MANHATTAN: As the jurors in Harvey Weinstein’s sexual assault trial wrestle with a pair of charges that could send the fallen movie mogul to prison for life, the testimony of three women who don’t even appear in his indictment could help seal his fate.
They’re known as Molineux witnesses in New York, where Weinstein is being tried, and they testified to their own encounters with him as prosecutors sought to persuade the jury that the two women he is charged with attacking never gave their consent to sex.
Such witnesses testified in the retrial of Bill Cosby in Pennsylvania, which ended in his conviction.
On Friday the jury sent a note to the judge referring to two counts of predatory sexual assault – counts one and three on the verdict sheet it’s working from – and suggesting it might be deadlocked.
“We the jury request to understand if we can be hung on one and/or three and unanimous on the other charges. Thank you,” the jurors told the judge. He told them to keep trying.
The other charges are a criminal sexual act and rape.
Weinstein is accused of forcing oral sex on “Project Runway” assistant Miriam Haley in his SoHo loft in 2006 and raping aspiring actor Jessica Mann in a midtown Manhattan hotel in 2013.
In a category by herself is the actor Annabella Sciorra, who told the jury that Weinstein raped her in the early 1990s.
Her allegations are a linchpin for the two predatory sexual assault counts, the gravest charges facing the former Hollywood power broker.
Predatory sexual assault requires a serious attack on at least two people.
To find Weinstein guilty on count one, the jury would need to be persuaded by the evidence for the alleged attacks on both Haley and Sciorra.
To convict him on count three, it would need to find that he assaulted both Mann and Sciorra.
The testimony of the Molineux witnesses may come into play as well.
Weinstein’s lawyers argue that any encounters their client had were consensual.
If the jury finds the allegations of assault from these three women credible, it may decide Haley and Mann never gave Weinstein their consent either and convict him of rape and a criminal sexual act.
And if the jurors believe Sciorra, too, that will meet the requirements of predatory sexual assault – the two counts they seem to be stuck on – and Weinstein, 67, could spend the rest of his life behind bars.
Weinstein’s lawyers have told the jury that the women had consensual, and even transactional, sex with their client, and that they “re-labelled” the encounters as assaults years after the fact in the wake of the #MeToo movement.
The first of the three witnesses, Dawn Dunning, testified that in 2004, when she was an aspiring actor waiting tables, Weinstein lured her to a business meeting in a hotel room and digitally penetrated her.
The second, Tarale Wulff, told the court that minutes after meeting the producer in 2005, when she was working as a cocktail waitress, he dragged her up a secluded stairwell and masturbated, and later raped her in his SoHo apartment.
The third, Lauren Young, said she was a model trying to make it as a screenwriter in 2013 when Weinstein trapped her in his hotel suite’s bathroom, where he stripped off the top of her dress and groped her.
Such testimony about uncharged crimes is typically considered too prejudicial to allow, but it’s permitted under limited circumstances.
While it can’t be used to suggest a defendant has a propensity to commit a crime, it can explore the defendant’s intent or a common theme.
In New York it dates back to a landmark 1901 decision involving a chemist named Roland Molineux who was accused in a fatal cyanide poisoning.
New York State Supreme Court Justice James Burke ruled in December, over the objections of the defence, that the three accusers could be called to rebut Weinstein’s argument that the encounters were consensual and to show his “intent to use forcible compulsion” on Haley and Mann.
The decision was unsealed on Feb 7, revealing that prosecutors sought to call a total of five such witnesses, the same number as at the Cosby trial.
In the end, Burke allowed three.
“The consistent theme is that the defendant used his business stature in the movie industry to lure women to believe that he would connect them to careers in the entertainment industry,” Burke wrote, adding that the testimony could help the jury of seven men and five women understand why Haley and Mann feared reprisals if they went to the police.
He said it could help the jurors decide whether Weinstein “created an engineered situation where he could be alone” with Mann and Haley “and then sexually assault them.”
Weinstein’s lawyers have cited Burke’s Molineux ruling, as well as other decisions that went against them, in calling for a mistrial.
Burke has denied the requests.