Weinstein trial: Prosecutors try to overcome image of 'harmless old man'

Harvey Weinstein enters a New York City courtroom with the aid of a walker in early January.

Jan. 30, 2020 12:06 PM PT

NEW YORK — Moments before opening statements in his landmark criminal trial last week, Harvey Weinstein entered the courtroom hanging onto another man’s arm, looking as if he’d collapse to the ground if left to walk on his own.

Moving slowly with a pronounced limp, the 67-year-old disgraced Hollywood titan was led to the defense table. Other days, he would use a walker to reach his seat.

As Manhattan Assistant Dist. Atty. Meghan Hast outlined the horrific acts Weinstein is accused of, she repeatedly described a very different version of the mogul — a hulking, towering figure who enjoyed an extreme height and weight advantage over the women he was accused of terrorizing.

“The man seated on that side of the courtroom, despite what your eyes are looking at, is not a harmless old man,” Hast said.

Through the first week of testimony at Weinstein’s sexual assault trial, prosecutors have continually asked witnesses to describe the mogul’s girth and physical stature in the early 1990s, 2006 and 2013 — the time frames in which three different women say Weinstein raped them in Manhattan.

Causing jurors to focus on images of a confident, 6-foot, 300-plus-pound version of Weinstein from back then, rather than the frail man struggling to stand on his own two feet now, could play a significant role in deliberations, legal experts say.

“If you’re not a fully functioning human, the judge or jury may make a conscious or subconscious calculation: that you can’t be held fully responsible for your actions,” said Wendy Murphy, a professor of sexual violence law at New England Law in Boston and a former sex crimes prosecutor.

Weinstein is charged with first-degree rape, two counts of predatory sexual assault, one count of first-degree sexual assault and one count of third-degree rape. He has denied all wrongdoing and his attorneys have argued that each alleged assault was a consensual affair.

Weinstein underwent spinal decompression surgery in December, just weeks before his trial was set to begin, leaving him bent over and reliant on a walker. The mogul has said the surgery was needed because he developed severe back pain after he was involved in an August 2019 car crash in Bedford, N.Y.

Bedford police, however, have said Weinstein was not hospitalized as a result of the crash and that there were no injuries reported to them on the day of the accident.

Four of Weinstein’s accusers have taken the stand in the last week, and prosecutors have asked each to contrast their own slight frames with the mogul’s. Pictures of the Miramax co-founder’s barrel-like build have been displayed on a projector between the jury box and the witness stand day after day, oftentimes dwarfing the women who were detailing their allegations just a few feet away.

As actress Annabella Sciorra recounted the night she says Weinstein forced his way into her apartment and raped her in 1993 or 1994, she described herself as a full foot shorter and nearly 200 pounds lighter than he was. At one point, prosecutors asked her to stand up and demonstrate why she couldn’t run past him to escape.

“He kept coming at me and I felt very overpowered because he was very big,” she said last week.

Tarale Wulff and Mimi Haleyi, who both say Weinstein raped them in his SoHo apartment in 2005 and 2006, respectively, gave similar descriptions of how the mogul used his height and bulk to back them farther into his residence, until they wound up trapped in a bedroom with him.

Wulff, who testified Wednesday, said she met Weinstein while she was working as a waitress at Cipriani’s in Manhattan in 2005. She claimed Weinstein, a friend of the venue’s owner, led her away from a VIP area and into an unused terrace section of the restaurant, where she said he masturbated under his clothes in front of her.

A few weeks later, after agreeing to what Wulff said she expected to be an audition at Miramax’s New York offices, she said he raped her.

“He was certainly bigger and heavier and weighed me down,” said Wulff, whose case is not among those charged because the crime is too old to prosecute.

Weinstein and his associates have denied the back surgery was timed to have any influence on the trial.

“It was a back problem that grew more painful and worsened with every step he took after that accident, which eventually led to the need for the surgery,” said Juda Engelmayer, a spokesman for Weinstein. “There is no strategy on this. Harvey would prefer to be healthier and walking without assistance.”

Weinstein was alone in his Jeep on the morning of Aug. 17 when he was involved in a crash in Westchester County, N.Y., according to Lt. Andrew Bellantone, public information officer for the Bedford Police Department. Weinstein’s car landed on its side, and he told police he was trying to avoid a deer in the roadway, Bellantone said.

Weinstein was not treated for any injuries on the scene, according to Bellantone, who described the incident as “a whole lot of nothing.”

A New York doctor did, however, affirm that Weinstein was “totally incapacitated” on a disability certificate signed shortly before the mogul underwent surgery last month, according to a document reviewed by The Times.

Legal experts said it is not uncommon for a defendant to try to appear nonthreatening or put distance between their current appearance and their image at the time of an alleged crime.

Murphy pointed to the 2005 criminal trial in which Michael Jackson was accused of molesting a 13-year-old boy. Jackson appeared one day in a Santa Barbara County court wearing pajamas and limping awkwardly. The larger-than-life pop star seemed small and childish in that moment, and mentally unwell, according to Murphy.

Bill Cosby was met with skepticism in 2017 when he revealed that he had gone blind in an interview published just one month before his trial on sexual assault charges in Pennsylvania began. The comedian, who faced a wave of accusations similar to those against Weinstein, claimed he’d woke up unable to see nearly two years beforehand. He was ultimately convicted of drugging and molesting a Temple University employee.

Murphy said that a defendant’s diminished physical and mental state — or the appearance of one — sometimes translates into reduced charges or punishment, even when a defendant is found guilty.

“If I had a nickel for every one of those cases in my career where a guy was perfectly fine and then he shows up with wheelchair or cane,” Murphy said, adding there is usually no way to know whether the defendant is feigning their condition.

The same will likely remain true in Weinstein’s case. Despite the potential of his appearance to influence the jury, any evidence or argument around the necessity of his surgery would almost certainly be inadmissible unless he chooses to testify, according to Dmitriy Shakhnevich, a criminal defense attorney who now teaches at the John Jay School of Criminal Justice in Manhattan.

Whether or not the surgery was strategic, Shakhnevich warned that the timing could backfire, regardless if jurors become skeptical that Weinstein is seeking to manipulate them.

“I don’t know if it’s going to win much sympathy,” Shakhnevich said. “Some folks think that this is a timed surgery, that the medical procedure was timed with the trial.”

Queally reported from New York and Newberry from Los Angeles.