The Daily - The Woman Defending Harvey Weinstein

Episode Date: February 7, 2020

Note: This episode contains descriptions of sexual violence.In the trial of Harvey Weinstein, six women have taken the stand, each making similar accusations of rape and sexual assault against the movie producer. Throughout their testimony, Weinstein’s defense lawyers have portrayed those encounters as consensual and suggested that in many cases it was the women who wanted something from Mr. Weinstein. His lawyers have seized on the fact that the two women whose accounts are at the center of the criminal charges in his New York trial agreed to have sex and friendly contact with Mr. Weinstein after they were allegedly victimized. Today, one of The Times reporters who broke the story of Mr. Weinstein’s alleged abuse more than two years ago speaks with Donna Rotunno, the lawyer behind Mr. Weinstein’s legal strategy.Guests: Megan Twohey, an investigative reporter for The Times and co-author of “She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement," spoke with Donna Rotunno, Harvey Weinstein’s lead defense lawyer. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: Long before an avalanche of allegations against Mr. Weinstein set off a global reckoning over sexual harassment, Ms. Rotunno was steadily building a career as a criminal lawyer in Chicago with an unusual specialty: defending men accused of sex crimes.Haven’t been following the trial? Here’s what’s happened so far.

I was contacted on a Tuesday evening as I was leaving my office from someone in New York, and they said it's something big. And it's funny because I think most people would expect me to say I was shocked by the call, and I really wasn't. We spoke for eight hours the first time I came, and he was really interested in speaking to a female lawyer, and I said I thought that was a good idea for him. Being a woman at least puts me in a position where people say, well, wait, this woman has sort of a different position

than what the majority of women are feeling today, but I also believe that I hold a position that a lot of women feel and don't want to talk about. At the end of the day, Harvey Weinstein is well aware of the fact that his life is on the line here. And, you know, obviously having a voice is not only necessary and fair, but it's something that he deserves. He deserves to have a voice out there.

How are you feeling, Harvey? I'm glad your mother's not here to see this. From The New York Times, I'm Michael Barbaro. This is The Daily. Mr. Weinstein, how are you feeling today? Harvey Weinstein walked gingerly into court this morning without the walker he has relied on for weeks. In the trial of Harvey Weinstein, six women have taken the stand,

each making similar accusations of rape and sexual assault against the movie producer. She alleged that Harvey Weinstein urinated on her, threw her on the bed, got on top of her. Today, she took the stand recounting three separate assaults, at times sobbing uncontrollably. But the defense previewed what it called dozens of loving emails sent by some accusers to the producer. Throughout their testimony, Weinstein's defense lawyers have portrayed those encounters as consensual. The relationship continued. And suggested that in many cases, it was the women who wanted something from Weinstein. Donna Rotuno, Harvey Weinstein after they were allegedly victimized.

Today, on her second day of testimony, Jessica Mann had a breakdown on the stand during cross-examination when she was being questioned by Weinstein's attorney, Donna Rotuno. You met Harvey Weinstein at a Hollywood Oscar party, the defense attorney asked. Yes. Did you think that meant you were getting a role? Yes. Today, my colleague Megan Toohey, one of the reporters who broke the story of Weinstein's alleged abuse more than two years ago, speaks with Donna Rotuno, the lawyer behind Weinstein's defense strategy. Morning. Any comment on the trial that you want to find out?

I have a good lawyer. How you doing, Art? Really? I hope so. Right now, uh... It's Friday, February 7th. So we'll be... We can start? Okay, so you're going to put on air. Do you want to tell us what you had for breakfast?

Sure, I had nothing for breakfast, actually. Not even a coffee. All right. Well, Donna, thank you again for being with us this afternoon. I've read that you have represented as many as 40 men accused of sexual misconduct. That's a lot. It is. Do you remember a specific case that pulled you in to representing men accused of sexual misconduct?

You know, I think really one of the cases that pulled me in initially before I even was taking these kinds of cases was the Duke Lacrosse case. It's like, you know, here we have the media coming out and just assassinating these young guys and then coming to find out that this story completely collapsed. And I remember my mother saying at the time when we were watching the coverage on the news, when those boys die someday, their obituary is going to say the Duke lacrosse players.

