Today, Explained - The (first) trial of Harvey Weinstein

Episode Date: January 9, 2020

Irin Carmon from New York magazine explains how #MeToo is on trial alongside Harvey Weinstein. (Transcript here.) Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Picture an untouchable titan. At one point, Harvey Weinstein was the king of New York and L.A. Wow, this is just fantastic. Thank you to the king of New York and L.A. Wow, this is just fantastic. Thank you to the members of the Academy. He was a powerhouse when it came to channeling both prestige and commercial appeal. Movies that kind of defined the 90s in particular. The other guy that we really need to thank, though, is Harvey Weinstein,

who had the guts, the courage, the commitment to make this picture and get it done. Here he is. And he was also somebody who was known kind of as a character. He was pugnacious. People wrote about his temper, but they wrote about it kind of admiringly. Mark Gill and Marcy Granato, who are the one in two most dynamite marketing team. And your brother, Bob. I'm getting there. Okay.

He was almost like an old studio boss. Life and art, and art and life combining is called magic. You know, there were public jokes about his behavior towards women. Congratulations, you five ladies no longer have to pretend to be attracted to Harvey Weinstein. There were whispers, but what we now know is that Harvey Weinstein employed basically an army to keep stories about him that were unfavorable out of the press until the fall of 2017 when first the New York Times with Megan Toohey and Jodi Kantor, publishing allegations of sexual harassment. New York Times quotes Weinstein as saying,

I came of age in the 60s and 70s, when all the rules about behavior in workplaces were different. That was the culture then. And now one of the most powerful men in Hollywood says he is taking a leave of absence to, quote, conquer his demons. The moment where I thought, well, maybe this time something will be different is when that first New York Times

story came out and Ashley Judd went on the record. And he just started in on me right away. Can I give you a massage? You must be so tired. And I was like, no, you may not. I don't know how I had the moxie to stand there and say, no, no, uh, no, no. And then he asked me if I would watch him take a shower. So a famous actress saying Harvey Weinstein sexually harassed me

was something that we had not seen before. And I think that actually opened the door for a lot of other women to feel comfortable because Ashley Judd is somebody who is well-known and well-established. And very quickly, many other famous actresses joined Ashley Judd in putting their names to stories. Women like Gwyneth Paltrow, Angelina Jolie talking about unwanted sexual advances from Harvey Weinstein. And when The New Yorker started publishing its reporting, it included deeply serious criminal allegations of sexual assault, including by actresses like Annabella Sciorra. The actress saying Weinstein forced his way into her New York apartment after a business dinner.

He shoved me onto the bed and he got on top of me, adding, I kicked and I yelled, but Weinstein overpowered her. He went from being a well-respected movie mogul who maybe wasn't in his prime, but, you know, was in the firmament, to losing control of his company, which has since declared bankruptcy, to having 100 plus, perhaps, women accuse him of sexual harassment and assault. And though Me Too, hashtag MeToo, did not begin with Harvey Weinstein, you know, this hashtag that Tarana Burke had created, it really exploded with him. With the kind of reporting in depth of the secrets that so many people had kept for Harvey Weinstein, this pattern of predation that so many people described, a lot of people were inspired to share their own stories. And so, in a way, it was kind of the Kindle

that lit the Me Too movement. And now, a little over two years after those first allegations were published, he's going to face accountability in a court of law. Irin, Carmon, you've done tons of reporting on Me Too at New York Magazine. Let's talk about this long-awaited first trial of Harvey Weinstein that began in New York City this week. So out of 100 women who have made public complaints against Harvey Weinstein, only two will have their cases heard in this New York trial.

However, prosecutors have figured out a way to try to mimic the effects of Me Too, which was to create so many voices that it's harder to ignore the pattern. And so prosecutors are actually going to bring to testify at least four other women, again, whose cases he's not being tried for in New York, to testify to Harvey Weinstein's character and to what they say is a pattern of predation. Both of my clients in this case have been very brave, very courageous. They're willing to testify under oath, to tell the truth, the whole truth, and nothing but the truth, so help them God. So in the trial, we're expected to hear from at least six women. Again, this is

in flux. But we know that Annabella Shior is scheduled to testify to say that Harvey Weinstein raped her. And in many ways, this is the most significant testimony that doesn't come from one of the women whose cases are directly at issue. Because New York has a statute known as predatory sexual assault. It can carry 10 years to life in sentencing. It is the most serious charge of which Harvey Weinstein has been indicted. And in order to establish that charge, prosecutors have to show that there's a pattern of predatory behavior. Annabella Sciorra describes events that happened in 1993 and 1994. That is outside of the statute of limitations that's in effect for her allegations.

