Smiling Harvey Weinstein files motion to REMOVE judge from his rape trial after he threatened to jail him for texting in court as day two ends with a pool of 66 potential jurors
- The shamed producer has also complained about press attention and being scrutinized for using his walker
- The motion was filed on the day 90 more potential jurors were dismissed from the case, with some saying reading Ronan Farrow's book means they could not give Weinstein, 67, a fair trial
- Weinstein briefly set aside his walker Wednesday and appeared to stumble on the courthouse steps
- New pools of prospective jurors will be summoned to court each morning in the coming days
- Selecting the jury for the producer's highly publicized trial is likely to be a painstaking, weekslong process
- It comes as Weinstein's defense team tried to ban celebrity attorney Gloria Allred from his trial on Wednesday
- Allred represents some of Weinstein's accusers, including former production assistant Mimi Haleyi
- Weinstein's lawyer said she should be banned because the defense is considering calling her as a witness
- Allred was not in court Wednesday when Judge James Burke denied the defense team's request
Harvey Weinstein filed a motion Wednesday to remove the judge from his rape and sexual assault trial after arguing that the justice's comments about him texting in court reveals prejudice as day two of jury selection ended with a total of 66 potential jurors.
The shamed producer, who stumbled up the stairs as he arrived at a Manhattan courthouse, has also complained about press attention and being scrutinized for using his walker.
In a legal document filed Wednesday, Weinstein's legal team claim he has been treated unfairly by the court, in particular having to deal with the 'daily gauntlet of reporters, gawkers and negative backlash'.
Judge James Burke threatened Weinstein with jail for texting in court on Tuesday, after he turned up with four devices and was repeatedly warned not to use them. 'Is this really the way you want to end up in jail for the rest of your life, by texting in violation of an order? Is it?', he asked.
The new seven-page motion reads: 'We write to seek recusal of Your Honor from this case based on the prejudicial and inflammatory comments made by the Court to Mr. Weinstein yesterday morning, which received widespread press attention.
'Faced with extreme and unfairly prejudicial negative publicity both pre-trial and now during jury selection, (Burke) has refused the defendant's requests for additional necessary procedural safeguards.'
It also suggests an issue with the judge's decision to not allow a requested 'cooling-off period' in light of the new case filed in Los Angeles. And mentions the 'negative slant of the stories being published', specifically referencing one online commentator who wrote in response: 'Maybe they'll give him Epstein's cell.'
The judge has not ruled on the latest request to recuse himself.
The motion was revealed on the day 90 more potential jurors were dismissed from the case, with some saying reading Ronan Farrow's book means they could not give Weinstein, 67, a fair trial. Pulitzer Prize winner Farrow's book tells the story of his quest to expose Weinstein.
Another said they had a friend who had an encounter with the former Hollywood mogul. In all, 66 prospective jurors have advanced to the next stage after two days of what is expected to be a lengthy selection process.
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Harvey Weinstein filed a motion Wednesday to remove the judge from his rape and sexual assault trial after arguing that the justice's comments about him texting in court reveals prejudice. He was seen above smiling as he left court on day two of jury selection
Weinstein leaves the courthouse above on Wednesday. In a legal document filed Wednesday Weinstein's legal team claim he has been treated unfairly by the court
Support: Weinstein holds on to one of his team as he makes his way down the steps outside the Manhattan courtroom on Wednesday
The Hollywood mogul stumbled up the stairs as he arrived at a Manhattan courthouse on Wednesday
Weinstein complained about the 'daily gauntlet of reporters, gawkers and negative backlash'. He is seen above leaving court Wednesday
A court sketch depicts potential jurors raising their hands and explaining why they can't serve on the jury of Weinstein's sexual assault trial
Weinstein also tried to ban celebrity attorney Gloria Allred from the trial.
Allred represents some of Weinstein's accusers, including former production assistant Mimi Haleyi who is one of the two women Weinstein is charged with assaulting in New York.
His lawyer Damon Cheronis told the court Allred should be banned from the courtroom because the defense is considering calling her as a witness.
He said: 'Ms. Allred should not be allowed to sit in court, watch that testimony and share that testimony with her clients. I'm not trying to attack Ms. Allred, I'm trying to protect Mr. Weinstein's right to a fair trial.'
Manhattan Assistant District Attorney Joan Illuzzi had objected to Weinstein's team's request, telling the court Allred 'would absolutely not' share details.
She added: 'Anything reporters write will be available to witnesses. What you're saying is that this shouldn't be a public trial.'