And I thought, wow, here's this allegation that sticks with you your whole life. I mean, these are life-changing circumstances. You know, I think quite often we look to the accusers and we talk about the effects that these things have on their lives, but we do not look at the effects that these types of allegations and accusations have on the person being accused. And, you know, you have to look at what it does to people's financial abilities-level executives in Chicago. And one woman makes an allegation and all of that business goes away. And so he wins. But what do you win? You win your case in criminal court and then you have to worry about building your reputation back, if you can, where people are willing to then come back and frequent your establishment. So the ramifications are social, they're economic, they are the mental toll that it takes. I mean, look at Harvey. Look at Harvey

physically from what he looked like when all of this started to what he looks like now. People can talk all they want about walkers and faking it. And physically, it is so apparently obvious what this has done and the toll this has taken on him. You know, you're talking about the toll that the criminal justice system can take on men accused of sexual misconduct. When I was working as a reporter in Chicago, my investigations turned up evidence of the opposite, that all too often victims of sex crimes were the ones being mistreated by police and prosecutors. I discovered that law enforcement was, for example, shelving rape kits, basically sitting on valuable DNA evidence that could help victims obtain justice. I found that sex-abusing doctors were continuing to practice even after patients reported them

to police. And in response to my reporting, prosecutors and police acknowledged that they had failed victims. But are you saying that from your perspective, it was the accused who were being treated unfairly or... No, I'm talking about the fact that we, especially today, all I can tell you is in my cases, what I see, we allow people who make allegations to automatically take on a victim status. And I think for me, all I'm looking for is fairness. And if we automatically have this notion that we're supposed to believe all women or believe all victims or believe all people that come forward, we are taking out a very large portion of the steps that we should be taking before we get to that notion that just because someone says something, they should be believed. So I think it's, you know, what you have reported, I will not disagree with. I've seen police do horrible things. I've seen prosecutors do horrible things. But I'm speaking from the perspective of what I think going through something like this and an allegation

does to someone. And one isn't more serious than the other. One shouldn't be more important than the other. They're facts. Difficult for people to come forward. Difficult for people to be accused. Are you saying that as you built your practice and created this niche in terms of representing men accused of sexual misconduct, that as you saw it, the criminal justice system favored victims unfairly? I think 100%. I think 100% favor victims. I think prosecutors and police are afraid to be skeptical of complaining witnesses and accusers today. I think they feel like I better just believe what they say. I think it's also happening in domestic violence cases. What is it like to cross-examine alleged victims of sex crimes? I think that it requires a skillful set of, you know, questions

and preparation. And I don't ever look at my job as going in there trying to be disrespectful or berate someone or, you know, minimize what they claim happened to them. You know, I don't take pride in having to put people through circumstances that they may find difficult. That's not the point of what I do. My job is to ask questions that make a trier of facts, whether that be a judge or a jury, determine if they think their story is credible. What someone says does not mean that that's what happened. There's always more than one side to a story. And there's something in our Constitution, the Sixth Amendment right to confront witnesses. And

my client, whoever that is at the time, has the right to confront his accusers through me or my team. And, you know, that's what I have to do. And to live in this country, to not believe that baffles me. So what did you think about how the Me Too movement unfolded? You know, I've talked about Me Too a lot and I get labeled this anti-Me Too. It's not really anti-Me Too. It's anti what happens because of things like Me Too. So if 500 positives come from Me Too, and I'm sure I could sit here with you and look at all the things that have come from Me Too and agree that there's positive things that come from Me Too. But if as part of that, that strips your right to due process, if we're going to convict people before they have a trial, I find that to be damaging and detrimental. In making your decision to represent Weinstein, did you factor in this long history of accusations of sexual harassment and sexual assault against Weinstein outside of the criminal charges, some of which were made years before 2017 and the MeToo

movement being ignited? You know, I didn't. I didn't because my role in this is to represent him in a criminal case. And as I've said multiple times, there's a difference between sins and crimes. And you can believe that Harvey Weinstein is a sinner and you can believe that he did things that you wouldn't do or you don't like. But my question here is,

does that rise to the level of a crime? What are sins? I mean, sins are treating somebody inappropriately. Sins are yelling at somebody at work, cheating on your wife. I mean, that's a sin. And, you know, those types of things are not good, but they also don't mean that you should spend the rest of your life in prison. So what do you see as the clearest evidence that Harvey Weinstein should not be convicted? I think, you know, these are consensual encounters. We have communications at the time that I believe proved that they were consensual encounters. I believe the actions of women after the fact proved that they were consensual encounters. When you look at real-time communications between two people,

