For a brief moment, Harvey Weinstein was only the third most hated accused sex offender in America. Then Jeffrey Epstein took himself out of the running, and he’s back to the second spot, with trial looming in Manhattan next month. With his 29th* Dream Team now in place, Weinstein has moved for a change of venue.
“New York City is the least-likely place on earth where Mr. Weinstein could receive a fair trial,” wrote Arthur L. Aidala, a lawyer for Mr. Weinstein.
Certainly “news” of Weinstein’s guilt has been pervasive in the New York media, including “Mr. Weinstein’s name was mentioned online by Page Six, The New York Post’s irreverent gossip column, more than 11,000 times.” Even for the Post, that’s a lot. But it’s not merely the volume, or even the absolute certainty of Weinstein’s guilt, but the nature of the peculiar audience in Manhattan.
The court papers that seek a change of venue also contend that Times Square billboards and newsstands on every corner mean city residents cannot avoid headlines related to Mr. Weinstein, and that Manhattan is the epicenter of global hashtag-driven movements like #MeToo.
Whether Manhattan is as progressive as its denizens like to believe, except when something touches their lives in which case New Yorkers can be downright regressive, one area where it seems overwhelmingly unified is in its embrace of claims of female oppression and condemnation of male sexual assault. Weinstein falls squarely into the middle of Manhattan’s cocktail party neo-feminist radicalism.
Then again, is there anywhere in New York where Weinstein could pick a jury that isn’t already aware of how guilty he is?
It is not at all clear that Mr. Weinstein, 67, has a better reputation elsewhere in the state.
Motions for change of venue are routinely brought in high profile cases where pervasive pre-trial publicity has likely tainted the jury pool to the extent that it would be essentially impossible to pick a jury that wasn’t prejudiced against the defendant. Motions for change of venue are routinely denied.
For the court, the question is balancing the defendant’s right to a fair and neutral jury with the law’s presumption that cases be tried in the locale where the offense occurred. Despite there being no strong doctrinal reason why a case needs to be tried in a particular courthouse, since the evidence doesn’t change if it’s moved to a different location, and impartial jurors from the home venue are theoretically fungible with impartial jurors from another, it’s a logistical annoyance.
Prosecutors trying the case don’t live in a distant venue, or have offices or staff there to do their running. Witnesses may have to travel farther. A courtroom and possibly the judge have to be glommed from other work, disrupting their normal routine and possibly tee times.
To be a little less snarky about it, every high profile case presents the same problems of negative publicity poisoning the jury pool, and if they grant a change in venue in one case, they fear they will have to do it all the time. After all, there’s always a high profile case going on at any given time because the papers make cases high profile or they would have nothing to write about.
But Weinstein’s case really is that one in a hundred, a high profile case that has been so devastated by negative publicity and the shocking lack of any question that maybe, just maybe, he isn’t completely guilty, that his trial should be moved.
As an alternative to a Manhattan court, Mr. Aidala’s motion proposed moving the trial to Suffolk County, the easternmost county in Long Island, which is within New York City’s media reach, but has more conservative politics. Another option, he wrote, would be Albany County, a longtime Democratic bastion about 150 miles north of New York City.
Outside of the Hamptons, there isn’t a huge demand for the New York Times in Suffolk County, and nobody reads the Post. It’s not that far from Manhattan that the logistics would be terrible, and the residents tend to be far more insular and far more concerned with working for a living than celebrity sex complaints. Suffolk County would seem to be a smart choice by the defense, and a fair alternative to Manhattan if Weinstein is to have half a chance at getting an impartial jury. There may be no place where Weinstein’s name is unknown, his story untold, but at least the hatred and prejudice is somewhat less palpable in Suffolk County.
But then, that’s only one of the issues Weinstein faces as he marches toward trial.
Mr. Weinstein has denied the allegations and has said the sexual encounters were consensual. Earlier this year, he built a “dream team” of heavy-hitting lawyers that has since fallen apart. The motion filed Friday came about a month after Mr. Weinstein hired two new lawyers, Donna Rotunno and Damon M. Cheronis, to take over his case.
Regardless of where the case is tried, who tries it will prove far more important to the outcome in this otherwise eminently defensible trial. The musical lawyers game played thus far may mean that Weinstein is his own worst enemy, not for lack of good lawyers but for inability to work with them, take their counsel and let them do their job without his micromanaging the defense.
Weinstein could do just as well blowing his case in Suffolk County as in New York County if he refuses to let his lawyers do their jobs. He may have mad skillz making movies, but his trial strategy is no better than any other defendant who has a fool for a lawyer. It’s hard enough for lawyers to step in at the last moment, vet everything that happened in a huge case and be prepared for trial. It’s impossible when the defendant won’t let them.
*A slight exaggeration, but beyond Ronald Sullivan, he’s lost his best choice, Ben Brafman, his second team replacement, Jose Baez, and a flurry of others. The usual reason behind these flights is an overbearing client or money issues (not the lack of it, but the lack of interest in paying it), Or both.