Judge moves Weinstein's trial to September

A Manhattan judge on Friday moved ex-film mogul Harvey Weinstein’s upcoming sex-crimes trial from June to Sept. 9 after holding a secret three-hour hearing on prosecution requests to introduce evidence of uncharged sexual assaults in the case.

Overruling media requests for an open hearing, state Supreme Court Judge James Burke said pretrial publicity about possible testimony from accusers in addition to the two alleged victims Weinstein is charged with assaulting — which would boost the prosecution’s chances of a conviction — would make it impossible to pick a fair jury.

The judge didn’t disclose his ruling after letting the media back into court, and attorneys said they couldn't discuss it, but defense lawyers afterward sounded like Burke might be allowing some of the so-called “Molineux” evidence prosecutors want, spinning the request as a good sign for Weinstein.

“Molineux in general is a sign of a good, strong case for the defense, and the reason is because the prosecution can’t prove their case, in their case in chief, so they want to go outside those witnesses to try to tack on and throw what you can against the wall to see what sticks,” said Weinstein lawyer Jose Baez.

Weinstein, 66, is charged with sexual assault for allegedly coercing a production assistant to engage in oral sex, and raping a second, unnamed woman on another occasion.

Typically, prosecutors are limited to introducing evidence of the crimes charged, and prohibited from telling jurors about other bad acts to suggest the defendant should be convicted because of a propensity for criminal behavior.

But under limited circumstances — when, for example, other bad acts show a unique modus operandi — evidence of  uncharged misbehavior can be admitted. It is known as “Molineux” evidence for an old New York case that dealt with the issue.

Robert Balin, a lawyer for a media consortium including Newsday, urged Burke to keep Friday’s hearing on the evidence open, arguing that publicity about Weinstein for over a year included accusations from 80 women, so the hearing wouldn’t disclose anything new. He said questioning of prospective jurors could weed out any who were biased due to the publicity, without closing pretrial proceedings. “There is an alternative,” he told the judge.

But the prosecution and defense both supported closure of the hearing, and keeping all court filings on the admissibility of the alleged uncharged acts secret.

Prosecutor Joan Illuzzi-Orbon told Burke some of the incidents prosecutors want to put into evidence have never been disclosed publicly before, and Weinstein lawyer Marianne Bertuna complained that social media and the extreme media interest in the case made it unique.

“Let’s limit the damage that’s been done here in the midst of an insatiable media frenzy,” Bertuna said.

Burke said all the evidence to be discussed at the hearing involved “personal and sexual encounters,” and noted that it would be coming out just before jury selection begins.

“Closure will prevent a substantial probability that defendant’s right to a fair trial will be prejudiced,” the judge said.

After Burke ordered reporters to leave, media lawyers tried unsuccessfully to get an appeals judge to intervene. But Balin said the appeals court ordered expedited briefs from both sides on whether case materials on the issue should be unsealed.