The former film producer Harvey Weinstein is now on trial in the State Supreme Court in Manhattan for first-degree rape, third-degree rape, first-degree criminal sexual act, and predatory sexual assault. Weinstein contends that the incidents were consensual. The first day of the trial began with Weinstein entering the courthouse in lower Manhattan with a walker. It ended with prosecutors in Los Angeles announcing that they had charged Weinstein with raping one woman and sexually assaulting another in 2013.
Ronan Farrow has reported extensively for The New Yorker on allegations against Weinstein and, more broadly, on sexual harassment and abuse. His best-selling book “Catch and Kill” and a podcast of the same title document the efforts of Weinstein and his agents to silence his accusers. In 2018, Farrow’s reporting on Weinstein for the magazine won the Pulitzer Prize for Public Service, an honor shared with the Times’ Jodi Kantor and Megan Twohey. I caught up with Farrow in between recording sessions for his podcast to talk about the trial, where it’s going, and what it could mean for the #MeToo movement.
Ronan, considering how many women have spoken out against Harvey Weinstein, describing their accusations of sexual harassment, abuse, and, rape, why is the case in New York as confined as it is?
Dusting off my lawyer hat here: there’s a lot of obvious reasons you see a limited number of claims in any sex-crimes trial. There’s jurisdiction, of course—New York is only going to try criminal conduct that took place in-state. Another big limiting factor is the statute of limitations. In New York, the statute of limitations on rape was only eliminated in 2006, so prosecutors were exclusively looking at claims that either occurred after that date or weren’t time-barred at that point. And then, from that limited pool, prosecutors are looking at which claims are going to have the makings of a winning case. How strong a witness is this going to be? Do they have any compelling evidence? How consistent has their account of the allegation been over the years? And so on.
Weinstein could face twenty-five years in prison—or even life. He’s charged with forcing a woman named Mimi Haleyi to allow him to perform oral sex on her, in 2006. He is also charged with raping a woman at a hotel, in 2013. In court documents, that woman is unnamed, for reasons I hope you will explain.
It’s fairly unusual for somebody to remain anonymous this far into a case like this. I don’t believe the judge has spoken to whether he’ll maintain that—whether they’ll have her take the stand using a pseudonym or a first name, as you sometimes see with child victims, for instance. I imagine they’re keeping her anonymous for the time being not only due to the general sensitivity of sexual-assault claims but also because of the public nature of this particular trial. Weinstein has, in the past and already in this case, made a habit of using the press to disparage his accusers, and I imagine that this accuser and her attorneys want to spare her that as long as possible. I would guess that Weinstein’s team is aware of her identity. They’d have to be, to mount a fair defense. This sometimes happens in our reporting, too, where someone wants to be anonymous publicly but agrees to be identified to the subject of the reporting, in the interest of fairness.
How strong is the D.A.’s case? What kind of defense strategy do Weinstein and his attorneys have?
Weinstein has previewed his strategy pretty extensively. His legal team has circulated a fifty-seven-page PowerPoint, which Irin Carmon reported on in New York magazine. He’s going to work to discredit the accusers—both on the stand and in the press—and argue that they’re either fabricating or recasting events for personal gain or exposure. Last week, the prosecution sought to have the judge issue a gag order on Weinstein’s attorneys, to stop them from advancing such arguments in the press. The judge denied that request, but he did chastise Weinstein’s attorneys for publicly disparaging witnesses. That seemed to be a response to a comment one of Weinstein’s lawyers, Donna Rotunno, made about Annabella Sciorra, saying that she’d worked all her life as an actress and implying that she’d be acting on the stand.
The prosecution plans to call as witnesses several women who have accused Weinstein of harassment, assault, or rape, though they are not accusers in this case, specifically. What effect do you expect that will have on the trial?
A lot will rest on the witnesses whose claims are time-barred but who will be testifying to establish a pattern. In the Bill Cosby case, the first trial didn’t include much of that kind of testimony, and ended in a mistrial. During the retrial, they allowed additional women to testify about his pattern of behavior, and the prosecution prevailed. It’s a fine line—you’re not supposed to allow in propensity evidence; jurors are not supposed to rely on a theory of “he did other crimes before, so he must have done these ones.” But you can introduce more targeted information that speaks to an M.O., a specific approach that would tend to establish intent or awareness of the criminality of the conduct. That’s what Sciorra and others with claims that are barred by the statute of limitations are expected to testify to, and I think it will play as essential a role here as it did in the Cosby case. You can see how much of a priority it was for the prosecution—they actually re-impanelled a grand jury to add Sciorra’s testimony and the predatory-sexual-assault charge to the case.
What are the risks for the prosecution? Where is the D.A. vulnerable?
As is so often true in cases like this, there’s going to be little, if any, forensic evidence. These are crimes people are reluctant to talk about, so often you’re dealing with witnesses who didn’t disclose their claim immediately, and perhaps only disclosed part of it when they first began to describe it to people. Weinstein is going to present evidence of ongoing, friendly contact with accusers after their alleged assaults. That’s a pretty common facet of sexual assault, especially when someone occupies a professional position like Weinstein’s, where the women in question essentially had to deal with him afterward, to continue to pursue their livelihoods. But some jurors may be sympathetic to his arguments. He’s also going to suggest or outright argue that these women are doing this for personal gain, though I think that will be challenging, given the numerous ways in which this kind of exposure brings stigma and pain. Prosecutors will have to be careful about opening themselves up to any arguments that witnesses had contact or coördinated their claims, which you can imagine might come up in a cultural climate in which survivors of sexual assault have been banding together and supporting one another. Weinstein’s attorneys have tried to introduce questions about the fairness with which the N.Y.P.D. handled the case, though it seems like the judge isn’t going to allow them to call to the stand a detective they’ve tried to discredit.
