A Los Angeles judge ruled on Wednesday that five additional witnesses will be allowed to testify against Harvey Weinstein at his upcoming rape trial, but excluded testimony from actresses Rose McGowan and Daryl Hannah.
Prosecutors wanted to call 15 witnesses to testify about the producer’s “prior bad acts,” but the judge excluded 10 of them.
The judge will also allow jurors to be told of Weinstein’s New York conviction involving the sexual assault of Miriam Haley, though Haley will not be called to testify in Los Angeles.
Weinstein is facing 11 counts of rape and sexual assault pertaining to five alleged victims. The prosecution wants to call the additional witnesses to show that Weinstein had a propensity to commit sex crimes.
Mark Werksman, his defense lawyer, argued Wednesday that the witnesses would confuse the jury and serve merely to blacken his reputation.
“The jury will be tempted to want to punish him for all the things they heard, whether they’re charged or not,” Werksman argued.
Paul Thompson, the lead prosecutor, argued that it was not the D.A.’s fault that so many women were lining up to testify against Weinstein.
“There is one person in this courtroom who is responsible for that,” he said. “That is Mr. Weinstein’s responsibility. Mr. Weinstein is the one who committed all of these offenses against so many women over so many years.”
The D.A.’s motion and the defense’s opposition remain under seal. The witnesses were identified in court only by first names, though some were readily identifiable.
Werksman said the prosecution was seeking to call “Daryl.”
“The prosecution intends to introduce her testimony with the inflammatory purpose of trying to suggest that this man is so despicable, he would attempt to rape America’s sweetheart — the mermaid from ‘Splash,’” Werksman said.
Hannah has told her story to Ronan Farrow of the New Yorker, alleging that Weinstein twice pounded on her hotel room door, and that once she was forced to escape out the back.
Werksman argued that Weinstein wasn’t even accused of a crime in that incident, making it irrelevant to the case.
“She’s window-dressing — so the jury will hate Mr. Weinstein a little more than they already hate him,” he said.
Werksman also referenced “Rose,” saying that the prosecution wanted her to testify that Weinstein had forcibly performed oral sex on her in a hotel hot tub. Thompson said the incident occurred in 1997.
McGowan was famously among Weinstein’s first public accusers, alleging that Weinstein assaulted her at the Sundance Film Festival in 1997.
Lench ruled that any testimony pertaining to conduct prior to 2000 would not be allowed, thus excluding McGowan’s testimony.
The issue of “prior bad acts” witnesses has been one of the most important factors in Weinstein’s first trial, in New York, and in Bill Cosby’s two trials in Pennsylvania. In the first Weinstein trial, three women were allowed to testify to uncharged sexual assaults.
Weinstein is now appealing his conviction — which sent him to prison for 23 years — partly on grounds that the additional testimony prejudiced the jury. An appeals court held a hearing on the matter in December, and a few of the justices appeared sympathetic to the defense argument.
Werksman referenced the New York appeal in his argument, warning that allowing too many “prior bad acts” witnesses would make any conviction in Los Angeles ripe for appeal.
“This is a kamikaze run by the People,” he said. “Maybe they’ll blame the (D.A.’s) appellate unit when the appeals court reverses the conviction.”
Thompson countered that the Legislature has allowed such witnesses for a good reason, and that courts have repeatedly upheld their use in California trials.
“It’s constitutional,” he said. “It’s permissible.”
Lench sought to pare down the list, allowing prosecutors to call women identified in court only as Natassia, Miss I., and Kelly S. Prosecutors will also be allowed to call two additional women, though Lench gave the D.A.’s office the opportunity to choose those witnesses from a list of seven.
Werksman was visibly frustrated by the ruling, arguing that the prosecutors had sought a high number as a “feint,” in order to make the judge’s eventual ruling appear like a reasonable compromise.
“This is going to become a circus,” he said. “I would beg the court to reconsider.”
The judge said the parties are anticipating beginning the trial in September. The next hearing was set for June 10.