in the trial have yet to be made, as this week has focused on jury selection and clashes over the rules of decorum in court.

From The New York Times, I'm Michael Barbaro. This is The Daily. Yesterday, we heard the story of Lucia Evans, whose allegation against Harvey Weinstein helped launch the criminal trial that got underway this week in Manhattan. When prosecutors dropped her from the case, it raised questions about how a man accused of sexual misconduct by more than 80 women could end up facing so few of them in court.

Today, in Part 2, my colleagues Jodi Kantor and Megan Toohey on what happened next. It's Friday, January 10th. Jodi, when we left off, Lucia Evans' criminal charge against Harvey Weinstein had just been dropped. Where does that leave the case against Weinstein? Okay, so remember, we're now in the fall of 2018. Lucia's out. So the prospect of Harvey Weinstein being held criminally accountable seems to now hinge on just two women. One woman has a story of sexual assault.

The other woman has a story of rape. So everything in this case pretty much revolves around these two women. So who exactly are they? So one, the one with a story of sexual assault, is Mimi Halei. She was added to the case right before Lucia Evans was dropped. And what is her story? So Mimi Halei works in the entertainment industry in the early 2000s. She's pretty junior.

And she ends up meeting Harvey Weinstein at the Cannes Film Festival in France. And it's exciting. She's young. She wants opportunity. And they continue to keep in touch because she wants work. So they have a series of meetings in New York. And eventually he invites her to his home. And as far as what happens next, she actually tells the story in a press conference with Gloria Allred.

It was not long, though, before he was all over me making sexual advances. I told him no, no, no, but he insisted. And then I said, I'm on my period. There is no way this is going to happen. Please stop. He wouldn't take no for an answer and backed me into a room which was not lit, but looked like a kid's bedroom with kids' drawings on the walls. He held me down on the bed.

I tried to get him off of me and kept asking him to stop, but it was impossible. He was extremely persistent and physically overpowering. He then orally forced himself on me while I was on my period. He even pulled my tampon out. I was mortified. I was in disbelief and disgusted. I remember Harvey afterwards rolling over onto his back saying, don't you feel we're so much closer to each other now? To which I replied, no.

And Jodi, what's the story of the second accuser remaining in this case? So the second woman is anonymous. She hasn't talked to journalists as far as we know. So we've got kind of a minimal account here. But her allegation is a more complicated story. How so? Well, as soon as it becomes clear that this case is going to be part of the criminal charges, Harvey Weinstein says to his attorneys, get me my old emails, get me my old emails. And what the emails show is a kind of warm, friendly tone between these two people.

The accuser and Weinstein. Exactly. Including after the alleged attacks took place. In 2017, this is a few years after the alleged attack took place, the woman says, I love you, always do, but I hate feeling like a booty call. Smiley face emoji. Love you, always do, but I hate feeling like a booty call. Smiley face emoji.

And another one that's also from after the alleged attack, she talks about introducing Weinstein to her mother. There's a lot of evidence that this is how Harvey Weinstein operated. There are a lot of stories in which, you know, for a long time after a terrible violation, he maintained kind of friendly relationships with these women. What the women say is that they were under a lot of work pressure to do so. This was the powerful producer.

He had the ability to grant them roles, to make them producers, to give them job favors. Some of them say that they felt that their careers depended on kind of keeping up these friendly relationships with him afterwards because he was in a position to give them work. In fact, there's a text message that Weinstein's lawyers

have produced that Mimi Halei, that first accuser, sent him months after her alleged attack. The message, which comes to him, I think, through an assistant, says, Hi, just wondering if you have any news on whether Harvey will have time to see me before he leaves. X. Miriam, which is her full name. You know, as you're saying this, I'm reminded of the reporting that you and Megan have done in which an offer of career help is just central to how Harvey Weinstein lures women into these situations. That's exactly right. I mean, our finding was that the most powerful common strand of all of these allegations

is that they involve the use of work as a form of coercion. I'm a powerful guy. I can make this happen for you. I have a film role I can give you. Come look at a script. That's the thing that so many of these stories have in common. But that's what also makes some of these stories complicated, right? One of the many reasons why so many of those cases are not the basis for criminal charges is because there's a kind of veneer of consensuality to them. And the risk for the