it really lends a very interesting spotlight into what was happening between two people at the time. And maybe the story being told today or in a courtroom is different. And I guess at the end of the day, it's going to be for the 12 people on the jury to decide based on the evidence if they can shut out everything else that they've heard. And hopefully they will make their decision based on

the facts and the evidence that they hear in the courtroom. Do you think that sexual violence can take place within otherwise consensual relationships? I do. I absolutely do. But you don't think that that... No, I don't think that that plays into this case at all. I don't think it plays into this case when you have people that are continuing to contact him when they have absolutely no other reason to. You know, things like reaching out to Mr. Weinstein after you change your phone number saying, I wanted to make sure you had my new phone number. These communications go far beyond anything that any mental health professional, psychiatrist, psychologist, they go far beyond any of these, you know, new circumstances that doctors want to put forth in order to explain away why people may enter into certain behaviors. They go far beyond that. So what about the wide understanding that Harvey Weinstein was not just a powerful producer in the entertainment industry, but one of the most powerful producers, somebody who could make and break careers that could serve as a gateway into the entertainment industry?

And a lot of the women who have made allegations not just in the criminal case but beyond the criminal case have said that even after experiencing alleged sexual misconduct, they had communication with him because they felt like he could either hurt or harm their careers. Well, the notion that he could hurt them is absolutely ridiculous. Harvey Weinstein was one of many very powerful people. And if Harvey Weinstein called one of the other people in the industry and said, don't use actress A, they would have wanted to use actress A 10 times more. So that notion that he could hurt people's careers, I absolutely find ridiculous. The second part of your question

is these are still choices that women are making. And whether they're choices you're happy you made or not happy you made, you still made a choice. And women have to start owning those choices. And they either have to say, I'm not going to do these things to attempt to get a job, or I'm going to own my choice for making that decision. things to attempt to get a job, or I'm going to own my choice for making that decision. Can you elaborate on that a little bit? I'm trying to understand how that, when you say that women have choices, I'm trying to understand how that does not extend to you saying that women have a choice whether or not to be sexually harassed or sexually assaulted, that you seem to be placing

all of the responsibility on the woman. Megan, I'm not blaming anyone. Megan, no, I'm not putting all of the responsibility on the woman. I'm placing responsibility on the woman. Women cannot be equal if women don't start taking on equal risk. Women want men to take on all the risk. They want to then put themselves in whatever situation they're in and then walk out and say, oh my God, I had no idea that was going to happen to me. You can't have it both ways. And when you're put in circumstances that you think are questionable or negative, or you don't want to be in, or you think this is the only way I'm going to get the job, we know that that's ridiculous. We know that if women stand up and say,

I'm not going to take this, I'm not going to do this, you have other options. So when I make comments and say, if you go to the hotel room, it doesn't mean you deserve to have something bad happen to you. But if you go to the hotel room, you continue to perpetrate a culture that allows that to be acceptable. And so if women take the power and women say, none of us are going to a hotel room, then that culture must change.

But you're kind of conflating women in general agreeing to meet somebody in a hotel room with alleged victims of Harvey Weinstein agreeing to meet Harvey Weinstein in hotel rooms. In those cases, it was very well established that Harvey Weinstein conducted business in hotel rooms. Oftentimes, women who say that they were victimized by Weinstein in those hotel rooms, said that they were showing up for work meetings. In fact, some of them had been told to go there by their agents. Well, I'm just going to tell you that in my case, the two charged victims in my case, that is not the circumstance. And if you are asked to go to a event for the Oscars, and then you are asked to go out for drinks after the event for the Oscars, and then you are asked at midnight to come up and see a script, I think at some point women have to, like, the radar has to go up or the light bulb has to go on, and you have to say,

okay, this may not be what I think it is. So there are of the many women who said that they showed up for work meetings at a hotel room or at an office only to feel like Harvey Weinstein turned around and preyed on them and tried to sexually assault or harass them. There are women who have said that they were able to find ways to get out of the room. There are obviously other women who say that they failed to be able to get out of the room, that he attacked them, that he physically restrained them. Again, based on the cases that I have and the things that I'm seeing, anytime someone said, I don't want to do this, you have a bad reputation with women,

I'm not giving you a massage, they walked out of the room. I think anybody that said no, they walked out. And a lot of people that said no are very famous now. What reason would these women have to lie? We have created a society of celebrity victimhood status. We have created a society where women don't have to take any responsibility for their actions. And we have created a society where if we say believe all women, that means we're not supposed to question anyone at all.

