Opening arguments begin on Wednesday in the rape retrial of the movie producer Harvey Weinstein at Manhattan criminal court and defense lawyers want the judge to block prosecutors from showing jurors embarassing photographs of their client’s naked body. 

“The people,” defense attorney Diana Samson lamented on Tuesday afternoon, speaking about the prosecutors from the Manhattan District Attorney’s Office, “want to submit pictures of Mr. Weinstein’s private parts.” The attorneys were raising last-minute pre-trial issues with the judge the day before opening statements. “No relevance,” Ms. Samson added, referring to the photographs, “just to inflame the jury.”  

The pictures were taken in 2018 by the district attorney’s office. On Tuesday, the presiding judge, Curtis Faber, asked if the sensitive photographs, which prosecutors want to submit as evidence, had also been submitted during Mr. Weinstein’s first trial. The attorneys confirmed they had been shown to the jury.   

In that trial, which took place in the same courthouse, in February 2020, the jury convicted Mr. Weinstein of rape in the third degree and one count of criminal sexual act. He was sentenced to 23 years in prison. But last year the highest court in New York, the Court of Appeals vacated the conviction and ordered a new trial, ruling that the trial judge had wrongly admitted damaging testimony by women whose allegations were not part of the case and thus prejudiced the jury.

On Tuesday, prosecutors told the judge the nude photographs were relevant to the account of one of the alleged victims, the former aspiring actress Jessica Mann, who accuses Mr. Weinstein of raping her in 2013.   

“I can’t prerule on every topic,” Judge Faber said. “It would spoil the trial.” He told the attorneys he would decide on the matter when it came up during the trial.   

In 2020, Ms. Mann had testified that Mr. Weinstein’s genitals appeared to be “deformed.” Vulture reported that Ms. Mann said, “The first time I saw him fully naked… I thought he was deformed and intersex. He has an extreme scarring that I didn’t know; maybe [he] was a burn victim.”  

“He does not have testicles, and it appears that he has a vagina,” Ms. Mann added, according to Vulture. Prosecutors verified her claim and showed the jury nude photographs of Mr. Weinstein, when they called a photographer for the Manhattan district attorney’s office to the witness stand, who had previously taken the pictures of Mr. Weinstein during the investigation into the case. 

The pictures were not shown to the public, nor are they part of the public record, but two sketch artists were able to see enough, when the photos were passed around in the jury box, to draw images, which were then published in the media. According to numerous reports, some jurors had rather strong reactions when they saw the photographs. “One male juror’s eyes widened, lifting his eyebrows slightly. Two women appeared to wince,” Victoria Bekiempis wrote in her article for Vulture.

The defense argued then, and argues now, that Mr. Weinstein and Ms. Mann had an intimate relationship over the course of several years, that their sexual encounters were consensual, and that passing around the photos in court was done for “no other reason than to shame Mr. Weinstein.”  

The movie producer, who co-founded the independent movie and television production company Miramax with his brother, Bob Weinstein, in 1979, and produced a plethora of iconic films like “Shakespeare in Love,” “The Talented Mr. Ripley,” “The English Patient,” and “Pulp Fiction”, has pleaded not guilty to all charges. 

Despite his victory in 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. 

However, the 73-year old Mr. Weinstein, who is wheelchair-bound, has been granted permission to stay at a Manhattan hospital during the course of the trial, so he can be treated for his numerous illnesses, like chronic myeloid leukemia and coronary artery disease.  

His defense attorney Arthur Aidala is hopeful that his client has a better chance of winning this time around because the current social climate is less hostile against men. Back in 2020, Mr. Weinstein’s conviction was seen as a mile-stone victory for the #MeTo movement, which had been propelled into the limelight of public discourse after the New York Times published a landmark expose about the film producer in 2017, in which the A-list actress Ashley Judd went on the record about how Mr. Weinstein had harassed her, then damaged her career when she refused his advances.

Ultimately, once the floodgates opened, more than 80 women came forward and accused the film mogul of harassment, sexual assault or rape, including prominent actresses such as Angelina Jolie and Gwyneth Paltrow, encouraging other women all over the world, to speak up against sexual abuse in the work place, especially in the media business, where powerful men had long preyed on young women, enabled by a culture that looked the other way.. 

But times have changed. Mr. Aidala told The Hollywood Reporter that, “People are realizing that the phrase ‘believe women’ is an anti-American and anti-ends-of-justice idiotic statement.” The defense attorney added that, “We shouldn’t believe everybody. We should determine, given our common sense, whether they’re telling the truth.” 

The prosecution will not be permitted to call any women to the witness stand who are not part of the indictment. This would exclude  “Sopranos” star Annabella Sciorra, who gave devastating testimony  in the 2020 trial that Mr. Weinstein barged into her New York City apartment and raped her in or around 1993. But prosecutors have added another charge, another woman, who alleges that Mr. Weinstein forcibly performed an oral sex act on her in a Manhattan hotel room in 2006.   

 “In this case, justice has been delayed,” Lindsay Goldbrum, an attorney for the new accuser, told reporters on April 15 outside of the courthouse. “As she has told me her experience again,” the attorney said, referring to the alleged victim, “one thing has been crystal clear: that this was not consensual. This was sexual assault with force.”

Mr. Weinstein is fighting this allegation, and the two previous allegations – the rape charge by Ms. Mann, and the charge of committing a criminal sexual act against a former “Project Runway” production assistant, Mimi Haley, in 2006 – with a team of high-profile attorneys. Besides Mr. Aidala, who has represented Mayor Giuliani, the film producer hired Jennifer Bonjean. 

According to the New York Times, Ms. Bonjean has the words “not guilty” tattooed on her arm. She successfully got the sexual assault conviction against the comedian Bill Cosby overturned, and defended the rapper R. Kelly during his criminal trial in Chicago, where he was convicted of child sex crimes. Keith Raniere, the former leader of the Nxivm sex cult, who appealed his conviction of sex trafficking, for which he was sentenced to a 120 years in prison, is also on her list of clients.  

Opening arguments will begin on Wednesday. The trial is expected to last about six weeks.