prosecution is that these messages that were exchanged between Weinstein and his accusers, particularly the kind of I love you between him and the anonymous accuser, they could create that same sort of veneer of consensuality that essentially they could make these cases also look like, hey, these don't belong in the criminal arena. And that's exactly what the defense is going to argue. Donna Rotuno, one of Harvey Weinstein's defense attorneys, had this to say this week to Vanity Fair. She said, I look at Harvey Weinstein and I say, Harvey Weinstein was the guy who held the keys to the castle that everyone wanted to get into. And what people did is that they used him and used him

and used him and used him. They didn't look at Harvey and say, oh, God, he's the most gorgeous guy I've ever seen and I want to go to his hotel room. They looked at Harvey and said, Harvey can do something for me. And so who was using who? What she seems to be saying is he wasn't the predator. In some ways, she's arguing

they were a kind of predator. Exactly. That's what's so remarkable about the quote. She's basically saying the women were the predators and they used Harvey Weinstein. I'm struck that this case that's moving forward feels less than we expected. when you think about the strength and the overwhelming power of the allegations that started to emerge from the reporting that you and Megan did two years ago.

And I'm having a little bit of a what is going on here kind of moment in this case. We end up with these three charges. case. We end up with these three charges. Lucia Evans is dropped because of complications, and the remaining charges may end up asking the jury to grapple with some very thorny and nuanced questions around consent. So how did we end up in this place? So let me tell you a story about an alleged Weinstein victim I've been speaking to for a long time. She wouldn't come on the daily because she's still anonymous. In legal documents, she's referred to as Jane Doe. All right, here we are, ready to go. But I was able to speak to her attorney, Jeannie Harrison.

Hi, Jeannie, it's Jodi Kantor at The Times. How are you? Hello, Jodi. And Jeannie Harrison describes a client who, like Lucia Evans, had a very difficult decision to make about what to do with her Weinstein story. Well, let's just start. I want to ask you today to talk about your client, Jane Doe. Why was she coming to you? Jane Doe was coming to me because she really felt she needed a lawyer who could help her navigate her involvement in the criminal investigations that were going on against Harvey and help her understand her own rights. The reason why Jane Doe's story is so striking is that she's basically telling the story of Harvey Weinstein engaging her in a cycle of sexual abuse that lasts for years. It begins in 2013. At the time she's 22, she was an aspiring actress and working very hard to try to get her break in the industry. Harvey was the major player in the business. He lures her to a hotel room in Park City, says it's for work reasons, allegedly abuses her there. And then what she says is that Harvey

Weinstein threatens her. You know, you can't tell anybody what happened and I'm going to ruin you if you don't play along. She was very concerned about the negative impact that he told her he would have if she didn't capitulate to his demands, if she didn't act as his friend. I want to ask you to read a couple of lines from the complaint you eventually filed on her behalf. Do you have the complaint in front of you? I do. Now, one of the worst instances she describes takes place in March 2013 in New York. What she says is that she goes to Weinstein's office and that he's telling her that he's going to give her a script. So upon entering his office, Jane Doe sat on the couch while Harvey Weinstein claimed to be looking for the script.

However, soon after she sat down, he came into the room and kneeled in front of her. She was wearing a skirt, and she became uncomfortable and frightened immediately. became uncomfortable and frightened immediately. Harvey Weinstein started telling Jane Doe that he couldn't find the script, but he'd have someone email it to her. And then immediately, he's telling her that she smells good. And he began touching her and moaning. She tried to scoot away, and she was begging him to stop. But he didn't. Instead, he pulls at her knees, but he didn't. Instead, he pulls at her knees saying, we've been dating for weeks, which was not accurate. And I have been good to you. Now you need to be good to me. Weinstein then held Jane Doe down, removed her underwear and instructed her to relax, telling her, relax, he's much larger and stronger than she is. And when she said no, he again pushes her down,

scolding her by saying that he's become irritated with her. And he then forcibly performed oral sex on Jane Doe. When Jane Doe began audibly sobbing, Weinstein told her there is no reason to scream and began berating her, saying things like, oh my God, you're so difficult. He told her that she, quote, was being stupid, end quote. And he then began lecturing her about how he and his people were all trying to help her and asked her, do you even want to be an actress? He expressly reminded her that he was the gatekeeper to her dream by claiming, I slept with Jennifer Lawrence and look where she is. She's just won an Oscar. So I just want to say here, there's no indication that Harvey Weinstein

