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 

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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 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

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

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

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

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

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

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

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

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

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

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

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

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  

Why the jury selection process will take up to two weeks and how they will be selected

Selecting the jury for the Hollywood mogul's rape and sexual assault trial is likely to be a painstaking, weekslong process, made complicated by the high stakes, heavy publicity and public revulsion toward him. 

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. Opening statements shouldn't be expected before the Martin Luther King Jr. holiday on January 20, the judge said.

The prospective jurors were given questionnaires asking, 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. 

Jury questionnaires are commonly used to identify subject areas like their knowledge of and potential links to the case or any prior experiences with law enforcement that can then allow follow-up questions back in the courtroom before selection.

'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.' 

Prospective jurors were introduced as a group to Weinstein and were read a list of names that could come up at trial, including actresses Salma Hayek, Charlize Theron and Rosie Perez. 

120 potential jurors appeared before the court Tuesday - 36 advanced to the next stage of the process. A further 120 appeared Wednesday with 30 being selected to continue.

New pools of prospective jurors will be summoned to court each morning in the coming days - around 120 per day will be called.

A jury summons was sent to 2,000 New Yorkers - five times the number for a typical trial.

Experts said lawyers for Weinstein and the prosecution would need to be wary of jurors who may try to mask their bias in order to serve on a headline-grabbing trial. 

Some jurors may seek to use the trial as a means of advancing a personal cause, a concern in a case that has become a flashpoint for ending sexual harassment.  

Weinstein in October lost a bid to move the trial to suburban Long Island or to Albany, New York state's capital. He said intense media scrutiny made it impossible for jurors to give him a fair trial in Manhattan.

The defense asked at Monday's hearing that the jury be sequestered, a request the judge denied. 

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Salma Hayek, Charlize Theron and Rosie Perez: The big names that could come up during the trial

Prospective jurors were read a list of names that could come up during the trial of Harvey Weinstein either as witnesses or who could be referenced as part of proceedings. These included actresses Salma Hayek, Charlize Theron and Rosie Perez.

Hayek claimed in December 2017 she was harassed and propositioned by Weinstein for close to a decade. 

During an interview with Oprah, Salma claimed that Harvey threatened to 'break her kneecaps', after she refused his advances during filming for the 2002 film Freida.

Salma Hayek
Charlize Theron
Rosie Perez

Jurors were read a list of names that could come up during the trial, including, from left to right, actresses Salma Hayek, Charlize Theron and Rosie Perez 

Theron blasted Weinstein in December last amid claims he told aspiring actresses she had slept with him to get acting roles. 

The Bombshell actress says he 'would pit women against one another', adding: 'He was really, really good at that. There was no limit to him.'  

Oscar winner Theron, 44, told The New York Times Weinstein also lied when it came to claims Renée Zellweger had slept with him.

She added: 'There was a lot of, like, 'Well, I'm talking to Gwyneth for this movie …One of his lines was that Renée [Zellweger] and I slept with him to get jobs. 

'There was no limit to him. Even in the sexual favors, he would still pit us against each other.'

Actress Annabella Sciorra, best known for her role on HBO's The Sopranos, has said Weinstein raped her in her Manhattan apartment in 1993. 

She is said to have actress Rosie Perez, that Weinstein was 'destroying' her career. 

Perez told The New Yorker: 'She was riding high, and then she started acting weird and getting reclusive. It made no sense. Why did this woman, who was so talented, and riding so high, doing hit after hit, then all of a sudden fall off the map?' 

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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. 

Harvey Weinstein's lawyer claims disgraced film mogul has been made a scapegoat for MeToo movement

Donna Rotunno told ITV News her client, Harvey Weinstein, has been made a 'scapegoat'

Donna Rotunno told ITV News her client, Harvey Weinstein, has been made a 'scapegoat'

The lawyer representing Harvey Weinstein claims he is 'not a rapist' and has been made a 'scapegoat' for the #MeToo movement.

Donna Rotunno said a 'band of sisterhood' could 'cloud true events and facts' during the disgraced film mogul's upcoming rape and sexual assault trial in New York. 

In an interview with ITV News, Rotunno accused the #MeToo movement of going 'too far' and said he had a right to a fair trial. 

Once one of Hollywood's most powerful producers, Weinstein has now been accused of sexual assault, harassment and misconduct by dozens of women, from famous actresses to assistants at his former company, that triggered the #MeToo movement. 

'I met with Harvey, I spoke with Harvey and from day one I didn't believe that he was a rapist,' Rotunno told ITV News in her first UK broadcast interview.

She said: 'Harvey has the right to a defence. Harvey has the right to a fair trial. Harvey has the right to be presumed innocent.

'I do think he's been made a scapegoat and I think that Harvey is accused of doing things that have happened for decades and decades and decades.'

Asked if the #MeToo movement had gone too far, Rotunno said: 'I do think anything that strips of your right to a fair trial puts you in a circumstance you have to say that it's gone too far. 

Rutunno claimed there was 'almost a celebrity status that comes with making some kind of a claim against Harvey'.

She added: 'I think that band of sisterhood may cloud the true events and facts.'

The New York lawyer told ITV News correspondent Rebecca Barry that she confident that under cross-examination she would expose what she called 'lies'.

Questioned on whether a woman would accuse a man of rape because they're fame hungry, Rotunno added: 'I think to say that women won't lie is not true. I think women do lie, I think women have lied and that's the unbelievable benefit of cross examination.'

She went on to say that she believes if found not-guilty, Weinstein would 'come back stronger'.

'He has that kind of fortitude he has that grip that I think pushes people forward. he's really extraordinary in that way and I do, I think that he can come back bigger than before.'