Cheronis replied: 'The press can write what they want. I'm not calling them as witnesses – that's the difference.'
In all, 66 prospective jurors have advanced to the next stage after two days of what is expected to be a lengthy selection process
Lawyer Damon Cheronis argues in front of Judge James Burke saying Allred should be banned from the courtroom because the defense is considering calling her as a witness
Harvey Weinstein walks up courthouse steps as his attorney Donna Rotunno holds his walker at the start of the day's proceedings Wednesday. He has shuffled into court on a walker since his trial began on Monday after recent back surgery and appeared to stumble on Wednesday
Weinstein arrives at New York Criminal Court for his sexual assault trial in Manhattan Wednesday with his lawyer Rotunno
Attorney Gloria Allred speaks to reporters outside court on Wednesday. Allred represents some of Weinstein's accusers, including Mimi Haleyi, one of the women Weinstein is charged with assaulting. Weinstein tried to ban her from the trial
Ninety more potential jurors were dismissed from the case, with some saying reading Ronan Farrow's book, pictured, means they could not give Weinstein, 67, a fair trial
Allred was not present inside the courtroom Wednesday when Judge Burke denied the defense team's request.
The judge denied the request and said there was too much uncertainty over whether Allred would take the stand to prevent her from observing testimony.
Speaking outside the courtroom Wednesday Allred said: 'If called as a witness, I intend to fully protect my client's right to confidentially communicate with me, which is protected by the attorney client privilege confidentiality.
'I cannot be compelled to answer anything that is confidential communication with my client or that is work product.'
Just 30 potential jurors from a potential pool of 120 remained at the end of day two of jury selection, a process that could take weeks.
The first 120 potential jurors appeared the court Tuesday and were whittled down to 36 meaning there are currently 66 people advancing in the process.
They were given questionnaires featuring 72 questions and will report back for further questioning on January 16.
The questionnaire asks, among other things, if they could ignore media coverage and decide the case based only on evidence heard in court. They were also told the trial will last six weeks, which could weed out many parents, college students and others with pressing day-to-day obligations.
Scroll down for the full questionnaire handed to potential jurors
Jury selection is expected to stretch on for at least two weeks, far longer than for a non-celebrity trial, with lawyers delving into each potential juror's knowledge and opinions about the case. Twelve jurors and six alternates need to be selected.
'The defense team is concerned about widespread media coverage of sexual assault and harassment claims against Weinstein, and of jurors prejudging the case,' said Cornell University law professor Valerie Hans. On the other side of the case, 'prosecutors are wary of prospective jurors who might reveal a predisposition to blame the victims, even in this age of #MeToo.'
In picking a jury, defense lawyers typically want jurors who can 'think outside of the box' and look skeptically at a prosecution case, while prosecutors seek people with a linear and methodical mindset, said Thaddeus Hoffmeister, a jury consultant and University of Dayton law professor.
For insight into prospective jurors' thinking, lawyers have taken to scouring their public social media postings, Hoffmeister said, which is fine under court rules as long as the lawyers don't follow or friend them or send them messages.
The prosecutors who put Bill Cosby in prison for sexual assault last year, after a hung jury the year before, said they sought to put people 30 and younger on the jury, as well as older people who had children that age, because people in those age groups seem more likely to keep up with the evolving cultural conversation on sexual assault.
During Tuesday's jury selection potential jurors were also read a list of names that could come up at trial, including actresses Salma Hayek, Charlize Theron and Rosie Perez.
Weinstein's lawyers unsuccessfully tried to delay jury selection in light of the new case filed in Los Angeles, asking for a 'cooling-off period' to allow the publicity to subside.
But Judge Burke expressed confidence that the jurors would know that defendants are presumed innocent until proven guilty, and he pressed on.
Opening statements shouldn't be expected before the Martin Luther King Jr. holiday on January 20, the judge said.
Weinstein is charged in New York with raping one woman in a hotel room in 2013 and forcibly performing a sex act on Haleyi in 2006. He could get life in prison if convicted.
In the Los Angeles case, which will be tried later, he is accused of sexually assaulting two women on back-to-back nights in 2013.
The former studio boss behind such Oscar winners as 'Pulp Fiction' and 'Shakespeare in Love' has said any sexual activity was consensual.
Since 2017, more than 80 women, including many famous actresses, have accused Weinstein of sexual misconduct dating back decades.
The trial is expected to last at least six weeks.
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