actually slept with Jennifer Lawrence and she denies it. What we have a lot of evidence of is that woman after woman says that in the course of pressuring women, he would say things like, I slept with Gwyneth Paltrow or I slept with Jennifer Lawrence or I slept with Charlize Theron. And that it was part of that work as a form of coercion. It was a message that, hey, if you do this, you're going to be successful. So like Lucia Evans' allegation, Jane Doe's story seems like a pretty strong candidate for criminal prosecution, right? It sounds like it falls within the statute of limitations. It happened in New York, and it's an allegation of a criminal act, right?

and it's an allegation of a criminal act, right? Based on what Jane Doe and her lawyer say, the case sounds potentially strong. She's saved some communications with Weinstein. She told at least one other person afterwards. And also, there's some evidence that Weinstein tried to pressure her to stay silent. Weinstein and his team were putting a lot of pressure on Jane Doe for her to mis silent. Weinstein and his team were putting a lot of pressure on Jane Doe for her to

mischaracterize what was happening between the two of them and for her husband to confirm the mischaracterizations. And it seems like also, as in the case of Lucia, prosecutors recognized the potential strength of Jane Doe's case. That's how she came to be Harrison's client, right? After prosecutors reached out to her. Right. So Jane Doe comes to me because she's been interviewed a number of times by the police in New York in relation to Harvey and what he did to her. And she feels really between a rock and a hard place because she is being asked to be one of the victims on behalf of whom charges could be filed against Harvey, criminal charges. And she's terrified about what that would mean for her. And she's trying to figure out what her rights are and what she should do.

So what does Harrison say about the conversation she has with Jane Doe once she agrees to take her on as a client? She says she tried to be really frank and just lay all of the options out on the table. She said, if you pursue a criminal case against Harvey Weinstein, this is what you will face. The defense attorneys defending Harvey Weinstein are going to hire private investigators, and they're going to investigate you and everything they can find out about you and try to find out anything they can use against you. Every aspect of your life is going to be scrutinized.

The prosecutor is going to have to turn over evidence related to you, everything that they have in their file about you. Your personal life, your history, your exchanges with Weinstein, they're all going to be on the table. And she tells Jane Doe about the process of cross-examination. It's about attack the victim, blame the victim, malign the victim, and try to convince the jury that the victim's the bad person here. And that if she wants to go forward, that is almost inevitably what's going to happen to her, no matter how terrible this alleged crime is, no matter how strong the case is. And does Harrison actually suggest to Jane Doe what she should do?

She says she doesn't. What I typically tell clients in a situation like this is that they need to make decisions based on what they think their priorities are and what's in their own personal best interest. They have to put themselves first. And so I encouraged her to do that. have to put themselves first. And so I encouraged her to do that. Typically, I proceed by having them outline what their immediate goals are and prioritize those so we can make a plan to achieve those goals. How much thought did she give it? A tremendous amount of thought. She really grappled with this. She had a lot of internal conflict. So Jane Doe is left to wrestle with this really difficult decision of whether or not she should come forward. On the one hand, it would put her

at great personal and maybe professional risk. But on the other hand, if women don't come forward, there can be no trial, let alone a conviction for Harvey Weinstein. What does Jane Doe ultimately decide to do? In the end, charges were not filed on her behalf because she felt that she really could not take the risk. She decides not to go through with it. Not participate in the criminal case. Exactly.

And look, this is part of the explanation for how we get from 80-plus Weinstein allegations to two who are at the basis of this criminal trial. And there are a lot of different reasons for that, right? We've talked about them. There are questions of time and place and whether these are criminal acts. But there's also the question of the willingness of the women. I think probably the core issue that victims grapple with in sex abuse cases is whether or not to come forward.