So there is absolutely no risk for a woman to come forward now and make a claim. Zero. You know, it's one thing for a woman to step forward and make an allegation on social media or in the pages of a newspaper, it's another thing for a woman to agree to be part of a criminal prosecution and to move forward with all that that entails, including the rigorous cross-examination that you and your co-counsel are performing. Do you think that women would submit themselves to that process if they were lying? Yes, because I've seen it over and over and over again. So you believe that Harvey Weinstein is not guilty of the criminal charges he's facing in this trial, but there are these more than 90 women who have accused Weinstein of sexual misconduct.

are these more than 90 women who have accused Weinstein of sexual misconduct. Do you accept that this criminal case aside, he may very well be guilty of being a sexual predator? My job is not to defend all things Harvey Weinstein. My job is to defend Harvey Weinstein in a criminal courtroom, which I'm doing. And, you know, society will make the judgment call after that. That's not my call to make. So you don't think that the stories of those 90-plus women are valid or are meaningful in relation to you? Megan, you could turn this around every way you want. And, you know, everybody that's listening to this knows you wrote a book and knows you have a completely different agenda than the reason that I'm sitting here. And I came here today in good faith to talk to you about this conversation, and I'm more than happy to do it. But in terms of me going back and talking about every claim someone made, I'm sure if I delved

into individual claims, I would find things that make me say, I'm not so sure. But in terms of what happens going forward, Harvey Weinstein hopefully is going to walk out of that criminal courtroom as a free man. And then, you know, society is going to make its judgments. And that's not for me to decide. And for you either, frankly. So, and I'm sorry, but to go back to the comment you made about the fact that, you know, my colleague Jodi Kantor and I not just broke the Weinstein story and did a lot of investigative reporting on this. We did, in fact, write a book. But when you say our, my agenda or our agenda, what do you mean by that?

Well, you have a completely different view on this. And of course, you know, and I'm not begrudging you. You have a right to your opinion just as I have a right to mine. But all I'm saying is that, you know, I look at the title of the book. Okay, the title of the book is She Said. It's very difficult for Harvey to be able to tell another side or tell his side of the story when there's a criminal case going on. So, you know, I'm just cautioning people to be a little bit more skeptical about a one-sided version of events. That's all.

about a one-sided version of events. That's all. Well, I'm sorry, but I have to sort of dispute your claim that we have at any point presented one-sided journalism. We have— Megan, I'm not saying that. Yeah, I mean, we have— I'm not saying that. We have engaged—we have gone to Harvey Weinstein and presented all of the allegations that we were planning to publish and given him adequate time to respond. And I think that, you know, I just want to emphasize that we go into our reporting with

skepticism, that when we were reporting the allegations of sexual misconduct against Weinstein, that we didn't simply turn around and publish those allegations without doing due diligence, without turning to people in whom these women had confided, in whom they had reported these alleged attacks, and gathering that corroborating evidence and tracking down the documents of the secret settlements that were silenced and other internal company records. I'm not debating any of this. I read it. I read it. I'm not debating any of this.

I'm merely stating that now that we're in a criminal courtroom, there's a different forum to be able to tell this story and let these events play out. That's all. So certainly there are women who believe you are doing the right thing by defending Harvey Weinstein, but you must know a lot of women who see you as a kind of traitor.

How do you respond to that? You know, all I can say to them is I hope they never find themselves in a situation where their family member is accused How do you respond to that? should work one way or another. And I'm not here to predict outcomes. I don't know what's going to happen or what the jury's going to do. But just as everybody wants fairness to the people making allegations, I want Mr. Weinstein to have the same fairness that should be afforded to him. Well, thank you so much for taking the time to talk to us, Donna. I really appreciate it. Thanks. I appreciate it too. Are there any other questions, guys? I know that was a long one. That's all right.

Oh, and I actually, I had another question, which was whether or not you've been sexually assaulted. I have not. Okay. I have not. Because I would never put myself in that position. So you're saying, okay, actually, I'm sorry. So, so you're saying that you, you're saying that you have never been sexually assaulted because you would never put yourself in the position of being sexually assaulted? No, I've always made choices from college age on where I never drank too much. I never went home with someone that I didn't know. I just never put myself in any vulnerable circumstance, ever. Do you believe that every woman who's been sexually assaulted somehow put herself in that position, whether it was having drinks or agreeing to go to a hotel room?