I know you’re neither an advocate nor a fortune-teller, but what do you think will happen?
If only I had a crystal ball—I’d break so many more stories for you! I will say that a number of attorneys well versed in New York sex-crimes cases have told me that they think the prosecution has significant advantages. Obviously, one goal of jury selection has been to root out anyone with preconceptions about Weinstein. Last week, we saw a number of jurors sent home because they said they’d read my book—ideally, you don’t want a juror in a case like this to be familiar with any prior reporting, however fair. But it’s going to be pretty unrealistic to find anyone with zero exposure to the idea that there have been many, many allegations of rape and harassment against Harvey Weinstein. So you may wind up with a jury that’s receptive to the charge with the greatest maximum sentence—the predatory-sexual-assault charge, which rests on his behavior being part of a course of conduct or a pattern.
The authorities in New York considered charging Weinstein long before this, but did not. What is your analysis of the way Cyrus Vance, Jr., the D.A. in Manhattan, has handled the Weinstein investigations?
Cyrus Vance, Jr., has taken a lot of heat in the past few years for having an extremely conservative posture when it comes to high-profile defendants with vigorous legal teams. Lawyers who work criminal cases in New York have told me that they see a stark division between the D.A.’s charging of regular folks and celebrities. You saw that, for instance, in how Vance dropped the 2011 case against Dominique Strauss-Kahn. And you saw it in the 2015 case of Ambra Battilana Gutierrez, when investigators had a tape of Weinstein admitting to groping and then Vance’s office decided, under heavy pressure from Weinstein, not to proceed. There are cops on the force who call that kind of conservatism “corrupt,” and you can see what they mean. Lawyers for Weinstein, for example, did a lot of smearing of his accuser in the Gutierrez case and a lot of donating to Vance’s campaigns. (Vance has since said he’ll no longer take money from attorneys with cases before him.) What sources in the D.A.’s office tell you when you talk to them about this is that these are pragmatic decisions about the likelihood of winning, which makes sense. When you know that someone has unlimited legal resources and the press is going to be scrutinizing the outcome, you can see how prosecutors would have incentives to be more careful than in a less public and contentious case. Whether that’s sound judgment or corruption or a mix of both, I’ll leave to readers.
We’re already seeing all the dynamics that I just mentioned play out in the current trial. The D.A. was understandably conservative in selecting which charges to bring. And Weinstein has shown his characteristic aggression in chipping away at the case. We reported on how one of the catalysts for the reopening of the Weinstein case was Lucia Evans, whose allegation we reported on in T*he New Yorker. That was a strong claim in a number of respects, but Weinstein’s legal team deployed some very aggressive tactics to get it dropped, including getting a detective who’d worked the case removed for alleged bias and arguing that his behavior had “tainted” the entire prosecution. Sources in the D.A.’s office still privately say that they found her credible, and essentially dropped her because they were being maximally conservative about safeguarding the charges associated with the other women in the case.
Just as the trial in New York was opening, we heard about more charges, in Los Angeles. Can you describe that case, and is it stronger than the case in New York?
The Los Angeles District Attorney’s office has been developing this case for a long time, and has put a lot of resources into it. You’re looking at similar allegations of rape and assault there, though the sentencing exposure in L.A. is, as of now, less severe than it is in New York, because they aren’t advancing something similar to the New York case’s predatory-sexual-assault charge, which could result in a life sentence. That may change, however. Prosecutors in L.A. have asked sources of mine, whose alleged assaults did not take place in Los Angeles, if they’d testify—it’s unclear under what legal theory. And sources in the investigation have said that they’re actively seeking additional charging opportunities. One interesting thing is how the two cases might intersect—if Weinstein is convicted of a crime in New York that took place prior to the alleged crimes at issue in the Los Angeles case, that could be an opportunity for either enhanced sentencing or an additional charge, where the prosecutors in Los Angeles use a New York conviction as a predicate to establish a pattern of behavior. So it’s a serious case and will continue to develop for some time to come.
Ronan, we’ve talked about what the Weinstein trial is here in legal terms, in a sense. But what does the trial mean? And how much will the outcome affect its meaning?
Well, I think there’s a constituency of survivors and activists for whom the case carries profound meaning. It’s a test of a lot of systems that have failed a lot of people for a long time. My relationship with it is more reportorial. Any outcome will be revealing about these kinds of cases and our ability to hold powerful people to account in the criminal-justice system. And it’s only one piece of a larger puzzle involving multiple jurisdictions.
I know you stay in touch with many of the women who were brave enough to talk with you two years ago for your groundbreaking pieces on Weinstein and what became the #MeToo movement. How are they thinking about the trial? What does it mean to them?
Everyone has a different experience of a moment like this. For those involved in the trial, I think it’s nerve-shredding. There’s a sense that the witnesses are putting themselves into the line of fire, given the tactics Weinstein has been known to use to discredit people who speak out against him. For some of them, it’s bringing back memories that are traumatic. There’s certainly also, in the wider community of women with allegations to whom I’ve spoken, a sense of vindication. Some of the sources in our stories lived with their claims privately for years and feel this was a long time coming.