And so prosecutors have sought to find a way to use Annabella Sciorra's account to establish predatory sexual assault without directly charging it. And what they hope is that the jury will hear first from these three women who haven't been identified and hear about Harvey Weinstein's, quote, prior bad acts, to hear about them talk about his modus operandi, and then to hear Annabella Sciorra talk about, it's a really painful story. If you go back and you read Ronan Farrow's story in The New Yorker about what Annabella Sciorore describes, it's haunting. And she also says, you know, in that original story that after the first reports came out about Harvey Weinstein, people said, well, you know, it's some passes that he made, but it's not violent rape. And she said, well, what happened to me was violent rape. And she didn't end up pursuing criminal charges at the time. Did anyone try and take this to criminal court before these cases that are being heard right now?

The one woman who we know of who had made a criminal complaint against Harvey Weinstein in 2015, Ombra Batilana Gutierrez, who was 22 years old when she said that Harvey Weinstein sexually assaulted her. And she immediately went to the NYPD. So again, this is textbook. What we tell victims and survivors to do, go to the police. So she goes to the police and she agrees to wear a wire. And then captured on tape is him kind of this, quote unquote, coercive bargaining that he's doing to try to get her to go into the hotel room. I'm feeling very uncomfortable right now.

Please come in now and one minute. And if you want to leave when the guy comes with my jacket. Why, Mr. Day, you touched my wrist. Please, I'm sorry. Just come on. I'm used to that. Are you used to that? Yes, come in.

No, but I'm not used to that. I won't do it again. Come on. All of this was presented to the New York DA and was not considered enough to bring charges. And that is, it appears, in part because there was a successful campaign waged against Ambra Batilana's past. Weinstein hired as part of his team, including Rudy Giuliani and the former head of the sex crimes division of the Manhattan DA, Linda Fairstein, all of them pressuring the DA, Cyrus Vance Jr., who's still the district attorney in Manhattan, not to bring charges. And it worked. And she eventually signed an NDA. Getting back to these cases that opened in New York this week,

first things voir dire, jury selection, how is that going? So it's a challenge any time you have jury selection in a case that has been so high profile and for so long. Immediately on the first day of jury selection, at least 40 people asked to be dismissed because they say they cannot be objective in assessing Harvey Weinstein's guilt. One of the questions that potential jurors were asked is whether they themselves or someone close to them has been a victim of assault. And, you know, many of these are factors that come into play for any kind of assault jury selection, sexual assault jury selection. But, of course, with a man like Harvey Weinstein who has become synonymous with Me Too, I think the challenges are extra. It's one of the reasons that Harvey Weinstein's legal team sought to get the trial moved. Although you could argue that there are a few corners of American life

that have not heard about the allegations against Harvey Weinstein. In a minute on Today Explained comes from Ramp. corporate card and spend management software designed to help you save time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp. You can go to ramp.com slash explained, ramp.com slash explained, R-A-M-P dot com slash explained. Cards issued by Sutton Bank. Member FDIC.

Terms and conditions apply. Erin, you mentioned that it's hard to find people who haven't heard about the allegations against Harvey Weinstein or who haven't been touched by an occurrence of sexual assault in their lives or the lives of people they know. What exactly is the defense that Harvey Weinstein's legal team is preparing here? So Harvey Weinstein has had to replace his lawyers or chosen to replace his lawyers multiple times. The reporting has been that this is because he micromanages his attorneys. They've complained that they don't get paid on time. He has argued with them about strategy. But he is currently primarily represented by a woman named Donna Rotuno, who's based in Chicago.

And there are some other lawyers on the team, but she's been the most visible one. And she's acknowledged that she thinks one of the reasons that Harvey hired her is because she's a woman. I'm absolutely certain that that was part of it. And I think it was probably a good move. And she's somebody who has represented many men who are accused of sexual assault in the past, although never a case this high profile. What Donna Rotuno has said, and she said this in ABC News interviews and to Vanity Fair and in other places, is that she said, if Weinstein is convicted, then we'll have a world in which women will never be

asked out on a date and never get the door held open for them. Wow. Really? Yeah. Yeah. I mean, of course, Harvey Weinstein is accused of rape and sexual assault, not opening the door for women. But I think what's really interesting about the arguments that Donna Rotuno has made on behalf of Harvey Weinstein so far is the extent to which they're pushing back at the cultural shift, right? They're not making a legal claim about the evidence, at least not in the court of public opinion. Of course, she will have to in the court of law. But the defense so far has been similar to the kind of Me Too has gone too far. What about romance? What about romance? She told Vanity Fair that if Harvey is convicted, then women won't be asked on dates and men won't hold doors open for them. And then simultaneously,

Rituno has made the argument in interviews that these women entered into a transaction with Harvey Weinstein willingly. You have to know that when you make certain choices, there's a risk when you make those choices. A lot of people would say what you just said is victim blaming. And that's absolutely not true. If you don't want to be a victim, don't go to the hotel room. And if you don't want to be a victim, don't sign an NDA. Then go out onto Fifth Avenue, take a megaphone, and talk about what you want to talk about. Now, of course, she denies that these women are victims, but she also said that, which, you know, the notion that these women knew that the price of working as a production assistant, in the case of one of the women or aspiring to be an

actress, that that necessarily means that they have abdicated their right to consent to sex. That might be tough to convince a jury, but at the same time, if my Twitter mentions are any indication, there are plenty of people who are willing to believe that, that women would go through this incredibly excruciating process of the criminal justice system just because they regret agreeing to have sex with Harvey Weinstein for a job. So essentially what you're saying here is that the defense for Harvey Weinstein leading up to this trial has been to put Me Too itself on trial. Yes, I think that's right. In like the public eye. Yeah, absolutely. And, you know, I think it taps into people's real anxiety about the scale of social change that's happened in the last two years. And again, a work of journalism can draw on nuance and it can draw on context and hundreds of women or dozens of women and experts. experts, and there aren't going to be experts that testify at the trial, but ultimately the jury is going to have to decide, do I believe these two women when they say they were assaulted?

