Harvey Weinstein defense to cite ‘loving emails’ accusers sent after alleged attacks

Harvey Weinstein‘s defense attorneys on Tuesday signaled their intent to highlight “dozens and dozens and dozens of loving emails” sent by accusers to the producer after he is alleged to have sexually assaulted them.

With jury selection done, the New York trial is set to have opening arguments on Wednesday. Six women are expected to testify that Weinstein sexually assaulted them. Weinstein is charged with crimes related to two of the six women, and the rest are being called in support of prosecutors' efforts to demonstrate a pattern of sexual predation.

“What we will counter with are their own words, where they describe loving relations, sensual encounters with Mr. Weinstein,” defense attorney Damon Cheronis said during oral arguments Tuesday. “Mr. Weinstein is described as someone they care about both before and after the alleged sexual assault.”

“Another complaining witness who claims Harvey Weinstein sexually assaulted her sent him an email wanting to introduce him to her mother,” Cheronis argued at another point, though he never specified to whom among the six he was referring.

It's been more than two years since bombshell reports from The New York Times and The New Yorker magazine triggered an avalanche of sexual assault allegations against the once-indomitable Hollywood producer, reducing him to a pariah and turning the #MeToo hashtag into a movement that forced a reckoning among powerful men across American industries.

More than 80 women have come forward since those news articles were published in October 2017 to detail a spectrum of alleged sexual aggression by Weinstein, ranging from sexual harassment to forcible rape

Weinstein has pleaded not guilty to all charges against him and denied ever engaging in non-consensual sex with anyone.

Following multiple indictments, a changing series of criminal charges and complaining witnesses, three sets of defense attorneys, a lead detective thrown off the case, and midstream changes to the prosecution's team, opening arguments are scheduled to get underway on Wednesday morning.

The witnesses

Weinstein stands charged with raping one still-unidentified woman in a Manhattan hotel room in 2013 and performing a forcible sex act on a different woman, who has since identified herself as former Weinstein production assistant Mimi Haleyi, in 2006.

In addition to the testimony of those two women, three more women who have not been publicly identified are expected to testify to similar alleged sexual assaults by Weinstein, for which he has not been charged, as prosecutors seek to show a pattern of predatory behavior.

At a closed hearing earlier this year, Manhattan Supreme Court Judge James Burke allowed the introduction of three “prior bad acts” witnesses — women who claim Weinstein sexually assaulted them but whose accusations fall outside the statute of limitations for prosecution, according to court documents that reference the decision. In New York, such witnesses are known as “Molineaux” witnesses, in reference to a landmark 1901 New York State Court of Appeals decision.

While these three women have not been publicly identified either, court papers indicated that “Jane Doe 1” said she was sexually assaulted by Weinstein in a New York hotel in 2004; “Jane Doe 2” said she was assaulted at Weinstein's New York home in the summer of 2005; “Jane Doe 3” claims she was assaulted in February 2013 at a Beverly Hills hotel.

A sixth woman, “Sopranos” actress Annabella Sciorra, is expected to testify in support of the state's claim that Weinstein is a sexual predator. Sciorra claims Weinstein raped her in her Manhattan apartment in the winter of 1993-94. Predatory sexual assault requires that prosecutors prove to a jury that Weinstein seriously sexually assaulted at least two women.

The charges include: first- and third-degree rape for the alleged 2013 NYC hotel attack; one count of criminal sexual assault based on Haleyi's 2006 account; and two counts of predatory sexual assault, one for each complaining witness. These two top charges each carry a max life sentence if convicted.

Prosecutors remained circumspect on Tuesday about their own opening arguments, but have said in court papers that they intend to call Dr. Barbara Ziv, a forensic psychiatrist with an expertise in the behavior of sexual assault victims whose testimony kicked off the prosecutors' case in Bill Cosby's Pennsylvania sexual assault trial last year.

‘Counterintuitive' behavior

By testifying first in the Cosby trial, Ziv helped inoculate the accounts of complaining witness Andrea Constand and five “prior bad acts” witnesses in that trial from dogged attempts by the defense to discredit the women.

Ziv testified that “the vast majority of victims of sexual assault do not report to authorities,” and that sexual assault reporting can be delayed “from days to weeks to months to years.”

She testified to how common counterintuitive behavior is in victims of sexual violence and how they rarely act the way you would think they would.

“Most people don't fight back, don't say anything, and don't, you know, immediately, when it's over, don't jump up and leave,” Ziv said. “They are in a state of shock, that's how they describe it.”

Ziv will face a formidable foe in Elizabeth Loftus, a veteran expert witness for the defense on the malleability of human memory who has testified for decades in dozens of high-stakes criminal trials. Loftus' testimony in the 1980s about recovered memories helped acquit a California couple who had been charged with sexual abuse of nine children at their day care center, the McMartin preschool.

She has also testified in the criminal trials of O.J. Simpson, Oliver North and the Los Angeles Police Department (LAPD) officers tried in the Rodney King beating. While allowing Loftus and another memory expert in as defense witnesses in Weinstein's trial starting next week, Judge Burke also placed restrictions on the topics about which they could testify.

The jurors

The jury selected consists of seven men and five women. Six of the seven men are white and one is African American. Three of the women are African American — with one sharing African American and Latino heritage — and two are white.

Defense attorneys have vigorously contested the inclusion of one of the jurors, who acknowledged under questioning during the “voir dire” part of jury selection that she has written an upcoming novel about a trio of young women who deal with life and love in the 1980s, including “predatory older men.” Defense attorneys have claimed that the female juror was evasive during jury selection, while prosecutors note she included the phrase “novel-writing” among her hobbies on a prospective juror questionnaire.

Manhattan Supreme Court Judge Burke indicated in court on Tuesday that he was still considering defense concerns about this juror — though it remained unclear what, if anything, he intended to do about those concerns.

Among three alternate jurors chosen to complete jury selection, one is a white man, one is an African American woman and a third is a Hispanic woman.

California charges

Meanwhile, in a separate, bombshell indictment announced on the first day of his trial earlier this month, Los Angeles prosecutors charged Weinstein with raping a woman at a Los Angeles hotel on Feb. 18, 2013, after forcing his way inside her room, and then sexually assaulting a second woman in a Beverly Hills hotel suite the next night.

He is facing up to 28 years in prison on charges of forcible rape, forcible oral copulation, sexual penetration by use of force and sexual battery if convicted in that case.

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One of the two women Weinstein is alleged to have attacked in California is the same woman expected to testify as a “prior bad acts” witness in the New York trial.