And if I come forward, how far do I go with this? And a sex abuse perpetrator, the sexual violence perpetrator, perpetrator, the sexual violence perpetrator, really benefits from what happens emotionally to the victims that occurs inside of a victim. And so all of that is, it's like a tornado or a hurricane inside of a victim. And having the clarity to somehow put that all aside and say, here are the specific actions I need to take and the deadlines by which I need to take them. It just doesn't work that way emotionally for victims. The kind of pull we heard from Lucia Evans,

that determination to participate despite the obstacles, that same determination by Mimi Halei and this anonymous woman to remain as part of the process, I have to say it's pretty uncommon. Even after everything we've learned about the Weinstein story, even after all of these women coming forward, what criminal prosecution requires is the willingness of these female victims to participate. And there are so many reasons not to. It really demands so much of them.

And what we've been seeing is that there just aren't that many who are willing to do it. So there may very well be more women like Jane Doe out there who might have a strong criminal case against Weinstein, who clear all these logistical hurdles and are eligible, but they aren't willing to do this. There may be. We don't know the full picture. But this certainly helps explain how, with just a few months to go until trial, the prosecution is in a tough spot. But then there's a development. spot. But then there's a development. Now, the prosecution are also aiming to and hoping to bring in other women who have made accusations, brought in as witnesses to sort of build... The prosecution has been very concerned with this paucity of women's voices in the trial,

and they've been seeking to address it through this very particular strategy. seeking to address it through this very particular strategy. They want more women to be able to testify, alleged Weinstein victims who can paint a portrait of his pattern of predation. In New York, these are called Molyneux witnesses. You may also see them referred to as supporting witnesses, prior bad acts witnesses. If you know this concept, it may be from the Cosby trial. I want to talk about this, the Cosby verdict now. Because remember, that was sort of a similar situation. There were dozens and dozens of women who had come forward against Cosby, and yet the criminal trial rested basically on one woman. So in the first Cosby trial in 2017, those additional witnesses are not allowed, and it ends in a mistrial. There was a big chance that Bill Cosby would walk out of this.

In the second trial, the witnesses are allowed. The five prior bad act witnesses, you know, really, really made a difference. I think the jury based it certainly upon the facts of the case, but I think the five accusers and the prior bad acts had a lot to do with his conviction. And Cosby's convicted. So the prosecution in the Weinstein trial really, really wants to include these kinds of witnesses. But for a long time, it's not clear whether or not the judge is going to allow them. And then he rules. The Manhattan DA's office has said it's going to call what we say are three prior bad act witnesses. That means other women... More women's voices are going to be heard in the course of this trial.

This, Jodi, sounds like a very meaningful development for the prosecution. This, Jodi, sounds like a very meaningful development for the prosecution. It's absolutely what the prosecution wants, but it cuts both ways. Because remember, these witnesses can be cross-examined. And that's exactly what the defense is going to try to do. They're going to try to poke holes in these women's stories as well. So what this means going into trial this week is that we still have no idea which way this is going to go. We'll be right back. We'll be right back.

More than two years after sexual assault allegations against Harvey Weinstein ushered in the MeToo movement, the disgraced movie mogul's criminal trial is set to get underway in New York. Jury selection begins tomorrow. Megan, welcome back. Hey, Michael. So, we have been talking to you, Megan, and you, Jodi, over these past two episodes about the lead-up to this trial, how we got to this point in the Harvey Weinstein case. And now the trial is actually underway. And both of you were at the courthouse on Monday when it started. What was that like?

Well, I was standing with some of Harvey Weinstein's alleged victims. These are women who are not part of the criminal trial for all of the reasons we've discussed. But they kind of want their moment, they want to look at him in the eye as the proceedings are about to begin. So they've gotten there very early in the morning, they've been weeding, they're bundled up in the cold.

The cars are coming by, and they keep looking. Is that him? Is this him? And finally, this big black SUV pulls up. And Harvey Weinstein gets out of the car. And it's like, this is the moment. He's here. And one of the women tells me that she hasn't seen Harvey Weinstein

in years and years since her alleged encounter with him. But he gets down out of the car and he's using a walker. He's sort of stooped. He's recently had back surgery. He's surrounded by his legal team, and he goes straight into the courthouse.

He doesn't glance at the women. It's not clear if he knows that they're there, and they sort of don't get this moment that they've been waiting for. Thank you for being here. Dear Harvey. poor. So at this point, the women cross the street and they give their own press conference. I thank those testifying for standing, not just for themselves, but for all of us who will never have even one day in court. Rose McGowan. I stand in solidarity with the brave survivors who will take the stand against Harvey Weinstein in this trial.