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WHAT HAPPENS NOW? THE CHARGES AGAINST HARVEY WEINSTEIN

Harvey Weinstein, 67, has pleaded not guilty to charges of assaulting two women in New York. 

More than 80 women have accused Weinstein of sexual misconduct dating back decades but he only faces five criminal counts in New York - two counts of rape, one count of criminal sexual act and two counts of predatory sexual assault. 

He faces life in prison if convicted on the most serious charge, predatory sexual assault.  

One of the women Weinstein was charged with assaulting, former production assistant Mimi Haleyi, has said that Weinstein sexually assaulted her in 2006. Prosecutors say Weinstein raped the second woman, who has not been publicly identified, in 2013. 

Harvey Weinstein, 67, has pleaded not guilty to charges of assaulting two women in New York. More than 80 women have accused Weinstein of sexual misconduct dating back decades but he only faces five criminal counts

Harvey Weinstein, 67, has pleaded not guilty to charges of assaulting two women in New York. More than 80 women have accused Weinstein of sexual misconduct dating back decades but he only faces five criminal counts

The trial is expected to last for around six weeks.  

Los Angeles prosecutors have also charged Weinstein with sexually assaulting two women there on successive nights during Oscar week in 2013.

Lawyers for Weinstein had no immediate comment on the new charges, though he has repeatedly denied any wrongdoing. 

Weinstein faces up to 28 years in state prison if he is convicted of the charges filed in LA of forcible rape, forcible oral copulation, sexual penetration by use of force and sexual battery by restraint. 

His arraignment has not yet been scheduled and prosecutors will recommend $5 million bail. Weinstein is expected to appear in court in California after his trial in New York is finished.   

Here is what to expect from the trial:

WHO ARE THE ACCUSERS?

Weinstein is accused of sexually assaulting production assistant Mimi Haleyi, pictured, in 2006 and raping another woman in 2013

Weinstein is accused of sexually assaulting production assistant Mimi Haleyi, pictured, in 2006 and raping another woman in 2013 

More than 80 women have publicly accused Weinstein, 67, of sexual misconduct, helping to fuel the #MeToo movement over the last two years. The criminal charges against him refer to just three accusers.

Mimi Haleyi, a former production assistant on a Weinstein Company television show, has said that Weinstein forcibly performed oral sex on her in his Manhattan home in July 2006.

Actress Annabella Sciorra, best known for her role on HBO's The Sopranos, has said Weinstein raped her in her Manhattan apartment in 1993.

Prosecutors have accused Weinstein of raping another woman in March 2013 in Manhattan. She has not been publicly identified.

Weinstein has said that any sexual encounters he had were consensual.

WHAT ARE THE CHARGES?

Weinstein is charged with a criminal sexual act in the first degree against Haleyi, and with rape for the 2013 allegation. He is charged with predatory sexual assault over both allegations.

Sciorra's allegation is too old to be the basis of a separate charge, but is a crucial part of the predatory sexual assault charges, which require prosecutors to establish a pattern of serious sex crimes against multiple women.

Predatory sexual assault is the most serious charge against Weinstein, carrying a maximum sentence of life in prison.

WHO WILL TESTIFY AGAINST WEINSTEIN?

Haleyi, Sciorra and the 2013 accuser are almost certain to testify in a trial that is expected to last up to eight weeks.

Prosecutors may also call three other women to testify about encounters with Weinstein, even though he is not formally charged with crimes against them. Their testimony is intended to bolster the charges by showing that Weinstein had a consistent pattern of behavior.

Prosecutors have also said that they expect to call Barbara Ziv, a professor at Temple University in Pennsylvania, to testify as an expert on the trauma resulting from sexual assault.

WHAT IS WEINSTEIN'S DEFENSE?

While criminal defendants and their lawyers typically avoid revealing their strategy before trial, Weinstein has dropped some hints.

Weinstein's lead lawyer, Donna Rotunno, told Reuters that Weinstein had a 'slew of witnesses ready to go.' She has said the defense would be introducing emails and text messages to prove that Weinstein's accusers maintained relationships with him after his alleged assaults.

His lawyers have also said they plan to call psychologist Deborah Davis, of the University of Nevada, Reno, to testify as an expert on memory, suggesting that Weinstein may try to call his accusers' recollections into question.

Harvey Weinstein was pictured smiling as he arrived at a New York court on January 6 as his lawyers and a judge handle the final preparation for his trial on charges of rape and sexual assault

Harvey Weinstein was pictured smiling as he arrived at a New York court on January 6 as his lawyers and a judge handle the final preparation for his trial on charges of rape and sexual assault

WHAT OTHER LEGAL RISKS DOES WEINSTEIN FACE?

Even if he is acquitted in Manhattan, Weinstein faces separate criminal charges announced on Monday by prosecutors in Los Angeles. Lawyer Rotunno declined immediate comment on those charges.

Weinstein was charged with sexually assaulting two unidentified women in 2013, said Los Angeles District Attorney Jackie Lacey. He was charged with raping one woman and sexually assaulting the other.  

Lacey said the timing of the charges was unrelated to the New York trial.

But there is some connection between the cases. One of the Los Angeles accusers is expected to testify in the New York case to help prosecutors establish what they say was Weinstein's pattern of forcing himself on young actresses and women trying to break into Hollywood.

Weinstein is expected to appear in court in California after his New York trial, Lacey said.

The Hollywood mogul stumbled up the stairs as he arrived at a Manhattan courthouse on January 8

The Hollywood mogul stumbled up the stairs as he arrived at a Manhattan courthouse on January 8

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