And not, do I believe that there were dozens of others? The defense that romance might be dead if Harvey Weinstein is convicted is, I mean, so obviously ridiculous that it's hard to take seriously. But does his defense team have a credible argument that so much of what's come out is going to precondition jurors against their client or that a lot of the public opinion on Harvey Weinstein has been shaped by stories that essentially put him on trial in the public eye before he had his day in court? So I think it's up to the judge to make sure that the trial is as fair and offers as much due process as possible. Historically, wealthy white men have not been at a disadvantage.

And if you need any example, you can look at all of the ways that Harvey Weinstein has evaded being in this exact courtroom. And so I think it's an important tension. Of course, Harvey Weinstein has a right to a defense. He has a right to due process. But I also think swinging it too far into Harvey Weinstein has been victimized by the system when he still has enormous resources at his disposal. And in the broader context of who is often disadvantaged by the criminal justice system, whether that's people of color, poor people, I think it would be a mistake to apply that larger societal critique as long as you're making sure that this case is being handled with as much procedural neutrality as possible. What else has Harvey Weinstein and his defense team been doing with all of the resources they have at their disposal? Well, you know, I had an

interesting experience when we went for comment for this New York Magazine story, Judah Engelmeyer, who is the charges and against women who have made other kinds of allegations. For example, it argues that one of the women accused him of rape because it, quote, got her an agent at CAA, which is a major Hollywood agency. There's also a section at the end that claims that Harvey has, quote, a huge heart. It lists some of his charitable contributions. The document says that part of Harvey Weinstein's social contributions that should be considered as he stands trial for rape and sexual assault is that he made many socially important commercial failures.

And some of the movies that are included there are movies about sexual assault in the criminal justice system and LGBTQ people. So that's what Harvey Weinstein's public relations team, as opposed to his legal team, is presenting in his defense. Very considerate of them to spend all that time on a PowerPoint. What are the consequences Harvey Weinstein's facing here? If Harvey Weinstein is convicted, he could spend a couple of years in prison, or if he's convicted of the most serious charge, he's potentially looking at a life sentence. Harvey Weinstein also is facing charges in Los Angeles that will carry their own penalties if he's convicted. And I believe there's an ongoing investigation in London as well.

And even if Harvey Weinstein wins all these court cases, do you think he already lost a bigger moral, social battle since the initial allegations against him led to so many more? You know, I've been on this beat for a long time, and I've thought a lot about why this was the story that was made possible that I had tried to do seven years earlier only because of what happened after the Harvey Weinstein stories came out. And this was about Charlie Rose? Yes. So, you know, a damn burst because of the reporting about Harvey Weinstein. And as I think about why it might have been the story that allowed so many other people to feel like they could tell their story, I think it might be because we couldn't attach to these famous actresses the same kinds of myths that we often attach to people who come forward. She's just

trying to be famous. She just wants money. She's lying because she regrets it. These are women with whom we already, the American public already has a kind of emotional relationship from watching them on screen and following their lives in People Magazine and Us Weekly and Instagram. And it's kind of tragic that other people were not believed. It is tragic that other people were not believed. But I think we attach so many myths to people who come forward about being assaulted that to have these people who we've never seen this side of them, we've never seen that kind of vulnerability, be the voice of it in the beginning, I think is really important. I thank those testifying for standing, not just for themselves, but for all of us who will never have even one day in court. Today is a day for us to honor how far we've come and how much we've endured to get here. I think it would be really meaningful if there were a criminal conviction in this case

against Harvey Weinstein because it would tell people that something is different from when he was investigated and even though there was a recording of him admitting to the assault, nothing happened. That said, you know, the rules of criminal procedure are really challenging.

They're really complex. There may be other trials. He might not be convicted in one. He might be convicted in another. But I don't think we can take any cultural change for granted. But I do think that the conversations are more nuanced, more complex. We have a greater range of stories.

We have greater amount of voices of people telling their stories. We've complicated it. We've ripped open some of these, the scar tissue that was hiding these open wounds. We have exposed some of the systemic levers that especially wealthy, powerful men use to cover up their behavior. Harvey Weinstein's obviously just one of them. And so I think there's no going back on that part of it. Irin Carmon is a senior correspondent at New York Magazine. I'm Sean Ramos for him. This is Today Explained. Thank you.