Harvey Weinstein will not be giving evidence in his own defense at his rape trial in New York, announcing he had decided to forego the witness stand after he huddled with his legal team for half an hour on Tuesday.
Courtroom 99 at the New York supreme court held its collective breath as the fallen movie mogul, his lead lawyer, Donna Rotunno, and other members of his legal team retired to consider the critical question of whether he would subject himself to questioning in open court.
But when they returned, Damon Cheronis, one of the defense lawyers, told the court: “We discussed it with Mr Weinstein. He is not guilty and he is not going to be testifying.”
Judge James Burke asked Weinstein directly whether he agreed with that, and Weinstein said he did.
Weinstein’s decision to remain aloof from the proceedings in effect brought to an end the defense phase of the trial, and with it the evidence that will be presented to the jury of seven men and five women.
Later this week, defense lawyers followed by prosecutors will present closing arguments, leaving the jury to deliberate on its verdict early next week.
Despite his silence, Weinstein, 67, has been a dominant presence throughout the five weeks of the trial so far. He has been in court every day, usually shuffling in on his now trademark walking frame with yellow tennis balls at its feet. The defendant has maintained a largely impassive stance at the defense table. At points in his accusers’ testimony, however, he has permitted himself a brief laugh or shrug of his head.
Only occasionally has he been heard speaking, responding to reporters’ questions outside the courtroom. At the start of the trial, he said he was feeling “very confident” about its outcome because “I got great lawyers”. Another time he was asked whether one of the witness’s descriptions of his deformed body and genitals was accurate, and he sarcastically replied: “Perfect.”
Over the past few days, during the defense stage of proceedings, Weinstein’s legal team has sought to discredit and undermine the accounts given to the jury by the six women who have testified. In particular, Rotunno and her colleagues have homed in on one of the two central accusers in the case, a 34-year-old woman whom the Guardian is not naming because it is unclear whether she approves being identified.
Earlier this month the woman testified that she was raped by the defendant in March 2013 in a hotel room at the Doubletree hotel in midtown Manhattan. After the alleged rape, the accuser said, she found a syringe in a trash can that she later found out was medicine for erectile dysfunction that Weinstein must have injected himself with.
The woman’s allegations are key to the prosecution case against Weinstein, who faces two counts of rape flowing from her account. He also faces one count that he forced oral sex in 2006 on a then Project Runway production assistant, Miriam Haley, and two counts of predatory sexual assault that require sex crimes to be proved against multiple women and carry a top sentence of life in prison.
Weinstein has pleaded not guilty and has insisted that all sexual encounters were consensual. He has now been accused of a range of sexual misconduct, from harassment to rape, by 105 women.
Weinstein’s lawyers appear to have calculated that the rape accuser is the weak link in the prosecution strategy. In a highly unusual move, the New York district attorney’s office decided to make a central pillar of the case a witness who has admitted to maintaining consensual sexual relations both before and long after the alleged attack happened.
In 2017, four years after she said she was raped at the Doubletree, the accuser sent an email to Weinstein saying: “I love you, I always do. But I hate feeling like a booty call. ;)”.
Sexual crimes experts emphasize that rape is often committed by men who know their victims, and that intimate relations – including sexual ones – can follow violent acts. Yet Weinstein’s lawyers have made maximum use of emails between the former producer and the woman to suggest that she was either lying or had unreliable memories.
On Tuesday, the defense called under subpoena a friend of the accuser in an attempt to undermine her account further. Thomas Richards, an entertainment agent, had been with the accuser in the Doubletree hotel at the time of the alleged assault and had attended a breakfast with her and Weinstein in the lobby cafe shortly after she said the rape had occurred.
Under questioning by a defense lawyer, Richards said she had looked “normal” and “her everyday self” at the table. He recalled nothing unusual about the way his friend appeared or behaved in front of Weinstein, and said nothing stood out about her dress, complexion or hair, or eyes.
“Was there any indication to you whatsoever that she was in any sort of distress?” Cheronis asked. The witness said there was not.
The defense is now focusing on the rape accuser, seeking to puncture a hole in the case against the defendant. On Monday, Talita Maia, a Brazilian model, was also called under subpoena to give evidence.
She too said that the woman had seemed “like herself” at the Doubletree breakfast that she also attended soon after the alleged rape. She told the jury that her then friend had once called Weinstein her “spiritual soul mate”.