Motivated by #MeToo? Vetting jurors in Weinstein case will be a challenge, experts say

NEW YORK: As former movie mogul Harvey Weinstein goes to trial on rape charges next week in Manhattan, lawyers will need to keep an eye out for jurors who want to use the case to make a statement about sexual abuse following the rise of the #MeToo movement, legal experts said.

Once one of Hollywood’s most powerful producers, Weinstein, 67, has pleaded not guilty to charges of assaulting two women in New York, one in 2006 and the other in 2013.

In all, more than 80 women have accused Weinstein of sexual misconduct dating back decades.

Those accusations helped fuel the #MeToo movement, in which hundreds of women have publicly accused powerful men in business, politics, the news media and entertainment of sexual harassment or assault. Weinstein has denied the allegations and said any sexual encounters were consensual.

Jury selection is expected to begin on Tuesday following a pretrial conference on Monday, according to Danny Frost, spokesman for Manhattan District Attorney Cyrus Vance.

Selecting impartial jurors to decide the fate of a celebrity whose alleged abuse fueled the #MeToo movement presents unique challenges, experts said, as potential jurors may try to mask their bias to advance a larger cause.

“They may think, ‘I want to be the one to make sure he goes to jail. I want to be the one to do justice,’” said Roy Futterman, a New York jury consultant.

On the other hand, Futterman said, people who believe that #MeToo has gone too far and ruined the lives of innocent men, may attempt to hide their bias so they can exonerate Weinstein.

Weinstein faces up to life in prison if convicted on the top counts, predatory sexual assault.

One of his lawyers, Donna Rotunno, said the defense team will be looking at potential jurors’ social media use and responses to jury selection questions, and said she is confident that will uncover biased candidates.

“Obviously this case has a lot more notoriety and press involved with it, but that’s a concern in any case,” Rotunno said in a phone interview. “Once 12 people are put on that bench and they realize the gravity of it, they really want to be fair.”

District Attorney Vance’s office, which is prosecuting the case, declined to comment on the jury selection issue.

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

“The question … will be not whether they’ve heard of the Weinstein case and the allegations against him, but whether that publicity has made it impossible for someone to be a fair and impartial juror,” said Deborah Tuerkheimer, a Northwestern University law professor and former prosecutor in the Manhattan district attorney’s office.

Jury selection is expected to last two weeks. Experts say both sides will likely question potential jurors about their knowledge and opinion of the case, their work history and whether they have been victims of sexual misconduct.

Legal teams in high-profile trials often spend hundreds of hours building databases of potential jurors’ activity on social media such as Facebook and Twitter that might reveal bias, said Jeffrey Frederick, director of Jury Research Services at the National Legal Research Group Inc in Charlottesville, Virginia.

“It’s almost legal malpractice not to do this,” he said. “You will find people in your jury pool where you will go, ‘Whoa, this is particularly good or particularly bad for me.’”

ELIMINATING JURORS

Lawyers can excuse an unlimited number of potential jurors if they show bias for or against Weinstein. Each side can typically use “peremptory” challenges to eliminate up to three potential jurors they believe will be unsympathetic, without providing a reason.

The #MeToo movement has prompted more people who have experienced sexual assault or workplace harassment to come forward, which is likely to complicate the vetting process, Tuerkheimer said.

According to a 2018 Pew Research study, about 60% of women surveyed said they had been subjected to unwanted sexual advances or sexual harassment in their lifetime, and more than half of those reported being harassed in the workplace.

Some, but not all, of those people might be biased, Tuerkheimer said.

Experts said the prosecution may seek to eliminate jurors who say they have been falsely accused of harassment, out of fear they might sympathize with Weinstein, while the defense might excuse people who appear to be activists or favor liberal causes.

Paul Callan, a former prosecutor, said lawyers also will want to avoid potential jurors seeking to cash in on the experience.

“If books are written after the trial, that could result in a reversal,” Callan said.