Actress Rosanna Arquette says a few words. And basically their message collectively is to say, look, we aren't going anywhere. Even though we're not part of this trial, our voices need to be heard. And time's up on the pervasive culture of silence that has enabled abusers like Weinstein. And Megan, what's actually happening inside the courtroom on this first day? So the courthouse is packed. People have been lining up since the crack of dawn to go in.

But it's a pretty straightforward proceeding. The judge is spelling out how things are going to unfold in the coming days and weeks as they round the corner into jury selection. So Jody and I, after a little while, determined that there's actually not that much to see. And we hop on the subway to head back to the newsroom. Shortly after we get back to the office, I look at my email and there's a new message coming in from one of our colleagues who's saying that he's hearing that there's about to be news out of Los Angeles.

Good morning. I'm here today to announce that my office has charged Harvey Weinstein with sexually assaulting two women in Los Angeles County. That the Los Angeles District Attorney's Office is about to announce criminal charges against Weinstein in L.A. Once the defendant's case is completed in New York, we expect him to appear in a courtroom in Los Angeles County to face these charges. There is a charge of rape stemming from what sounds like a very forcible and brutal encounter with a woman from Italy. And there is a charge of sexual assault stemming from an encounter that happened with another woman literally the day after the alleged rape. Is this something that you had any idea might be coming?

Well, remember that while New York has clearly been the most aggressive, there have been other jurisdictions that have been criminally investigating Weinstein, specifically L.A. and London. And we had actually heard some rumblings that L.A. might be on the verge of bringing criminal charges, but we certainly had no idea that those charges were going to be announced on this particular day, the day that Weinstein's criminal trial begins here in New York. So what does this seem to mean for the criminal case in New York? And what does it mean for Harvey Weinstein? Well, Harvey Weinstein is facing ongoing legal trouble no matter what. Whether he's acquitted or convicted here in New York, he's going to face another prosecution in L.A. And big picture what this means is that that sense of narrowness we talked about, that feeling that the allegations against Harvey Weinstein are so much bigger than what's on the table in these criminal charges, and it now feels like these criminal

proceedings are going to represent the kind of pattern of Harvey Weinstein allegations. So imagine a juror coming in with a truly blank slate and sitting in this courtroom, and she's listening to this anonymous accuser describe this story of rape. And the juror is trying to sort through the holes and the complications in the story. She's trying to decide if this is really enough to send Harvey Weinstein to jail. But then she hears another witness tell a very similar story. And then another witness. And then another witness tell a very similar story. And then another witness. And then another witness.

That might matter. Megan, Jodi, thank you. Thank you. Thank you. Thanks, Michael. Here's what else you need to know today. The news will undoubtedly come as a further shock to the families who are already grieving in the face of this unspeakable tragedy.

face of this unspeakable tragedy. American and Canadian officials have concluded that the Ukrainian passenger plane that crashed in Tehran on Wednesday night, killing all 176 on board, was shot down by Iran. The evidence indicates that the plane was shot down by an Iranian surface-to-air missile. The plane was shot down just hours after Iran fired a barrage of missiles at two U.S. bases in Iraq and may have been confused by Iran's military for a U.S. jet or rocket. And we cannot go to war without Congress being involved in the debate and the president telling us what his policy is going to be. I yield back. On Thursday, the House of Representatives voted to force President Trump

to seek authorization from Congress before taking further military action against Iran. The vote reflects the growing skepticism within Congress over the president's rationale for killing Iranian General Qasem Soleimani and over the Trump administration's claim made in a series of briefings to lawmakers this week that it does not need permission from Congress to launch such an operation. What I found so distressing about that briefing was that one of the messages we received from the briefers was, do not debate, do not discuss the issue of the appropriateness of further military intervention against Iran.

And that if you do, you'll be emboldening Iran. Lawmakers who sat through the administration's briefings, including Republican Senator Mike Lee, described them as highly disrespectful of Congress. I find this insulting and demeaning, not personally, but to the office that each of the 100 senators in this building happens to hold. It's un-American.

It's unconstitutional. And it's wrong. The Daily is made by Theo Balcom, Andy Mills, Lisa Tobin, Rachel Quester, Lindsay Garrison, Annie Brown,

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