Twelve Manhattanites were selected to serve on the jury in the retrial of the film producer Harvey Weinstein at Manhattan criminal court on Monday. But the judge still needs one more alternate juror to complete his jury box. Opening arguments are expected to be heard on Wednesday.   

“Let them go to war over alternate number six,” defense attorney Arthur Aidala said in the courtroom, as both parties were huddling over their tables, discussing which juror could be selected for the last empty seat. The judge had ordered the sides to agree on someone, even if that meant to choose a person they had previously stricken.     

Mr. Weinstein, who was convicted of third-degree rape and one count of criminal sexual act in the same Lower Manhattan courthouse in 2020 and sentenced to 23 years behind bars, is getting a second chance to fight his convictions after New York’s highest court, the Court of Appeals, vacated the guilty verdict and ordered a new trial last year. The court found that the trial judge had allowed damaging testimony by women whose allegations were not part of the case and thus prejudiced the jury. 

Some legal observers say Mr. Weinstein has a better chance to fight the sexual abuse, harrassment, and rape allegations today than he did five years ago, when he was reviled as a pivotal villain of the #MeTo movement. The movement’s fervor has cooled with the return to power of President Trump and a reappraisal of whether powerful men accused of misconduct by women were treated fairly. 

But a new charge has been added to the indictment. Another woman, so far unnamed, has come forward and accused Mr. Weinstein of forcibly performing an oral sex act on her in a Manhattan hotel room in 2006. The previous charges remain: Mr. Weinstein is charged with raping the former aspiring actress Jessica Mann in 2013, and forcibly performing an oral sex act on Mimi Haley, a former “Project Runway” production assistant, in 2006. 

The movie mogul, who produced notable films like “Pulp Fiction” and “Shakespeare in Love,” has pleaded not guilty to all charges. He argues that all sexual encounters were consensual.

Jury selection in the retrial has been underway since last week, as the Sun reported. By Monday evening, the presiding judge, Curtis Faber, had picked seven women and five men, including a photographer, a physics researcher, a software engineer, a retired social worker, and a dietician. Prosecutors and defense attorneys agreed on five alternates. But the judge wants to have six on the alternate panel.  

Alternate jurors are additional jurors who sit with the jury, listen to the testimony and evidence, but do not deliberate unless one of the jurors is unable to continue serving due to a sudden illness or another unforeseen circumstance. 

On Monday morning, the judge had taken dozens of potential jurors to a back room where they discussed, in private, their abilities to serve on the panel and to judge the high-profile case impartially. Finally, in the late afternoon, 24 people were chosen to be questioned in open court by attorneys from both parties, the ceremony known as voir dire.

“Is there anyone who thinks that a husband cannot rape his wife?” The deputy chief of the special victims division at the Manhattan District Attorney’s Office, Shannon Lucey, asked. No one indicated that they thought a husband could not rape his wife.   

Ms. Lucey inquired whether the potential jurors would blame a victim if they learned that she went to the defendant’s hotel room or apartment on her own free will, for putting herself in a situation of danger, and if they would thus dismiss her accusation of having been assaulted or raped. Again, no hands were raised. The prosecutor asked if the potential jurors would hold it against the victim if they learned she had kept quiet about the abuse for years. Again, no one voiced concern. 

One of the defense attorneys, Mike Cibella, asked if the prospective jurors felt that taking an oath and swearing to tell the truth meant that a witness was in fact telling the truth, or if they would be willing to believe that some people lie under oath and on the stand. 

“What about a witnesses’ demeanor?” Mr. Cibella pressed. “What if someone gets very emotional and cries, does that mean they’re telling the truth?” 

Mr. Cibella’s question was, perhaps, inspired by an incident that occurred during the last trial, when the actress Ms. Mann, who accused Mr. Weinstein of raping her, broke down crying on the witness stand. After taking a short break, Ms. Mann returned to the courtroom but she could not continue with her testimony. She told the judge she was suffering from a panic attack. She stumbled out of the courtroom, grabbing the walls for support. The jury then heard her crying and screaming from the witness room, numerous media outlets reported. A year later, Ms. Mann gave an interview to NewsNation, and said she broke down when it was exposed to the public that she was sexually assaulted when she was younger.  

“I was just brutally stretched in every way on that stand,” she told Rich McHugh, a journalist who has investigated Mr. Weinstein for years. “I just hit a breaking point and went into tremendous flashbacks. Everything that I had trapped inside of me just released…” She also described the moment that she saw Mr. Weinstein in the courtroom as “a moment that still gives me chills.”       

Mr. Cibella asked one of the prospective jurors, who had told the judge his wife is an actress, if the man had ever spoken about Mr. Weinstein with her. The man said, they had not discussed Mr. Weinstein, but the defense still chose to strike him.    

Prior to his first trial, Mr. Weinstein cycled through multiple defense teams. This time, his team appears to be stable. The team has also hired a the renowned jury consultant, Jo-Ellan Dimitrius, who helped to pick the jury that acquitted OJ Simpson. Ms. Dimitrius also picked the jury that acquitted the Marine Daniel Penny, and the jury, who acquitted Kyle Rittenhouse. She also consulted for Scott Peterson, who was convicted. 

Last week, the defense team won a small victory, when they managed to get their 73-year old client out of his jail cell on notorious Rikers Island to a hospital in Manhattan, where he will stay until the end of the trial and get treatment for his chronic myeloid leukemia, coronary artery disease, and numerous other illnesses.  

Despite the ruling of the Court of Appeals, Mr. Weinstein, remains incarcerated because he is also serving time for another conviction in California, where he was found guilty for rape, oral copulation and other sexual misconduct charges, and sentenced to 16 years in prison. His attorneys have appealed that verdict as well, and have argued that the sentence needs to be adjusted because the vacated New York conviction was factored into Mr. Weinstein’s punishment by the California judge. 

The judge ordered the parties to appear at 2 pm in court on Tuesday and name their final selection for alternate number six. Opening statements are scheduled to begin on Wednesday.