Absolutely not. But just as we make smart decisions when we walk out on the street at night, I think you have to make the same decisions when you're putting yourself in circumstances with other people. When we walk out at night, we look around, we make sure we have our phone. Some people take mace. We take precautions. And all I'm saying is, is that women should take precautions. Do you think it's possible for women to take all of those precautions and still be sexually assaulted? To still be pulled into a dark alley, to still be... Totally different conversation. To still... Totally. Being pulled into a dark alley is a totally different conversation.

So you are talking about sexual assault, women being sexually assaulted by somebody they know? Correct. Do you think it's possible for women to be sexually assaulted by somebody that they know, even if they've taken precautions? Sure. Anything's possible, Megan. It's not about what's possible. It's about trying to, again, minimize the risk. If you go out on a date with someone and you go out for dinner and you go out for drinks and you know them sort of and, you know, you're sort of maybe developing a relationship with them and you make a choice to go into their home at the end of the night.

What do you think could potentially happen? And if you're not prepared for what could potentially happen, I think we're kidding ourselves. And then to leave and say, I had no idea that this person would maybe try to be sexual with me or have a sexual advance, I think is naive. to be sexual with me or have a sexual advance, I think is naive. I can't help but feel like you continue to place the burden of safety on women, on potential victims in general. Should the burden rest on them or should it rest on the perpetrators? I think it should rest equally. And, you know, we've moved this conversation so far away from what we were talking about.

But if you go out with someone, you you know you can't have it both ways we can't have things like tinder where people swipe right and go meet whoever they meet and most of the time those are sexual interactions and then say you know what i i went out with them and i went to their their house and i you know we you know we were flirting or kissing or, and then say I had no idea that he may want to do this. You just can't have it both ways. So I'm saying that women need to be very clear about their intentions. I think women need to be very prepared for the circumstances they put themselves in. And I think absolutely women should take on equal risk that men are taking on.

And the responsibility should be equal as well. Is there anything that you think that men need to do differently? Sure. I think men also need to be very clear about their intentions. And if I was a man in today's world, before I was engaging in sexual behavior with any woman today, I would ask them to sign a consent form. You are being serious. I'm being dead serious. I'm being dead serious because how easy is it for two people to engage in behavior and a day later, two days later, five days later,

27 years later, somebody say, you know what, that's not what that was. 27 years later, somebody say, you know what, that's not what that was. Why not? Why not? Take all of the question out of it. Make it easier on everybody. Well, Donna, thank you again for taking so much time. I really do appreciate it. No worries. On Thursday, the prosecution rested its case against Harvey Weinstein. And defense lawyers for Weinstein began calling their own witnesses. We'll be right back. Here's what else you need to know today. A Times analysis of the results of the Iowa caucuses has found that more than 100 precincts reported results that were internally inconsistent, missing data, or not mathematically possible under the rules of

the Iowa caucuses. The irregularities do not appear to be deliberate and may not affect the outcome, but they point to larger problems with the caucuses, which have been criticized for years as amateurish, and raise questions about when, if ever, the public will get precise results from the contest. On Thursday afternoon, the chairman of the Democratic National Committee, Tom Perez, called for a recount of the Iowa results. And. and...

Ladies and gentlemen, the President of the United States. Well, thank you very much. In his first public remarks since his acquittal in the Senate impeachment trial, President Trump celebrated the verdict, expressed no regret for his conduct, and mocked the Democrats who had pursued the charges against him. It was evil. It was corrupt. It was dirty cops. It was leakers and liars. And this should never, ever happen to another president, ever. During his speech, delivered at the White House,

Trump personally thanked his defense lawyers, his Republican allies in Congress, and the Senate Majority Leader, who oversaw the trial. And Mitch McConnell, I want to tell you, you did a fantastic job. Thank you. The Daily is made by Theo Balcom, Andy Mills, Lisa Tobin, Rachel Quester, Lindsay Garrison, Annie Brown, Claire Tennisgetter, Paige Cowan, Michael Simon-Johnson, Brad Fisher, Larissa Anderson, Wendy Doerr, Chris Wood, Jessica Chung, Alexandra Lee Young, Jonathan Wolfe, Lisa Chow, Eric Krupke, Mark George, Luke Vanderploeg, Adiza Egan, Kelly Pratt, and more. Thank you. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. Special thanks to Sam Dolnick, Michaela Bouchard, Stella Tan, Lauren Jackson, Julia Simon, Mahima Chablani, and Nora Keller.

That's it for The Daily. I'm Michael Barbaro. See you on Monday.